Fair Sentencing Act: Reducing The Disparity In Sentencing Between Crack Cocaine And Powder Cocaine
Dorsey v. United States
The Fair Sentencing Act which reduced the crack-to-powder cocaine sentencing disparity, applies to those offenders whose crimes preceded the effective date of the Act but who were sentenced after that date
Dorsey v. United States, Hill v. United States 132 S. Ct. 2321
Decided: June 21 2012 Supreme Court of the United States
Issue: The Fair Sentencing Act, 18 U.S.C. 3553(a)(4)(A)(ii) became effective on November 1, 2010 and reduced the disparity between offenses involving crack cocaine and powder cocaine from 100-to-1 to 18-to-1. The issue was whether the amendments applied to those defendants whose offenses were committed before the effective date. In other words: Did Congress intend the Fair Sentencing Act to apply to defendants whose offenses predated the Act but whose sentencing hearing postdated it?
Holding: The more lenient penalties of the Fair Sentencing Act applied to those offenders whose crimes preceded the date the Act came into effect but who were sentenced after that date.
Facts: Petitioner Hill unlawfully sold 53 grams of crack in 2007 but was not sentenced until December 2010. At the time the offense was committed, the un-amended 1986 Anti Drug Abuse Act applied. Under this Act, a 10-year minimum was triggered by a conviction for possessing with intent to distribute 50 grams of cocaine (compared to 5000 grams of cocaine powder). The Fair Sentencing Act increased the amount of crack needed to trigger the 5-year minimum from 5 to 28 grams and the amount for the 10-year minimum from 50 to 280 grams while leaving the powder amounts as they were. The District Judge sentenced Hill to 10 years on the basis that the Fair Sentencing Act’s reduced 5-year sentence did not apply to those offenders whose offenses were committed before the Act’s effective date. Similarly, Petitioner Dorsey unlawfully sold 5.5 grams of crack in 2008 and in 2010 was given a 10-year sentence in line with the minimum set out in the 1986 Drug Act on the basis of Dorsey’s prior drug conviction. The sentences were affirmed on Appeal in both cases.
In a 5-4 decision, the Supreme Court held that the 2010 applies to all defendants who are sentenced after the law came into effect, no matter when the offenses were actually committed.
Analysis: Did Congress intend the Fair Sentencing Act to apply to defendants whose offenses predated the Act but whose sentencing hearing postdated it? Unfortunately the Act itself was silent on the issue. The Supreme Court had to look to two other relevant pieces of statute for an answer. The problem the Court faced was that the language in those two statutes appeared to be contradictory. The general ‘federal saving statute’ of 1871 sought to clarify the issue of retroactive application of changes to the criminal law. It provided that a new criminal statute that repeals an older statute shall not change the penalties incurred under the older statute “unless the repealing Act shall so expressly provide”. However, the Sentencing Reform Act of 1984 which introduced the Sentencing Guidelines states that regardless of when an offender’s conduct occurs, the sentencing guidelines to apply are the ones “in effect on the date the defendant is sentenced”.
There were several indications that it was the intention of Congress to apply the new minimum penalties in those cases where the offense predated application of the Act. Firstly, the general principle laid out in the 1871 Act certainly does not prevent Congress from applying a new act’s more lenient penalties to pre-act offenders, given that it is of course the case that one Congress cannot bind another Congress. At best, it ought to be seen as a default provision to be applied in the absence of no indications to the contrary. Second, Congress will have been aware that the Sentencing Reform Act set out a general principle that the guidelines in effect at the time of sentencing (rather than at the time of the offense) were the ones to be applied in any particular case. In connection with this, the language of the FSA strongly suggests that Congress intended to follow the approach of the SRA when it came to retroactivity. Notably, Section 8 of the FSA requires the Sentencing Commission to amend the Sentencing Guidelines to effectively implement the FSA – “to achieve consistency with other guideline provisions and applicable law”. To achieve consistency with other guideline provisions would, in the opinion of the Supreme Court, require the FSA to be applied retroactively in a method similar to the way an amended guideline is applied in those cases where the offense predates the amendment.
The remaining considerations were linked to policy and practicalities. For one thing, applying pre-FSA sentences after the FSA had become effective would create a whole new set of disparities. After all, the FSA was enacted specifically to mitigate a sentencing anomaly in the form of the disparity between crack and powder cocaine sentences. The reasoning was that the last thing Congress would have sought to do was to create an entirely new anomaly.