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Opinion recap: Easing the “crack” disparity


Without saying whether its ruling will affect thousands, or only hundreds, the Supreme Court on Thursday took one more step away from the long-standing policy of punishing “crack” cocaine criminals far more aggressively than those whose crimes involved cocaine in powdered form.   The 5-4 ruling in Dorsey v. United States (11-5683) and a companion case gave judges the option of giving those convicted in “crack” cases lower sentences than they would have received under rules in effect when they committed their crimes.

Neither the majority nor the dissent dwelled on the fact, but the decision is likely to be of greater benefit to black individuals than whites, because of data that shows that convictions for “crack” crimes are far more likely among black offenders, while those for cocaine powder crimes are dominantly among white offenders.  In fact, that racial difference had been the source of heavy criticism of the sentencing provisions for years, leading Congress to finally deal with it by passing the “Fair Sentencing Act” two years ago.

What the decision means, in real-world terms, is that an individual who committed a “crack” crime prior to August 3, 2010, but was not (or will not be) sentenced until after that date, is eligible for the more lenient sentences that Congress specified for that category of crimes.  Under the new regime, there is only an 18-to-1 disparity between “crack” and powder sentences, compared to the 100-to-1 ratio that had prevailed since 1986.   The decision, though, does not disturb the sentences that actually were imposed prior to the effective date of the new law.

Most sentences for drug crimes are keyed to the amount and kind of an illegal drug involved.   That has been true, too, for those convicted of possessing or dealing in cocaine.  Before 2010, an individual would be subject to a mandatory minimum prison sentence of five years for distributing 5 grams of “crack” or 500 grams of cocaine powder — making the “crack” sentence 100 times more punishing.  That minimum would rise to ten years if the individual had been convicted previously of a drug crime.  Under the 2010 law, the amount of “crack” that triggers the five-year minimum is 28 grams of “crack” or 500 grams of powder, and, for the ten-year minimum, 280 grams of “crack” and 5,000 of powder.  That resulted in a disparity with powder of about 18 to 1.

President Obama signed the new sentencing law on August 3, 2010.  Congress said in the law that it wanted the U.S. Sentencing Commission, which draws up guidelines to carry out federal sentencing, to write new guidelines promptly, and no later than within 90 days.  The Commission did so, and put out new guidelines as of November 1, 2010.

However, Congress did not say in the Fair Sentencing Act whether it wanted the new guidelines, and the lower sentencing regime, to apply only to sentences that were imposed after August 3, 2010, or retroactively to those whose crimes had been committed before that date but were still awaiting sentencing.   The Obama Administration initially took the view that the lower sentences were an option only for judges imposing sentences for crimes committed after the effective date.   In July 2011, however, the Administration changed its mind, and concluded that, for those still awaiting sentences, the new guidelines should apply.

The Administration would later tell the Supreme Court, in the new cases decided Thursday, that the retroactivity issue was important to “thousands of current and future federal defendants” convicted of “crack” crimes.   It urged the Court to take on the issue, especially since federal appeals courts had ruled in conflicting ways on the question.    The Court agreed to resolve the dispute and, because the Justice Department would not defend a ban on retroactive use of the guidelines, the Justices named Washington lawyer Miguel A. Estrada to make that point.

The Administration, and the two Illinois man involved in the companion cases, won on Thursday, as the Court said that anyone still awaiting sentence after the law’s effective date is entitled to try to take advantage of the lower sentencing regime.

The dispute between the majority and the dissent was keyed to differing interpretations, both of the 2010 law and what Congress might have had in mind then, and of an 1871 law — the “Savings Statute.”  Under that old law, the repeal of any law is not to be understood as erasing any penalty or liability that had been “incurred” under the repealed law, unless the law accomplishing repeal said explicitly that it was intended to undo such consequences.   Thus, as applied to a criminal sentencing situation, the 1871 law supposedly means that any penalty imposed previously would not be undone.

Justice Stephen G. Breyer, writing for the Court majority, concluded that, while the 2010 law was silent on its retroactive effect, the way Congress wrote the law and the policies Congress had in mind indicated that the law should apply to defendants still awaiting sentences on the effective date, even for prior crimes.  And. Breyer concluded, the 1871 law was not violated by applying the new law retroactively in that way because the “necessary implication” of the 2010 law was that Congress did intend that limited result.

The Breyer opinion was joined by Justices Ruth Bader Ginsburg, Elena Kagan, Anthony M. Kennedy, and Sonia Sotomayor.

Justice Antonin Scalia, writing for the dissenters, argued that the silence of the 2010 law on its retroactivity meant that Congress had given no indication that it explicitly wanted retroactive application of the lower sentencing regime, so that meant that the 1871 law had not been followed, ending any claim to retroactivity for those whose crimes pre-dated the 2010 law.   The Scalia opinion was joined by Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., and Clarence Thomas.

Plain English summary

A law passed by Congress in 2010 reduced the prison sentences that judges may impose on individuals who are convicted of crimes involving cocaine in the form of “crack.”  That is the most common form when cocaine is distributed in street-level crime.   Congress did not specify whether the more lenient sentences were available only to individuals whose “crack” crimes were done after the law went into effect, or also covered those whose crimes occurred before the law was passed, and yet they had not been sentenced when the law was enacted.   The Supreme Court ruled that the 2010 law should be interpreted to mean that the lower sentences were available to all who were sentenced after the law went into effect, no matter when they had actually committed their crimes.  The Court split 5 to 4 on that issue.

Recommended Citation: Lyle Denniston, Opinion recap: Easing the “crack” disparity, SCOTUSblog (Jun. 21, 2012, 6:37 PM),