Crack Sentencing Gets a Break in Supreme Court

     (CN) - The high court's liberal justices were in the majority Thursday when they found that courts should retroactively apply new, more lenient, guidelines when reaching sentences for crimes involving crack that occurred before passage of the law.
     Under the new crack-to-powder cocaine ratio, which the Sentencing Commission adopted in effect Nov. 1, 2011, the federal mandatory minimums and maximums for crack-related offenses are 18:1, reduced from 100:1. The act also includes significant reductions in the guidelines range.
     President Barack Obama signed the Fair Sentencing Act into law in August 2010, but an Illinois federal judge refused to apply it a month later when sentencing Edward Dorsey Sr. to the old standard, a 10-year mandatory minimum, for distributing 5.5 grams of crack cocaine.
     Since the new guidelines do not trigger mandatory minimums unless 28 grams are at stake, Dorsey could have received a two-year sentence.
     But the 7th Circuit affirmed 10 years for Dorsey in March 2011 and refused to grant a rehearing.
     Corey Hill had pleaded guilty in 2009 to possessing at least 50 grams of cocaine with intent to distribute. Here, too, the trial court elected to use the old guidelines, sentencing Hill to 10 years in December. The new guidelines would have shaved four years off that sentence.
     When the attorney general pushed for courts to apply the new guidelines, the 1st, 3rd and 11th Circuits each adopted these recommendations. The 7th Circuit nevertheless refused to waver.
     The Supreme Court consolidated Dorsey and Hill's cases for review this past fall.
     A five-justice majority found Thursday that "the new, more lenient mandatory minimum provisions do apply to those pre-act offenders."
     Drawing the sentencing cut-off at Aug. 3, 2010, the date the law took effect, will still create disparities, according to the court.
     "But those disparities, reflecting a line-drawing effort, will exist whenever Congress enacts a new law changing sentences (unless Congress intends re­opening sentencing proceedings concluded prior to a new law's effective date)," Justice Stephen Breyer wrote for the majority. "We have explained how in federal sentencing the ordinary practice is to apply new penalties to defendants not yet sentenced, while withholding that change from defendants already sentenced. And we have explained how, here, continued application of the old 1986 Drug Act minimums to those pre-act offend­ers sentenced after August 3 would make matters worse. We consequently conclude that this particular new disparity (between those pre-act offenders already sentenced and those not yet sentenced as of August 3) cannot make a critical difference."
     The court's staunchly conservative bloc took the contrary position.
     "Retaining the old mandatory minimums ensures at least rough equivalence in sentences for defendants who committed their crimes at the same time, but were sentenced at different times - even as it leads to disparities for defendants who are sen­tenced at the same time, but committed their offenses at different times," according to the dissent authored by Justice Antonin Scalia, and joined by Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito. "In light of this plausible basis for con­tinuing to apply the prior law to pre-enactment offenders, there is no reason to conclude that Congress necessarily expected the new statutory penalties to apply."
     "In the end, the mischief of the court's opinion is not the result in this particular case, but rather the unpredictabil­ity it injects into the law for the future," Scalia added.
     The whole point of Section 109, a federal saving statute, "is to provide a stable set of background princi­ples that will promote effective communication between Congress and the courts," the dissent states.
     "In this context, stability is en­sured by a healthy respect for our presumption against implied repeals, which demands a clear showing before we conclude that Congress has deviated from one of these background interpretive principles," Scalia concluded.