The Lawletter Vol 36 No 3, November 11, 2011
The U.S. Congress enacted the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372 (2010), in order to "restore fairness in Federal cocaine sentencing" by reducing the extreme disparity that then existed between the severity of punishment for possession or distribution of powder cocaine and the possession or distribution of crack cocaine. However, significant questions of fairness in sentencing have arisen since the passage of the Act, because courts have refused to apply the Act to defendants who had been sentenced prior to its effective date but whose cases were not yet final, despite the fact that this approach has led to grossly disparate sentences between similarly situated defendants, depending on when their sentencing was scheduled.
In the recent case of United States v. Speed, No. 10-1532, 2011 WL 3890454 (7th Cir. Sept. 6, 2011), for example, the court upheld the district court's sentencing of the defendant to a mandatory term of life in prison under the prior version of 21 U.S.C. § 841(b)(1)(A)(iii), despite the fact that the defendant's sentence under the amended law—which had been enacted just five months after his sentencing and while his appeal was pending—would have been a maximum of 10 years in prison. The court denied the defendant's claim that Congress had intended the Fair Sentencing Act to be applicable to all cases that were not final prior to its enactment, finding that the general federal saving statute, 1 U.S.C. § 109, applied to the Act and prevented it from operating retroactively. The court also rejected the defendant's constitutional arguments, concluding that there was no equal protection violation and that the imposition of a mandatory life sentence for his crime did not constitute "cruel and unusual punishment" in violation of the Eighth Amendment. Relying upon the Supreme Court's ruling in Ewing v. California, 538 U.S. 11 (2003) (upholding California's three‑strikes law), the court found that the enactment of the Act did not establish that society's "standards of decency" have evolved to the point that the defendant's mandatory life sentence for a small amount of crack cocaine (equivalent to less than a five‑pound bag of flour), imposed under the old statutory scheme, is now cruel and unusual.