April 17, 2012
Yesterday, the U.S. Supreme Court heard two cases (Dorsey v. United States and Hill v. United States) that will force it to decide what to do with so-called "pipeline" defendants: federal crack offenders who committed their crimes before the Fair Sentencing Act of 2010 was signed into law, but were sentenced for those crimes after the Act had gone into effect. The decision could have a huge impact for the people in the pipeline - they will either be sentenced under the old 100-to-1 crack disparity law or the new, fairer 18-to-1 ratio. The problem only affects people facing mandatory minimums – guideline defendants get the lower crack sentence, no matter when they committed their crime.
FAMM joined a brief submitted in the case urging the Supreme Court to apply the new, shorter sentences to those in the pipeline. After attending the argument at the Court yesterday, however, we are not sure how the case will turn out. It’s impossible to predict Court decisions with certainty, but our sense was that some of the judges believe that the pipeline defendants should be sentenced under the 100:1 law, which was in effect when they committed their offenses. Others expressed concern about the unfairness of that outcome. We just don’t know how they will vote.
Most of the argument yesterday centered on two competing concerns: the technical language of the law versus the massive injustice created by the old 100:1 disparity. Justice Antonin Scalia and others made it clear from their questioning that they thought Congress should have been more specific in writing the Fair Sentencing Act if it wanted the lower penalties to apply to the pipeline cases. They basically said that when Congress changes a criminal law, it needs to be clear that it wants the new law applied retroactively and that Congress was far from clear when it passed the new crack law.
On the other side, Justice Sonia Sotomayor and others suggested that the 100:1 disparity was so unjust, especially because of its racially discriminatory impact, that Congress must have wanted it to take effect right away. They pointed out that Congress in fact directed the Sentencing Commission, which writes sentencing guidelines, to lower crack sentences as soon as possible and no later than 90 days after the law went into effect. They agreed with the defendants and the government that that directive meant Congress intended everyone to be sentenced the same way after August 3, 2010. Justice Sotomayor and others were also troubled by the idea that judges would have to keep sentencing pipeline defendants to long sentences even though the law has been completely repudiated by Congress. This concern about fairness really seemed to trouble some of the justices, but the big question is whether or not enough justices will be moved by it.
We should mention one other thing about FAMM’s involvement in the case. In our brief, we were able to highlight, in a very specific way, just how unjust it would be let the old law apply to pipeline defendants. We were able to use a story we got from a member of FAMM who responded to our email request for pipeline cases. Win or lose, we know that our argument was stronger because we were able to put a human face on this legal dispute. Thank you so much for always being so willing to share your stories with us so that we can fight more effectively on your behalf.
We do not expect a decision to be issued for a few months, but we will let you know the outcome as soon as we hear.