"Even when laws are written down, they ought not always to remain unaltered."
"The strictest laws often causes the most serious wrong."
"It is the spirit and not the form of the law that keeps justice alive."
A couple of cases that challenged the issue of whether the Fair Sentencing Act ("FSA") applies to defendants in crack cases where their actions occurred prior to the FSA being passed but were not sentenced until after the FSA went into effect were granted cert to the United States Supreme Court last week. The interesting development in those cases is that the Solicitor General for the United States may agree with the defense in both cases and argue that the FSA applies retroactively to cases where the defendant was not sentenced until after it went into effect.
This issue may not seem like a "big deal" to the average person but it makes a huge difference to many defendants and families of defendants in federal cases involving the sell or possession of crack cocaine. The Federal Sentencing Guidelines punished defendants involved in crack cocaine cases much harsher than defendants involved in powder cocaine cases without any real policy justification. Due to the unjust and unfair distinction between the cases the current Presidential Administration and Congress passed the FSA in 2010 to address much (but not all) of the unfair disparities. However, the FSA did not contain an obvious and explicit retroactive clause, hence the reason for the cases around the country and the need for the United States Supreme Court to step in.
As a criminal defense attorney I must admit that I am biased and I am hoping for a ruling from the United States Supreme that the FSA is retroactive. I guess only time will tell.