20 Nov D.C. Circuit reconfirms no retroactivity to narrowing cocaine sentencing disparity.
In August 2010, the U.S. Congress passed enacted the Fair Sentencing Act ("FSA"), reducing the sentencing disparity for cocaine base/crack versus powder cocaine from 100-to-1 to 18-to-1, by increasing the quantity of crack needed to trigger the ten-year mandatory prison minimum.
Crack and powder cocaine are pharmacologically identical, and should not have a sentencing disparity. Moreover, when the disparity is further narrowed, this should be done by increasing the quantity of crack needed to trigger any mandatory minimum sentences, rather than cynically reducing the quantity of powder cocaine needed to trigger mandatory minimum sentencing.
Thomas Fields was convicted by a jury for "distributing 50 grams or more of crack and for possessing with intent to distribute another 50 grams or more." Fields v. U.S., ___ F.3d ___ (D.C. Cir., Nov. 9, 2012). Originally set for a 2009 sentencing, he obtained a few sentencing date continuances.
In denying Fields™s third continuance request, the trial judge explained that it was uncertain whether the FSA would apply to Fields and that it saw no reason to ‘postpone every crack sentencing until Congress acts, because none of us knows when Congress acts, whether it™s going to act, what they™re going to do.’ Hr™g Tr. 6 (July 8, 2009). As we have previously held, this represents a perfectly adequate reason for denying a continuance. United States v. Lawrence, 662 F.3d 551, 553 (D.C. Cir. 2011)." Fields.
Fields confirms that the Fair Sentencing Act only applies to those sentenced once the Act became law, and does not apply retroactively, noting:
To be sure, the FSA, as interpreted by Dorsey, produces a certain degree of arbitrariness. Individuals who commit the same offense on the same day may receive different sentences based purely on when they are sentenced”a date determined by the vagaries of the judicial system and not anything related to the goals of sentencing. But disparities, reflecting a line-drawing effort, will exist whenever Congress enacts a new law changing sentences. Dorsey, 132 S. Ct. at 2335.