The Fair Sentencing Act of 2010 dramatically reduced the disparity between sentences for selling of crack cocaine versus those for powder cocaine. Before the Fair Sentencing Act of 2010 was passed, a person convicted of selling crack cocaine was subjected to a sentence that was the same as the sentence for selling an amount of powder cocaine that was hundred times as much. That disparity was reduced to 18 to 1 by the Fair Sentencing Act of 2010, which went into effect on August 3, 2010. However, the question about whether the law applied to those individuals who had been convicted but not sentenced before August 3, remained unanswered.

San José criminal defense lawyers expect an answer to that question soon. The Supreme Court is expected to announce its decision on the matter. Typically, Congress is expected to decide whether a new law should apply retroactively, but in this case, Congress has chosen to remain silent.

The Supreme Court decision will come in a case involving 2 men who had been convicted of crack cocaine offenses, before the Fair Sentencing Act went into effect in August. However, the 2 men had not been sentenced at the time the new rule went into effect. They argue that they are eligible for shorter sentences under the Fair Sentencing Act, and that it is unfair for them to be sentenced under the old law, after the new rule came into effect.

Lower courts have sided against the defendants, and the Justice Department defended a harsher sentence for these crack cocaine offenses under the old law. The Supreme Court ruling is expected in the next couple of months.