Part II: Retroactive Application of the Fair Sentencing Act

An integral part of the Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act, also known as the FIRST STEP Act, which was signed into law on December 21, 2018, was the portion that formally made retroactive the Fair Sentencing Act of 2010. According to the United States Sentencing Commission, this one change may reduce sentences for as many as 2,660 inmates. See Sentence and Prison Impact Estimate Summary (last viewed January 20, 2019). For this reason, any person who has been convicted of a crack cocaine related offense prior to 2010 should immediately retain an experienced criminal defense attorney who may apply for a sentencing reduction on his or her behalf.

Specifically, in 2010 Congress enacted the Fair Sentencing Act ("FSA"), which among other provisions, eliminated the significant disparity between sentences for crack and powder cocaine offenses which had been roundly determined to be unfair. Indeed, as far back as 2007, the United States Supreme Court recognized this disparity - which punished those convicted of crack cocaine related offenses utilizing a 100:1 crack to powder cocaine ratio - and permitted lower courts to ignore the crack cocaine sentencing guidelines if they found them to be "disproportionate and unjust" as they applied to a particular case. Kimbrough v. United States, 552 U.S. 85, 93 (2007). Then, only two years later, in United States v. Spears, the Supreme Court re-affirmed its holding in Kimbrough and upheld a district court's decision to utilize a 20:1 crack to powder ratio at sentencing. United States v. Spears, 129 S. Ct. 840, 844 (2009). Ultimately, the FSA reduced the disparity to 18:1.

The reason that the sentencing disparity has now been quashed is that a central presumption behind it - that "well-organized gangs use[] violence" in the sale of crack cocaine - has not been borne out by empirical data. United States Sentencing Commission: Hearing on Crack Cocaine, 64-68 (Nov. 1993) (statement of Paul J. Goldstein). As the Sentencing Commission exposed in a 2007 report to Congress, "violence occurred in 6.3 percent of powder cocaine crimes [versus] 10.4 percent of crack cocaine crimes." Restoring Fairness to Federal Sentencing: Addressing the Crack-Powder Disparity: Before the Senate Judiciary Committee, Subcommittee on Crime and Drugs, 111 Cong. 8 (2009) (statement of Lanny A. Breuer). Such a minor disparity rocks the belief that "crack cocaine is more often associated with systemic crime ... particularly the type of violent street crime so often connected with gangs, guns, serious injury and death." United States Sentencing Commission: Cocaine and Federal Sentencing Policy (1997). Although the FSA of 2010 corrected this disparity with an 18:1 ratio, it remained uniformly unsettled if there was any retroactive application to this change to assist those convicted and sentenced prior to 2010. The FIRST STEP Act resolved this issue by making the FSA retroactive, which may cause the sentences of over 2500 inmates to be reduced.

Hiring a top New York criminal defense attorney to defend you in any federal criminal prosecution or assist with any questions concerning the applicability of the FIRST STEP Act is crucial and will ensure that every viable defense or avenue for a sentencing reduction is explored and utilized on your behalf. The experienced criminal lawyers at the Law Offices of Jeffrey Lichtman have successfully handled countless federal cases, exploiting holes in the prosecution's evidence to achieve the best possible result for our clients. Contact us today at (212) 581-1001 for a free consultation.