Drug War

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.

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  1. Unfortunately, it would be an illegal ex post facto application of the law to apply the more lenient sentencing laws to people who committed “crimes” under the old law. Judges don’t have the discretion to throw out constitutional laws, however unjust. That is the job of juries, and of presidents exercising their power to pardon.

    1. What a judge could do, upon conviction, is apply the most lenient sentence possible under the old law. What a prosecutor could do is decide not to prosecute under the old law, and use their discretion to charge defendants with a lesser offense.

      1. Retroactive laws are often OK if they *benefit* defendants, just not if they *harm* defendants.

        1. yes, they are constitutionally ok.

          that’s because a person must have standing to protest the unconstitutionality, among other reasons.

          what person is possibly going to protest “this law is benefiting me, but it’s unconstitutional!!!!”

          most retroactive laws that harm defendants are those with “administrative ” penalties that are viewed not to violate the ex-post facto provisions (but imo definitely do)

          an example is the law that makes people covnicted of domestic violence crimes into people unable to lawfully carry or possess firearms.

          many many many people who pled guilty, even to extremely minor DV crimes, were YEARS LATER made ineligible to carry/possess firearms based on ex-post facto laws

          completely unjust

          1. Don’t forget people who got caught peeing in public ten years before anyone thought of a sex offender registry being forced to register.

  2. The love crack is a little old place where
    we can get together

    love crack, baby love crack!

    1. Tin Badge, busted!

  3. Obama is asking the courts to do what he could easily do himself – reduce these sentence to reflect the interests of justice and the principles of the 2010 Act (which I believe he signed). When he signed the law in 2010, did he think that the requirements of fairness don’t apply to those who offended *before* the act? The whole premise of the act is that lots of *existing* sentences are unfair, and Obama presumably agreed with this when he signed the Act.

    Putting the task of resentencing on the courts would achieve the same basic results as reducing the sentences via executive clemency. The difference is that if Obama can get the courts to do it, he can hide behind the judges’ skirts and avoid accountability, even while achieveing a result he supports.

    But if he uses his clemency power, he’s probably worried about a campaign ad from Mewt Romwich:

    Sinister picture of crack dealer. Voiceover announces: Barack Obama put this drug-dealer back on the streets. Cut to a mother, preferably African-American, who says, “my son died of a crack overdose. How could Obama do this?” Voiceover: Romwich. For the children.

    1. The mother should be holding a grade-school photo of her son, although the overdose death occurred when the son was 27, and the crack had been adulterated, and the son himself was a crack dealer testing his own product.

  4. It’s kind of sad that the brightest spot to be found is in a law which reduces the penalty for something that shouldn’t be a crime at all from ridiculously unjust, horrible and cruel to merely very unjust, horrible and cruel. Three years is a long fucking time to be locked up.

    1. All of this also points to the treason of the judges as they are not empowered to approve of any legislation repugnant to First Principles or to disobey Madison’s command that they be an impenetrable bulwark against EVERY assumption of power by the president and / or by the congress.

      There is no express grant of power given to the judiciary in the constitution to approve of any statute which in any way interferes with the exerices of an individual’s rights.

      1. Well said. And yet there’s a snowball’s chance of justice being served by Justices.

      2. A judge is little more than a lousy lawyer who is buddies with a politician.
        What would you expect? That the guy would invalidate legislation? His buddy who appointed him would not approve.

        1. Given the history of how 99 plus % of the judges have acted 99 plus % of the time, it is hard to argue with you sarcasmic.

          There have been exceptions. But precious few. Even where the result is right, say Griswold v. Conn. (cue to MNG-he loves the case), they screw it up by rejecting Lochner and opting for penumbras.

          1. The founders wanted the different branches of government to keep each other in check and limit government.

            I don’t think they considered that the branches would instead collude for the purpose of creating unlimited government.

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