Sentencing Disparities

By: Anna Lee Stone

This past Tuesday, the United States Supreme Court heard oral arguments for two cases dealing with the disparity in sentencing guidelines for cocaine cases. Lawyers for the defendants in two consolidated cases, Dorsey v. United States (11-5683) and Hill v. United States (11-5721) argued that offenders whose crimes predated the enactment of the Fair Sentencing Act of 2010 but who were sentenced afterwards should be receive sentences based on the new 1:18 ratio of the Fair Sentencing Act instead of the old 1:100 ratio of the Anti-Drug Abuse Act of 1986. While these cases may appear irrelevant to Americans not involved drug trafficking, the Supreme Court’s ruling could prolong a system of discrimination and injustice.

The sentencing disparity between powder cocaine and crack cocaine dates back to the Anti-Drug Abuse Act. At the time, crack cocaine was becoming widely available, and public officials were certain that the crack variety of the drug was far more harmful than the powder variety. In the Anti-Drug Abuse Act of 1986, Congress decreed that drug trafficking crimes would be punished with mandatory prison terms of five or ten years minimum, depending on the amount of a drug involved in the crime. With regard to cocaine, the Act established a 1-to-100 ratio between crack and powder cocaine. Judges would be required to consider one unit of crack cocaine as equal to 100 units of powder cocaine for sentencing purposes. In other words, someone convicted of trafficking one gram of crack cocaine would receive the same minimum sentence as someone convicted of trafficking 100 grams of powder cocaine.

Fewer than ten years after the Anti-Drug Abuse Act took effect, it became clear that African Americans were most often punished for trafficking crack cocaine, which carried a harsher prison sentence, while Caucasians were most frequently punished for trafficking powder cocaine, which carried a far lighter sentence. According to a 1995 report by the U.S. Sentencing Commission, minorities, and African Americans in particular, constituted “the vast majority of those persons affected by such an exaggerated ratio” between crack and powder cocaine sentencing. This report, asked for by Congress in 1994, was part of a proposal by the Commission to alter the Sentencing Guidelines to a 1-to-1 crack to powder ratio. However, Congress rejected the Commission’s plan, as well as additional proposals for a 1-to-5 ratio and a 1-to-20 ratio.

Finally, in 2010, Congress enacted the Fair Sentencing Act, which implemented a new ratio of about 1-to-18, crack to powder. Under this new law, a crime involving 28 grams of crack, about one ounce, would yield the same minimum five-year sentence as a crime involving 500 grams of powder. In an unusual act of swift government, Congress dispensed with the normal six-month review period required for Guideline amendments and instead gave the Sentencing Commission emergency power to implement the new ratio.

This brings us to the issue of Corey A. Hill and Edward Dorsey, Sr. In March 2007, Hill was caught selling approximately 53.3 grams of crack to an informant in a government-arranged transaction; two years later, he was convicted on one count of distributing crack cocaine. In 2010, a few months before Congress passed the Fair Sentencing Act, Dorsey pleaded guilty to possession and intent to distribute 5.5 grams of crack cocaine. Both Hill and Dorsey were sentenced after the new law took effect, but because they were convicted prior to the new law’s enactment, they were sentenced under the old 1:100 ratio. In their consolidate case before the Supreme Court, lawyers for the two argued that because the men were sentenced after the new law was enacted, they should have been sentenced according to the new 1:18 ratio.

The issue of how to sentence individuals convicted prior to the Fair Sentencing Act is complicated by the “Savings Statute,” enacted in 1871. This statute states that the repeal of any law may only erase penalties or liabilities incurred under the repealed law if the law accomplishing the repeal explicitly states that the repeal also achieves this secondary result. Unfortunately, the 2010 Act fails to specify which ratio judges should use for sentencing occurring after its enactment. Therein lies the question before the Supreme Court.

Many people support the application of the new ratio to those sentenced after the Fair Sentencing Act took effect, including the U.S. Government. Immediately after the law passed, the Obama Administration announced that the new law would apply only to those cases in which the individual committed the crime after the President signed the law—after August 3, 2010. Three months later, two senators from the Committee sent a letter to Attorney General Eric Holder reminding him of his testimony that sentencing changes could not “wait any longer.” The senators argued that the lowered ratio should apply to all individuals sentenced after August 3, 2010, since this was why Congress had allowed the Committee to change the Sentencing Guidelines immediately. The senators further noted that the statute of limitations would not run out on all crimes for another five years, so the Anti-Drug Abuse Act that Congress had deemed “unfair” would prevail for several more years unless the 2010 Act were applied retroactively. In the end, the Obama Administration’s initial position lasted less than a year. In July 2011, Holder sent a letter to federal prosecutors informing them that the federal government had changed its position would now urge courts to apply the new law to all persons sentenced after the 2010 Act took effect.

As a result of the government’s change of position, the Supreme Court appointed Miguel A. Estrada of the Washington office of Gibson, Dunn & Crutcher as an amicus to argue against retroactive application of the Fair Sentencing Act. Estrada is also the only person to have submitted an amicus brief against the application of the new ratio to cases where conviction, but not sentencing, occurred prior to the 2010 Act.

The Court’s decision in the Dorsey-Hill cases will almost certainly be influenced by the long-running dispute regarding how to read federal statutes—whether to focus only on the language of the statute, or to consider the statute’s legislative history as well. In their briefs to the Court, the attorneys for Dorsey and Hill focus largely on the legislative history of the Fair Sentencing Act. Hill’s lawyer, who argued for the two men on Tuesday, argued in his brief that “once Congress complete 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.” Hill’s attorney further argued that Congress’ insistence on the immediate overturning of the old 1:100 ratio demonstrates that it did not intend for the old ratio to be applied to sentences imposed thereafter. Two former federal district judges also submitted a joint brief stating that their experience as sentencing judges led them to oppose requiring judges to “perpetuate an injustice” and continue “racial disparities [that] all three branches of government have found repugnant.” Opposing these briefs and others is Estrada’s brief, which relies mainly on the language of the 1871 and 2010 statutes. Estrada argued that the 1871 statute provided “clear and binding direction to the courts that, when it intends criminal legislation to release previously incurred penalties, it will say so expressly.”

Thus, the Supreme Court is left to make a decision about a case that involves racial issues, retroactive sentencing, and legislative interpretation. After all the briefs and oral arguments, it has the final word.