Another Bold Decision by SCOTUS: “The Fair Sentencing Act’s new, lower mandatory minimums apply to the post-Act sentencing of pre-Act offenders.”
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
There was a time when a 5 to 4 Supreme Court ruling was simply considered a “split decision” indicating legitimate close legal differences of opinion. The December 2000 Gore v. Bush decision changed that public perception. Every Al Gore voter, 560,000 more than those who voted for George Bush, believed the Supreme Court “stole” the election from Gore and gave it to Bush: a 5 to 4 vote motivated not by constitutional but political reasons. That decision left scars on the social and political fabric of this country that will take long to heal. Americans have always been divided by legitimate ideological differences. That was, and remains, the nature of the political process. The Supreme Court, however, historically remained above the ideological divides and political partisanship until Gore v. Bush. With that decision, the court joined the political debate and is now perceived as a “political” institution whose legal opinions reflect the agenda of liberal/conservative politics.
This political divide was evidenced recently in a fairly anonymous decision, Dorsey v. United States—a case decided along the Court’s now widely liberal-conservative divide.
Crack cocaine was a relatively new drug when the Anti-Drug Abuse Act of 1986 was enacted by Congress. The legislation was a byproduct of President Reagan’s “get tough” on crime conservative political agenda. And Congress, who frequently acts without any good reason and who has created a legion of inequitable piece meal legislation, decided to create a two-tiered sentencing scheme under the 1986 Act: a five-year minimum sentence for “serious” drug traffickers and a 10-year minimum sentence for “major” drug traffickers. This spawned the sentencing practice of treating one gram of crack cocaine as the equivalent of 100 grams of powder cocaine. This became known 100 to 1 Crack / powder cocaine disparity.
Why would Congress make a relatively new drug 100 times worse than a highly-addictive established drug? The legislative body embraced an un-researched law enforcement view and public opinion that crack was “more dangerous” and more readily available than powder cocaine. It became the “street user’s” choice of drug because they could not afford the costly powder cocaine like their professional class counterparts. Against this backdrop, Congress then offered five reasons for treating crack more harshly: 1) crack was highly addictive; 2) crack users and dealer were more likely to be violent than users and dealers of other drugs; 3) crack was more harmful to users than powder, particularly for children who had been exposed by their mothers’ drug use during pregnancy; 4) crack use was especially prevalent among teenagers; and 5) crack’s potency and low cost were making it increasingly popular.
The law produced, what many lawmakers knew it would do before its enactment: grossly disproportionate sentences between African-American crack street users and primarily white users of powder cocaine (mostly of the “upward mobile” class). In effect, low-level crack dealers were punished 300 times harsher than high-level powder cocaine traffickers, serving an average of 120 months—more than any other drug offender in the federal prison system. However, spurred by increasing public outrage over the sentencing disparities and their adverse impact on the African-American community, Congress enacted the Fair Sentencing Act of 2010 for the specific purpose of addressing the sentencing inequities produced by the 1986 Act.
Almost immediately the federal trial courts were faced with the legal dilemma of deciding whether the 2010 Act applied to offenders who committed their crack-based crimes before but sentenced after the enactment of the Act. The issue addressed by the Supreme Court in Dorsey was whether Congress intended for the 2010 Act’s more lenient provisions to apply to pre-Act offenders sentenced after it became official on August 3, 2010. Normally, Congress does not intend for a piece of legislation to apply to a pre-legislation case unless the lawmakers expressly say it does, but in Dorsey the Court assumed that Congress intended to apply the 2010 Act to cases previous to August 3, 2010. The Court said that to reach any other interpretation would undermine the basic objective of the U.S. Sentencing Guidelines to achieve uniform and proportional sentencing.
To reach this position, the Supreme Court noted that the Sentencing Guidelines originated from the Sentencing Reform Act of 1984. The statute both created the federal Sentencing Commission and charged it with the responsibility of writing transparent, uniform and proportional guidelines to “guide” federal sentencing decisions. The ensuing Guidelines were approved by Congress. Federal courts routinely assumed the guidelines were mandatory in the sentencing process until the Supreme Court in 2005 said they were intended only to be advisory.
The 1984 drug guidelines, however, did not quite satisfy Congress so it passed the 1986 Act to create what the Supreme Court said was “a more specific, drug-related sentencing statute.” The net result was mandatory minimum sentences in drug cases, which were driven by the quantity of the drug possessed. While the guidelines and federal sentencing statutes interact, the sentencing statute always trumps, e.g., a federal judge cannot sentence a defendant beyond the maximum sentence authorized by statute or below the mandatory minimum authorized by statute. Essentially, the guidelines determine the appropriate sentence between the mandatory minimum and the statutory maximum. They do not extend below or beyond those two statutory points.
In the twenty years following the 1986 Act, strong criticism of Congress’ 100-to-1 sentencing differential in crack/powder cocaine cases extended into every facet of the nation’s criminal justice system, including law enforcement. In fact, the Sentencing Commission itself issued four reports during those two decades telling Congress the differential was “too high and unjustified.” The Commission informed Congress that its own research showed that the harm caused by crack as compared to powder cocaine was far less than the 100-1 differential. Finally, after intense recommendations from the U.S. Justice Department, lawmakers and criminal justice professionals, Congress enacted the 2010 Act which specifically instructed the Commission to “make such conforming amendments to the Federal sentencing guidelines as the Commission determines necessary to achieve consistency with other guideline provisions and applicable law.”
In the Dorsey case, the defendant, who had previously been convicted of a drug felony, sold 5.5 grams of crack in August 2008—two years before the 2010 Act—and, thus, was subject to a 10-year mandatory minimum sentence. However, under the 2010 Act the Dorsey was not subject to any mandatory minimum and, thus, at his September 2010 sentencing, he moved the sentencing judge to sentence him under the more lenient 2010 Act. The problem faced by the sentencing judge was that the Commission had not yet formulated all the guidelines for the 2010 Act, and since the Sentencing Reform Act mandated that the judge sentence a defendant under the guidelines/statutory minimums in place at the time of sentencing, the judge sentenced Dorsey to the 10-year minimum mandated under the 1986 Act.
This sentencing dilemma worked its way into the federal appellate process. Two federal circuits, the First and Third, said the 2010 Act applied in pre-act arrest/post-act sentencing cases while the three other circuits, the Fifth, Seventh, and Eighth, said the 2012 Act did not apply to offenses committed prior to the act. The Supreme Court elected to resolve this circuit conflict with Dorsey’s case. While the majority opinion in Dorsey journeyed through a maze of diverse legal principles, the justices offered six reasons supporting its decision-making, summing up those reasons in the opinion’s closing paragraphs:
“We also recognize that application of the new minimums to pre-Act offenders sentenced after August 3  will create a new set of disparities. But those disparities, reflecting a line-drawing effort, will exist whenever Congress enacts a new law changing sentences (unless Congress intends re-opening sentencing proceedings concluded prior to a new law’s effective date). We have explained how in federal sentencing g 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, 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 sentenced as of cannot make a critical difference…
“We add one final point. Several arguments we have discussed involve the language of statutes that determine how new Guidelines take effect. What about those who committed an offense prior to August 3 and were sentenced after August 3 but before November 1, 2010—a period after the new Act’s effective date but before the new Guidelines first took effect? Do the Fair Sentencing Act’s new mandatory minimums apply to them?
“In our view, the new Act’s lower minimums apply to them as well. Our reason is that the statute simply instructs the Commission to promulgate new Guidelines ‘as soon as practicable’ (but no later than 90 days after the Act took effect). As far as Congress was concerned, the Commission might have (having prepared new Guidelines in advance) promulgated those Guidelines within a few days—perhaps on August 3 itself. At the same time, the Commission possesses ample authority to permit appropriate adjustments to be made in the Guidelines sentences of those sentenced after August 3 but prior to the new Guidelines promulgation. In any event, courts, treating the Guidelines as advisory, possess authority to sentence in accordance with the new minimums.
“For these reasons, if the Fair Sentencing Act’s new minimums apply to all of those sentenced after August 3, 2010 (even if the new Guidelines were not yet ready), it is possible to foresee a reasonably smooth transition. On the other hand, it is difficult to foresee such a transition if the new Act’s application is keyed to a later date, thereby leaving the courts unable to take the new Act fully into account, particularly when that circumstance might create additional disparities and uncertainties that courts and the Commission may be helpless to correct. We have no reason to believe Congress would have wanted to impose an unforeseeable, potentially complex application date.”
Writing the dissenting opinion, Justice Scalia, joined by Justices Thomas, Alito, and Chief Justice Roberts, summed up the conservative justices’ reasons for not wanting the 2010 Act to be applied to pre-Act arrest/post-Act sentencing offenders:
“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. The Court’s decision based on ‘[s]ix considerations, taken together,’ and we are not told whether any one of these considerations might have justified the Court’s result in isolation, or even the relative importance of the various considerations. One of them (the Commission’s emergency authority to issue conforming amendments to the Guidelines) is a particular feature of the statute at issue in these cases, but another (the fact that applying the prior statutory penalties alongside the new Guidelines leads to a mismatch) is a general feature of a sentencing scheme that calibrates Guidelines ranges to the statutory mandatory minimums for a given offense. Are we to conclude that, after the Sentencing Reform Act, §109 has no further application to criminal penalties, at least when statutory amendments lead to modification of the Guidelines? Portions of the Court’s opinion could be understood to suggest that result, but the Court leaves us in suspense.
“That is most unfortunate because the whole point of §109 … is to provide a stable set of background principles that will promote effective communication between Congress and the courts. 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 interpretative principles. Because the Court’s result cannot be reconciled with this approach, I dissent.”
The Dorsey case may represent actual differences of the legal opinion between the five majority justices and the four dissenting justices. But how can eight justices, four “liberals” and four “conservative,” continuously offer divided opinions? This is probably the first time in the Court’s history—at least as far as we could discern—that major legal issues are consistently decided by one justice, the “independent” Justice Kennedy. This raises the question: is there a “liberal” view of legal issues and a “conservative” view of legal issues rather than a constitutional view of legal issues? If the answer to that question is “yes,” as is so often reflected in Supreme Court recent opinions, then there is no such thing as a “legal issue” but rather a “political issue.” And, if that is the case, the Supreme Court should be disbanded because it has become a partisan political institution instead of the independent legal institution the Framers intended it to be.
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization