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The Fairness Dilemma

For the most part, the law's intended to be fair.  It's not always applied fairly, to be sure, and sentencing laws in particular can be overly harsh, but at least the intent to be fair is almost always present.

But every now and then, it's not:  you'll run into a situation where you've got to decide whether to follow the law, or to be fair.  For the US Supreme Court, that day came yesterday, with the oral arguments in Dorsey v. US and Hill v. US.

At issue was the interplay of two laws, one enacted in 1871 and the other in 2010.  The latter was the Fair Sentencing Act, which was intended to ameliorate the Draconian effects of the crack/powder cocaine disparity that Congress had created back in 1986, when it established a 1:100 ratio for those offenses:  someone peddling five grams of crack would be subject to a minimum of five years in prison, while someone trafficking in powder cocaine could sell up to five hundred grams of the stuff before running into that minimum mandatory five year sentence.  Fifty grams of crack -- less than two ounces -- got you a 10-year minimum, while it took 5,000 grams of powder -- over 10 pounds -- to get to the same place.

The statute was born of the hysteria of the moment over "crack babies" (which proved largely unfounded) and drug violence; notably, no rationale for the ratio was even discussed in the legislative history of the act, and the Sentencing Commission, which was supposed to base its guidelines upon the best empirical research on the, simply adopted that ratio.  The result was a racial disparity that eventually broadened into a chasm -- mostly black crack dealers, sometimes no more than mid-level in the distribution chain, were going off to do 25-year sentences, while mostly white major powder traffickers were being sentenced to prison terms half or less of that.  You would be hard-pressed to find anyone in the late 1990's -- defense lawyers, judges, and even prosecutors -- who felt the result was fair.

After being pressured for years by the Sentencing Commission to do something, Congress finally passed the Fair Sentencing Act, which raised the levels for the mandatory minimums to 28 grams (280 grams for the 10-year minimum), and instructed the Sentencing Commission to use an 18:1 ratio.

So let's say you're awaiting sentencing in a crack case.  You had seven grams of the stuff in your possession -- go on with your bad self! -- but then you find out Congress just passed the new law, and instead of doing five years, you, as a first offender (your bad self wasn't so bad after all), are now looking at a guideline sentence of less than half that.  No, you're not, says your lawyer:  you don't get the benefit of the elimination of the five-year minimum, because you committed the crime before it was eliminated.

I bet if you asked your six-year-old kid about that, if you said, "Johnny, if somone does something bad today where the punishment is supposed to be a ten-minute timeout [for those of you older than fifty, substitute "a ten-minute beating"] but he doesn't get caught until tomorrow, and by then the punishment's been changed to a five-minute timeout, would he get the five-minute timeout?" I'd bet he'd say, "Sure, that sounds fair."  That's because your little Johnny is blithely unaware of Title I, Section 109 of the United States Code, originally enacted when Ulysses Grant was president, which basically provides that the repeal or modification of a criminal statute applies only prospectively, unless Congress otherwise "expressly provides."

Well, little Johnny might not be aware of it, but Antonin Scalia and several justices sure were, and they spent the first twenty minutes of the oral argument using the defendants' lawyers as punching bags, asking them repeatedly where they could find anything in the Fair Sentencing Act which "expressly" provides that it's to be applied retroactively.  The best they could do was argue that there was an "implication" of retroactivity in the FSA, and when queried as to their basis for believing that an implication was sufficient, they could only point to dicta in a footnote in a 1974 case.

And then a funny thing happened when Miguel Estrada, the other lawyer, got up (Estrada actually was appointed by the Court as amicus curia to argue against retroactivity, after the government announced it agreed with the defendant's position):  some of the justices began to clue in to the fact that it wasn't called the Fair Sentencing Act for nothing.  Sotomayor was the first to address the elephant that had been lounging about in the room:

Mr. Estrada, what's so difficult for a legal doctrine to say that when Congress has made a finding that a law has a discriminatory impact -- because I always thought that when discrimination was at issue, that we should do as speedy a remedy as we could, because it is one of the most fundamental tenets of our Constitution, as has been repeatedly emphasized in case after case, that our laws should be -- should be enforced in a race-neutral way.  Once Congress has said this law's not being enforced in a race-neutral way, we want to fix it, why shouldn't our presumption be that the fix is immediate rather than delayed?

Estrada attempted to deflect the question by suggesting that one shouldn't "assume that the passage of the Act reflects Congress's concession of intentional discrimination," but Sotomayor was having none of it, noting that in her 20 years as a judge "I don't know that there's one law that has created more controversy or more discussion about its racial impact than this one."   The racial issue wasn't directly addressed after that, but the fairness issue took front and center, Kennedy summing up the position quite nicely:  noting that one of the hardest things about being a judge is sentencing, he continued,

you're saying that a sentencing judge who knows the law has been changed, who knows the law has been criticized, is nevertheless bound and determined that it's fair for this person to be sentenced to the longer term.

It's hard to predict what's going to happen.  When you've got a real good fairness argument, all you have to do is give a court some legal basis for ruling your way, something to hang its hat on.  I'm not sure that dictum in a footnote is going to provide a sufficient hanger.  The majority could well reject the argument and kick the matter back in Congress' lap, where it belongs, and maybe write an opinion they hope will sufficiently embarass the Congress into doing the right thing.  That hope rests on the assumption that (a) this Congress of capable of embarassment, and (b) its embarassment will be sufficient to induce it to take up legislation, in an election year, which will reduce penalties for crack dealers.

Anybody who hasn't flatlined their last EEG knows that the hope for those assumptions rests on a slender reed indeed.  That subset of the population, we would trust, also includes the nine Supreme Court justices.  The four liberals seem in line, Kennedy obviously has some problems with this, and Roberts, as chief justice, probably isn't thrilled with the idea of his Court affirming a penalty that anyone to the left of David Duke knows results in blatant racial discrimination.  Don't get your hopes up, but just maybe a majority can be cobbled together to do what's fair.

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