Justices Tackle Cocaine Sentencing Inequity

     WASHINGTON (CN) – The Supreme Court on Tuesday examined a case that could affect thousands of prisoners eligible for shorter sentences based on revised federal sentencing guidelines for crack cases. Justice Anthony Kennedy suggested that, given the rare instances when sentences are commuted, “something is not working in the system.”




     In Dillon v. U.S., the justices must decide whether a federal court can reduce a crack sentence beyond the amount specified by the U.S. Sentencing Commission.
     Before the commission revised its crack guidelines in 2007, one gram of crack cocaine triggered the same sentence as 100 grams of powder cocaine. Recognizing that the 100:1 ratio presented an “urgent and compelling problem,” Congress passed the Sentencing Reform Act, which retroactively reduced the ratio to 20:1. This dropped the base offense level for crack cocaine by two levels, from 38 to 36.
     As a result, Percy Dillon’s sentence was reduced from nearly 27 years to 22.5 years, but he argued that the district court could have gone lower. He cited the Supreme Court’s decision in U.S. v. Booker, which held that the commission’s guidelines are merely “advisory,” not mandatory.
     “Sentencing commission policy cannot override this court’s clear and unambiguous directive to courts to treat the guidelines as advisory,” Dillon’s attorney, Lisa B. Freeland, argued.
     Leondra Kruger, assistant to the solicitor general, urged the court to uphold the 3rd Circuit’s refusal to further reduce Dillon’s sentence, saying final sentences can’t be changed except in limited circumstances. The extra reduction Dillon seeks would “undermine principles of finality,” the government argued in its brief.
     Justice Ruth Bader Ginsburg raised the equal protection concern that crack offenders would be able to “overcome the finality bar,” while other inmates would not. “[W]hy should … the courts say the finality bar is lifted only to the extent that the crack cocaine guideline disparity has been reduced?” she asked.
     Freeland responded that once a judge agrees to resentence a defendant, “finality is extinguished,” and the defendant must be sentenced anew. “[T]he real point here is that the new judgment is a new judgment; it is a new sentence,” Freeland said. “This is not a reduction in the old sentence.”
     Justice Antonin Scalia offered her an alternative argument: “It is the nature of the sentencing commission’s policy statement that is unconstitutional,” he said. “And your point here is that the policy statement which says you effectively will disregard Booker is unconstitutional?”
     “I agree,” Freeland replied.
     But the government’s lawyer cautioned the court against allowing such across-the-board resentencing after each revision by the sentencing commission. “[T]hat would certainly provide a significant disincentive for the sentencing commission ever to revise sentencing guidelines in a downward direction,” Kruger said.
      Justice Stephen Breyer seemed to agree, expressing concern about reopening the sentence of “every single person who has already been convicted of a drug crime in the federal courts, of which there are probably tens of thousands.”
      Justice Kennedy, however, questioned Kruger about whether the government’s sentencing limitations created a “one-way hatchet” barring model prisoners like Dillon from further reductions. During his time in prison, Dillon helped develop programs for at-risk youth and fellow inmates. Kennedy noted that none of the approximately 185,000 federal prisoners had their sentences commuted last year, and only five were granted commutations in 2008.
     “Does this show that something is not working in the system?” he asked.
     Amicus briefs on Dillon’s side were filed by the Washington Legal Foundation, the Federal Public and Community Defenders, and the National Association of Federal Defenders.
     The U.S. Sentencing Commission filed a brief supporting the government’s position.
     Justice Samuel Alito was recused from the case.

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