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The Supreme Court has agreed to resolve a question that has vexed lower federal courts about a law narrowing the gap between sentences for offenses involving kinds of cocaine.
Selling cocaine in crack form used to subject offenders to sentences 100 times as long as those for selling it in powder form. The Fair Sentencing Act of 2010 reduced the disparity to eighteen to one for people sentenced after the law came into effect.
What about people who committed their offenses before the statute came into force but were not sentenced until afterward?
For such defendants, Judge Terence T. Evans wrote in one of the cases the Supreme Court agreed to hear, the law “might benefit from a slight name change: The Not Quite as Fair as it could be Sentencing Act of 2010 (NQFSA) would be a bit more descriptive.”
The usual rule is that new laws do not apply retroactively unless Congress says so; here, Congress said nothing.
Edward Dorsey pleaded guilty in June 2010 to possessing 5.5 grams of crack with the intent to distribute it. Under the law in effect at the time of his offense and his plea, he was subject to a mandatory minimum sentence of ten years. Under the new law, and Mr. Dorsey would probably have received a sentence of three or four years.
Judge Evans, writing for a unanimous panel of the U.S. Court of Appeals for the Seventh Circuit, in Chicago, said Mr. Dorsey “lost on a temporal roll of the cosmic dice” and was “sentenced under a structure which has now been recognized as unfair.” He added that the courts were powerless to change things. A solution, he said, was up to Congress.
The Justice Department initially supported that view but later changed its position. The full Seventh Circuit in August declined to revisit the issue by a 5-to-5 vote.
The case is Dorsey v. United States, No. 11-5683. The Court also agreed to hear a companion case, Hill v. United States, No. 11-5721, and consolidated the two.
The second case involves Corey Hill, who was convicted of selling fifty-three crack. He was sentenced under the old law in December 2010, after the new one was in force.
In the lower courts, the Justice Department urged the imposition of the harsh sentence. In the Supreme Court, it reversed course, urging the justices to rule in Mr. Hill’s favor.
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