THE Fair Sentencing Act of 2010 addressed a gross inequity in federal sentences by reducing the disparity in punishment for a crime involving crack versus powdered cocaine.

Previously, under a 1986 law, 50 grams of crack (the weight of a candy bar) led to a mandatory minimum sentence of 10 years the same sentence that applied to 5,000 grams of powdered cocaine (enough to fill a brief case). A street dealer of crack cocaine often got a longer sentence than the major trafficker who sold the powdered cocaine made into crack. The new law cut the 100-to-1 ratio to 18-to-1 not equalising the penalties as it should have but markedly reducing the difference.

In two cases the Supreme Court heard, the issue is whether the sentencing law should apply to people who were convicted of cocaine crimes, but not yet sentenced, before it went into effect. The Justice Department initially argued that the new rule should apply only to crimes committed after the law was signed. To its credit, it changed its stance in July 2011, saying that since the goal of the law was to ‘rectify a discredited policy,’ the rule should apply to all defendants sentenced after the law’s passage.

This is clearly the right way to read the law, given the legislative history and the text, including the ‘emergency authority’ for the US.

Sentencing Commission to quickly put out guidelines. A rule of leniency requires that any ambiguity in a criminal statute be resolved in favour of defendants especially when the old sentencing rules resulted in huge racial disparities, as Justice Sonia Sotomayor pointed out.

The majority of crack users are white and Hispanic, but, as the sentencing commission reported, in 2010 blacks made up more than three-fourths of those sentenced under federal crack cocaine laws. Most were low-level offenders. The high number of black defendants and the disparity in treatment of crack versus powdered cocaine led federal sentences for blacks to jump to almost 50 percent higher than for whites in 1990.

Congress, the Obama administration and many federal judges agree that there is a need to correct a grossly unfair and unjustifiable sentencing scheme.

The justices should allow the 2010 law to apply to all defendants sentenced after its enactment.