Should Judges Continue Imposing Sentences Congress Has Rejected as Unfair?

This week the Supreme Court agreed to decide whether the Fair Sentencing Act of 2010, which reduced the irrational penalty gap between smoked and snorted cocaine, applies to defendants who committed their offenses before the law took effect but were not sentenced until afterward. A general rule of statutory construction is that laws do not apply retroactively unless Congress says so. But by passing the Fair Sentencing Act (FSA), Congress almost unanimously declared that crack penalties were unjustifiably harsh. It seems strange, to say the least, that judges would continue to impose these sentences after Congress rejected them.

The Court will address that issue in two cases. One involves Edward Dorsey, who pleaded guilty to possessing 5.5 grams of crack in June 2010, two months before President Obama signed the FSA into law, and was sentenced to 12 years in prison that September, a month after the law took effect. Under the old penalty scheme, the amount of crack and an earlier conviction qualified Dorsey for a 10-year mandatory minimum sentence. Under the new law, The New York Times reports, he "would probably have received a sentence of three or four years." The other case involves Corey Hill, who was convicted in 2009 of possessing 53 grams of crack but was not sentenced until December 2010, four months after the FSA took effect. Under the old penalty scheme, the amount of crack alone (more than 50 grams) qualified him for a 10-year mandatory minimum, which under the new law does not kick in until 280 grams. Had he been sentenced under the new law, Hill would instead have received a five-year mandatory minimum.

Last March a unanimous three-judge panel of the U.S. Court of Appeals for the 7th Circuit rejected Dorsey's bid for a shorter sentence, regretting that he "lost on a temporal roll of the cosmic dice and [was] sentenced under a structure which has now been recognized as unfair." In August the full court split evenly on the question of whether to rehear the case, leaving the panel's decision undisturbed. One dissenter, Judge Ann Claire Williams, called the result "nonsensical," asking: "Why would Congress want sentencing judges to continue to impose sentences that it had already declared to be unfair? There is no good answer to this question." Another dissenter, Judge Richard A. Posner, said applying penalties that Congress rejected leads to "perverse" and "gratuitously silly results." The 7th Circuit also rejected Hill's appeal, saying it was foreclosed by the earlier decision.

The 8th Circuit has taken the same position as the 7th, while the 1st, 3rd, and 11th agree with Williams and Posner that the revised statutory penalties should apply to anyone sentenced after the new law took effect in August 2010. (National Law Journal, by way of the Appellate Daily blog, has more on the circuit split.) The Justice Department, which supported the FSA, initially said "the new penalties would apply prospectively only  to offense conduct occurring on or after the enactment date." But in a July 2011 memo to federal prosecutors, Attorney General Eric Holder reversed that position, noting "the serious impact on the criminal justice system of continuing to impose unfair penalties" and the mixed opinions on this question from the courts, some of which had concluded that "Congress intended the revised statutory penalties to apply to all sentencings conducted after the enactment date." The Obama administration endorsed that view in its brief urging the Supreme Court to hear Hill's case, arguing that "the text and the purpose of the FSA demonstrate Congress's intent that the Act apply immediately at all initial sentencing proceedings."

No matter how this case turns out, thousands of people already are serving sentences that the president, the Justice Department, and Congress all say are excessively long. As I noted last week, Obama has the power to remedy that situation, if only he would use it.

Obama's support for shorter crack sentences was the one bright spot in my review of his drug policies.