The New York Times on April 17, 2012 released the following:
“By ADAM LIPTAK
WASHINGTON — The Supreme Court heard arguments on Tuesday about an aspect of one of the greatest controversies in American criminal law: the differing treatment of crack and powder cocaine.
“I’ve been a judge for nearly 20 years,” said Justice Sonia Sotomayor, the only member of the current court who has served as a trial judge, “and I don’t know that there’s one law that has created more controversy or more discussion about its racial impact than this one.”
Crack and powder cocaine are two forms of the same drug. But, until recently, a drug dealer selling crack cocaine was subject to the same sentence as one selling 100 times as much powder.
In 2010, Congress enacted the Fair Sentencing Act, which reduced the disparity to 18 to 1, at least for people who committed their crimes after the law became effective that Aug. 3. That means many defendants caught with small amounts of crack are no longer subject to mandatory 5- or 10-year prison sentences.
The question on Tuesday was whether the new, lesser punishments also applied to people who committed crimes before the law became effective but were not sentenced until afterward.
The usual rule, set out in an 1871 law, is that new laws do not apply retroactively unless Congress expressly says so. Here Congress said nothing, or at least nothing in so many words. It did instruct the United States Sentencing Commission to act quickly to revise its discretionary sentencing guidelines to reflect the new ratios.
Early in the argument, several justices suggested that the 1871 law might pose an insurmountable barrier to defendants who sold cocaine before August 2010.
Congress must have known, Chief Justice John G. Roberts Jr. said, that the 1871 law “required an express statement if they wanted to apply the change retroactively.”
“So why shouldn’t we hold them to that standard?” he asked.
As the argument went on, the justices’ attention seemed to turn to a question posed by a lawyer for the two men whose cases were before them.
“Why would Congress want district courts to continue to impose sentences that were universally viewed as unfair and racially discriminatory?” the lawyer, Stephen E. Eberhardt, asked.
Justice Anthony M. Kennedy seemed sympathetic to trial judges called on to sentence defendants under the old law. Many such judges have expressed anger over the issue.
“One of the hardest things is sentencing,” Justice Kennedy said. “And you’re saying that a sentencing judge who knows the law has been changed, who knows the law has been criticized, is nevertheless bound and determined that it’s fair for this person to be sentenced to the longer term.”
The Justice Department had initially supported a strict reading of the 1871 law. It revised its position last July, and a lawyer for the federal government, Michael R. Dreeben, argued in support of leniency on Tuesday.
Under the stricter rule, he said, “there will probably be thousands of crack defendants who will be sentenced under the old mandatory minimums that Congress repealed because they were perceived as being racially disparate and unfair.” He added: “I think everyone in Congress understood that these guidelines had undermined the credibility of the criminal justice system for years.”
Since both the government and the defendants agreed that the recent law may be applied retroactively to those sentenced after 2010, the Supreme Court appointed Miguel A. Estrada, a prominent Washington lawyer, to argue the other side.
“I think this is a difficult case for public policy,” he told the justices, “but is not a difficult case for legal doctrine.”
He added that if Congress had truly meant to undo a racially discriminatory policy it would not have stopped with defendants not yet sentenced. Many prisoners are serving long sentences under the old law, he said, and yet neither the defendants nor the government have argued for altering those punishments.
Justice Antonin Scalia picked up on the point. “I would find that extraordinary, that they say it’s racist but we are going to leave in effect all of the sentences that have previously been imposed,” he said.
The cases heard Tuesday were Dorsey v. United States, No. 11-5683, and Hill v. United States, No. 11-5721.”
Douglas McNabb – McNabb Associates, P.C.’s
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