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At 10 a.m. today the Supreme Court heard oral arguments on how to sentence those convicted for dealing in crack cocaine. Two representative case are up for review: Dorsey v. United States and Hill v. United States.
The Deputy Solicitor General and an attorney representing one of the those convicted argued that a 2010 law lowering the punishment for crack crimes should be applied to crimes committed prior to when the law was passed. Miguel Estrada will argue against retroactive application of the 2010 law.
Race and criminal law intersect with regard to sentencing discrepancies for crack and powder cocaine. Black people are disproportionately punished for buying or selling the “crack” or “rock” variety of cocaine, which can be easily processed into a smoked version. These convictions come with a much heavier prison sentence. White criminals, on the other hand, are more often punished for dealing in the “powder” cocaine, and these convictions come with a far more lenient sentence.
The discrepancies began in 1986 when crack started to sweep the country. Congress passed a law resulting in crack crime sentences that are 100 times more severe than for powder crimes. This difference has been narrowed enormously since then but a difference still remains and Congress has continued to reject the idea of making the penalties identical.
In June 2010, before Congress completed passage of the new law, Edward Dorsey, Sr., pleaded guilty to possessing 5.5 grams of crack, with intent to distribute it. This wasn’t Dorsey’s first conviction and as such he faced a mandatory minimum sentence of 10 years. If the new Act applied to his case, he would have had to sell at least 28 grams of crack (plus the prior conviction) to get the same 10-year sentence. Dorsey was sentenced a month after the new law took effect, and the judge imposed the ten-year sentence. The Seventh Circuit Court upheld that sentence, refusing to apply the new ratio. They held that it was the date of the crime, not of the sentencing, that controlled.
Years earlier in 2007, Corey A. Hill sold 53.3 grams of crack in a sting operation outside Aurora, Ill. Due to delays at trial his sentencing did not occur until December 2, 2010, after the new ratio law was in effect. If the new Act applied, his sentence would have been no more than 51 months. The judge for his case applied the old ration and imposed the mandatory minimum sentence of 10 years. As in Dorsey, the Seventh Circuit upheld the lower court’s sentence.
The issue before the Court boils down to timing and will revolve around the meaning of an 1871 law. The 1871 law in question is called the “Savings Statute.” It is a lengthy law but, paraphrased, it says that the repeal of any law is not to be understood to erase any penalty or liability that had been “incurred” under the repealed law, unless the law that accomplished repeal says explicitly that it has achieved that result. The old law is deemed to remain in force to implement the penalty or liability that had arisen previously. The law passed by Congress in 2010 lowering the disparity in punishment does not explicitly say whether the old ratio was to be used in any sentencing proceeding after its enactment.
Lawyers for the defendants will be arguing that congressional intent clearly points to immediate application: “Once Congress completed its historic overhaul of crack sentencing policy,” Congress “wanted those amendments to apply immediately….The clear implication….was that the new mandatory minimums should take effect rapidly so that the Guidelines would have a model against which to ‘conform’ and be consistent.” The defense adds that by overturning the previous sentencing guidelines, Congress did not intend for them to be perpetuated when any sentence was imposed thereafter. The old sentencing policy, the brief said, had become “discredited.”
There’s no clear answer as to how the justices will rule after today's arguments.
Read: “Argument preview: The crack cocaine controversy — again,” by Lyle Denniston, published at SCOTUSBlog.com.