High court debates cocaine sentencing law

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The Fair Sentencing Act of 2010 reduced the sentencing disparity between defendants convicted of crack cocaine-related crimes and those convicted of crimes involving the powder version of the drug.

But the law left open the question of whether the new rule applied to defendants who were sentenced after its enactment, but for crimes that were committed before the law was in place.

The justices took a look at the issue April 17 during arguments in the consolidated cases of Dorsey v. U.S. and Hill v. U.S.

In one case, the defendant entered a guilty plea for possession of 5.5 grams of crack. He was sentenced a month after the act took effect, but the judge said the act didn’t apply because his crime occurred two years before the law was passed.

In the other case, the defendant was convicted of possessing more than

50 grams of crack and sentenced several months after the act was passed. The judge said the act didn’t apply because his offense took place before the law went into effect, and imposed the 10-year statutory minimum sentence. The judge noted that but for the statutory minimum he would have imposed a sentence of less than five years.

Both defendants appealed, and the 7th Circuit upheld both convictions. There is a split in the circuits on the issue, and the Supreme Court granted certiorari.

Begging the question

Stephen Eberhardt, the Tinley Park, Ill., attorney representing the defendants, said Congress’s decision to reduce the disparity speaks clearly to its intent to stop unfair sentences for every defendant that went before the court, regardless of when the alleged crime took place.

“Why would Congress want district courts to continue to impose sentences that were universally viewed as unfair and racially discriminatory?” Eberhardt asked.

But Chief Justice John Roberts Jr. noted “Congress … would have known (the statute) required an express statement if they wanted to apply the change retroactively.”

“So why shouldn’t we hold them to that standard?” Roberts asked.

“I don’t believe that Congress felt that that was the standard,” Eberhardt said, adding that the court could rule in the defendants’ favor as long as it finds that “the fair implication and the intent of Congress (was) that this new statute applies” in all cases regardless of the time of the alleged crime.

Deputy Solicitor General Michael Dreeben argued as amicus in support of the defendants, pointing out that guidelines under the act require all cases to be handled in a certain way, not just cases involving crimes committed after its passage.

A contrary reading would mean that “the guidelines would not be conformed to applicable law for the defendants who are sentenced after the FSA. They would be conformed to inapplicable law,” Dreeben said.

“New guidelines as to which people?” Justice Antonin Scalia asked. “You are begging the question.”

New law or old law

Miguel Estrada, a partner in the Washington office of Gibson Dunn and amicus appointed by the court to argue in support of the rulings below, said the case may seem messy, but the legal rationale was not.

“I think this is a difficult case for public policy but is not a difficult case for legal doctrine,” Estrada said.

Defendants who are convicted of crimes that occurred before the act’s enactment can still petition for a reduced sentence according to Sentencing Commission guidelines. But Justice Sonia Sotomayor wondered if that was enough of a remedy.

“Once Congress has said this law’s not being enforced in a race-neutral way, we want to fix it, why shouldn’t our presumption be that the fix is immediate rather than delayed?” Sotomayor asked.

“I think it would be wrong to assume that the passage of the act reflects Congress’s concession of intentional discrimination,” Estrada said. “I think it does recognize that there were members of Congress that had concerns about the disparate impact of the law.”

“But Congress did say: ‘Sentencing Commission, you conform your new guidelines to applicable law,’” noted Justice Ruth Bader Ginsburg. “The applicable law has got to be the new law, because if it were the old law, there is nothing to conform.”

“I’m prepared to admit for purposes of this case … that Congress intended that the guidelines had to line up with the penalties of the FSA,” Estrada said. “The question is … for whose benefit?”

If Congress intended a retroactive effect, Estrada said, “I would fully expect them as a citizen to cut the sentences of everybody who is already serving the sentence irrespective of finality. And the fact that Congress did not do that [is] powerful evidence that” the previous law applies to the defendants.

A decision is expected by June.