FedSoc Blog

The Chicago Tribune covers the sentencing decision:

Ruling in two cases from Chicago, the U.S. Supreme Court ruled today that criminals who were arrested but not yet sentenced for crack cocaine offenses should be able to take advantage of newly reduced sentences.

Corey A. Hill and Edward Dorsey were arrested in 2007 and 2008 in Illinois for selling crack cocaine and were given mandatory 10-year sentences in Illinois.

But they weren't sentenced until after the Fair Sentencing Act went into effect in August 2010. Under the new law, Hill and Dorsey would face just three or four years in jail.

Justice Stephen Breyer said in a 5-4 decision today that the courts should have used the new law to sentence the two men. Chief Justice John Roberts, and Justices Antonin Scalia, Clarence Thomas and Samuel Alito dissented.

The Fair Sentencing Act reduced the long prison terms meted out to people caught with small amounts of crack cocaine. But the law did not make clear whether it should apply to cases that were pending when it was signed.

Last year, the U.S. Sentencing Commission voted to adjust the sentences for as many as 12,000 defendants who were serving time for crack offenses. But the commission did not have the authority to change many of the sentences mandated by Congress.

The sentencing disputes are a legacy of the so-called crack epidemic of the mid-1980s. Then, Congress set stiff mandatory drug-trafficking prison terms based on the amount of drug in the hands of seller. One gram of crack cocaine was treated as though it were equal to 100 grams of powder cocaine.

Five grams of crack cocaine (less than one-fifth of an ounce) called for a minimum of five years in prison, according to the 1986 law, as did 500 grams of powder cocaine. Fifty or more grams of crack meant at least 10 years in prison, as did 5,000 grams of powder cocaine.

Congress agreed in 2010 to pull back and to adjust the punishments for crack offenses. The Fair Sentencing Act set 28 grams of crack as the trigger for a five-year minimum prison term, and 280 grams for a 10-year term. But it did not say what should happen to people charged but not yet sentenced.

Hill sold 53 grams of crack to a government informant in 2007 and was convicted in 2009. In December 2010, a federal judge in Chicago gave him 10 years in prison. Had the new law applied, he would have been sent to prison for about four years.

Dorsey sold 5.5 grams of crack to an informer at an Illinois motel, and because of an earlier offense, he was given a 10-year prison term in September 2010, one month after the new measure became law.

The 7th Circuit Court of Appeals in Chicago upheld their sentences, but after the Justice Department switched positions last year, the judges split 5-5 on whether to reconsider the matter.

William G. Otis discussed the case post-argument in a FedSoc SCOTUScast you can listen to here. In 2009, FedSoc's Civil Rights Practice Group published a white paper by Christopher Byrnes on "Proposals to Eliminate Sentencing Disparities between Crack and Powder Cocaine Offenses," which you can read here.

The Washington Post reports on a case regarding crack cocaine dealers caught in a mandatory minimum sentencing squeeze:

It was in a rare burst of bipartisanship that Congress in 2010 passed the Fair Sentencing Act, which attempted to close the sentencing gap between those convicted of crack cocaine offenses, who tend to be black, and those with powdered cocaine offenses, who tend to be white.

But Congress left a key bit of the legislation unexplained: whether the reduced sentences for crack should apply to those who committed their crimes before the law took effect but who were not sentenced until afterward.

An hour-long argument at the Supreme Court on Tuesday did not seem to produce a definitive answer.

Lawmakers intended for the new sentencing structure to take effect immediately, said Stephen B. Eberhardt, a lawyer arguing for two Illinois men who did not receive the benefits of the measure even though they were sentenced after President Obama signed it in August 2010.

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

But lower courts have disagreed on the question, citing an 1871 law that says when Congress means for a change to apply retroactively, it must “expressly provide” for that.

In the case of Eberhardt’s clients, Corey A. Hill and Edward Dorsey Sr., the U.S. Court of Appeals for the 7th Circuit said the 1871 measure prevented it from reading the sentencing act as the men would like. The panel of judges in Dorsey’s case called the new law the “Not Quite as Fair as It Could Be Sentencing Act of 2010.”

Chief Justice John G. Roberts Jr. told Eberhardt that the court must operate under the “proposition that Congress, when it enacts legislation, knows the law.”

And complicating the issue for the court is a reversal from the Obama administration. When the law was passed, the administration’s prosecutors told judges that the reduced sentences should apply only to those who committed their offenses after the legislation was enacted.

In 2009, FedSoc's Civil Rights Practice Group published a white paper by Christopher Byrnes on "Proposals to Eliminate Sentencing Disparities between Crack and Powder Cocaine Offenses," which you can read here.