Fair Sentencing Act of 2010

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S. 1789, known as the Fair Sentencing Act of 2010, passed in Congress on July 28, 2010, and President Obama signed the bill into law on August 3, 2010.

In brief summary, the new law does four main things: FIRST, it changes the statutory 100:1 ratio in crack/powder cocaine quantities that trigger the mandatory minimum penalties under 21 U.S.C. § 841(b)(1); SECOND, it reduces the statutory 100:1 ratio to 18:1, by increasing the threshold amount of crack cocaine to 28 grams (for the 5-year mandatory minimum) and 280 grams (for the 10-year mandatory minimum); THIRD, it does away entirely with the 5-year mandatory minimum for simple possession of crack, and FOURTH, it directs the U.S. Sentencing Commission to amend the Sentencing Guidelines to reflect the statutory changes made by the new law.

What does this mean for people in the federal system? It means that those sentenced after November 1, 2010 will receive sentences under the new lower Guidelines.

What does it mean for those who have already been sentenced? Nobody is exactly certain.

We will have to wait to see whether the Sentencing Commission votes to make the Guidelines retroactive. Most believe that it will be November 1, 2011 before the Sentencing Commission can do so, but some believe it may be possible for it to happen as early as November 1, 2010. We will have to wait to see.

We will further have to wait to see whether, and to what extent, the changes to the Mandatory Minimums will be retroactive. There is a difference of opinion among those following this, as well. Some believe that it is already retroactive because the language of the bill doesn’t say that it is not retroactive. Some believe that it is not retroactive because the bill does not say that it is. Some believe that Congress will have to pass a separate bill to make it retroactive.

The bottom line is that we will have to wait, at least until November of 2010 to begin to unravel all of this and to begin to have more clarity.

In the meantime, what friends and relatives can do to prepare to try to help is to locate a copy of the defendant’s Presentence Investigation Report (sometimes referred to as the “PSI” or “PSR”). This is the document that I, or any other attorney, will need to review an individual’s case for eligibility under the new law when the time comes. Starting this November, I will begin reviewing individual cases for eligibility.

Those sentenced before November 1, 2007, may have additional options under the new law, even if the Fair Sentencing Act of 2010 is not made retroactive, which may be worth exploring in November.

Finally, I am finding still that there are individuals who may be eligible for relief under the 2007 retroactive crack amendment, but who have not filed a motion yet. Further, I have found that a number of inmates’ motions were improperly denied because the motion was filed before those involved had a thorough understanding of the applicability of the 2007 guideline amendment. So, for anyone sentenced before November 1, 2007, it may be worthwhile to read the article below on the 2007 Retroactive Crack Amendment.

For other resources that may be helpful to federal inmates and their families, please see my full website at: www.drugandgunlawyer.com.