Michael McNeill

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The 1980s was a transitionary period in American history, when the general acceptance of casual drug use, which is still associated with the 1960s and 1970s, began to turn to widespread disapproval. The practice and dangers of "freebasing"-smoking cocaine that had been purified with ether and inhaled over an open flame-came into the public spotlight in 1980 when a prominent comedian immolated himself in an accident blamed on the dangerous practice. Beginning in 1984, a cheaper, more accessible form of freebase cocaine, called "crack," began growing in popularity in New York, Miami, and Los Angeles. In November 1985, newspapers began running articles that raised public alarm over this new, cheap, and powerful form of cocaine. By mid- 1986, the term "crack epidemic" had come into widespread use as a way to describe this new drug's booming popularity.

In response to the rising numbers of crack users across the nation, Congress took swift and decisive action by passing the Anti-Drug Abuse Act of 1986. This law rewrote federal drug regulations that had been in place since 1970 and added, for the first time, sentences for possession of controlled substances that varied based on both the substance and the quantity possessed. The passage of the Act had been preceded by almost a year of regular congressional hearings on the dangerousness of crack cocaine, with the conversations escalating in both alarm and urgency. As a result of these hearings, the quantity of crack that a defendant was required to have in order to trigger a mandatory minimum sentence of 5 or 10 years imprisonment was set at 1% of the quantity of cocaine required to trigger the same sentence. ...

Since then, the call to end the disparity between crack and cocaine sentencing has drawn a great deal of support, and eventually Congress passed the Fair Sentencing Act of 2010. This Act has reduced the 100:1 ratio used in crack and cocaine sentencing to one that treats the possession of crack somewhat more leniently. Furthermore, because the United States Sentencing Commission has modified the United States Sentencing Guidelines in accordance with the Fair Sentencing Act, and has chosen to make those modifications retroactively applicable to people serving sentences for crack convictions that predate the Act, this area of law is likely to be the subject of a large amount of litigation in the coming years-particularly as prisoners continue to struggle to receive the sentencing reductions to which they are entitled. This Comment explores the issues and outcomes of those cases, including current circuit splits in the area, as well as the possibility for future litigation in the United States Supreme Court and other possible directions for this rapidly-evolving area of federal criminal law.