Argument preview: The crack cocaine controversy — again

The Supreme Court at 10 a.m. next Tuesday holds a one-hour oral argument on the continuing saga over prison sentences for those convicted of dealing in crack cocaine.  The consolidated cases are Dorsey v. United States (11-5683) and Hill v. United States (11-5721).   Arguing that a 2010 law lowering the punishment for crack crimes should be applied to those whose crimes occurred before that law was passed but who were sentenced afterward will be Stephen E. Eberhardt, a solo practitioner in Tinley Park, Ill.  Making the same argument, for the federal government, which switched positions on the issue last year, will be Deputy U.S. Solicitor General Michael R. Dreeben.  Those two counsel will each have 15 minutes of argument time.  Because of the government’s switch, the Court appointed an amicus, Miguel A. Estrada of the Washington office of Gibson Dunn & Crutcher, to argue against retroactive application of the 2010 law.  He will have 30 minutes.

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Background

A near-revolution has occurred over the past quarter-century in the way federal officials and Congress have thought about crimes involving trafficking in cocaine — sometimes called “the caviar of street drugs.”  The changing view can be traced primarily to the reality that cocaine crimes actually resulted in harsher penalties for blacks than for whites, a racial divide not as clear for any other illegal drug.  The Supreme Court has been part of the process of changing the perception, and is returning to the issue next week.

Blacks more often got punished for buying or selling the “crack” or “rock” variety of cocaine, which can be easily processed into a smoked version; conviction carried a much heavier prison sentence. Whites more often got punished for dealing in the “powder” or “blow” version, which can be snorted; conviction carried a far more lenient sentence.  The sharp difference originated in 1986, when crack was first becoming widely available, and deeply feared: public officials were sure that it was a far more harmful drug than the powder variety.  So, in 1986, Congress specified that crack crimes could lead to prison terms that had to be more severe than for powder crimes.  Now, the difference is far narrower than back then, but there is still a difference; Congress has rejected a suggestion to make the penalties the same.

On Tuesday, in the combined cases of Dorsey v. United States and Hill v. United States, the Supreme Court will confront the issue of who can benefit from the narrowing of that difference.  It is an issue of timing that seems to turn on, more than anything else, the meaning of an 1871 law — or, at least, an interpretation of how that old law fits with the Fair Sentencing Act, passed by Congress two years ago.

First, though, the scene turns back 26 years, back to the Anti-Drug Abuse Act, and the origins of the crack vs. powder disparity.   In a system that is still in effect, Congress decreed that drug trafficking crimes would be punished through a series of mandatory minimum prison terms of five or ten years, keyed to the amount of the drug involved in a given crime.   The amount of a substance that triggers such a minimum sentence varies by the actual drug involved.

For cocaine, that Act required judges to punish an individual convicted of a crack crime on a 100-to-1 ratio — it took only one unit of crack to get the same sentence as would be imposed for 100 units of powder.  In other words, every gram of crack was treated as the same, for punishment purposes, as 100 grams of powder.  Specifically, trafficking in 5 grams of crack or 500 grams of cocaine each led to a minimum five-year prison sentence, and if the amounts went up to 50 grams of crack and 5000 grams (5 kilos) of powder, the minimum was a ten-year sentence.  The 100-to-1 ratio got written into the U.S. Sentencing Guidelines that judges had no choice but to follow.  (The Court would later make the Guidelines advisory only and, as one result of that, judges were allowed to deviate somewhat from the 100-to-1 ratio.)

It took less than a decade of experience under this regime for the racial divide to become apparent.  In a 1995 report, the U.S. Sentencing Commission declared that minorities, and particularly blacks, made up “the vast majority of those persons affected by such an exaggerated ratio.”  The Commission also found that there were other peculiar results of that ratio, resulting in far heavier punishment for someone who dealt in a small amount of crack than a major dealer in powder.  In fact, the Commission prepared that report at the direction of Congress in 1994, which was hearing a rising complaint about how the ratio was working in the real world.

The Commission drew up a plan to change the Guidelines to a 1-to-1 ratio, but Congress vetoed that, insisting that crack penalties had to remain more onerous than powder penalties.   It told the Commission, though, to come up with some ideas for a different ratio, to ease some of the widely varying results that had emerged across the country.  In 1997, the Commission suggested a 5-to-1 ratio, with crack crimes still the more heavily punished.  Congress did not respond to that idea, so in 2002, the Commission came up with a 20-to-1 proposal, along with other suggestions to provide for enhanced penalties for more serious drug criminals.  It also asked Congress to do away entirely with a provision in the law setting a minimum sentence of five years for simple possession of crack.

Still, Congress did not immediately respond, even as the Commission in 2007 used a more urgent tone to call for a change in the ratio.   But its report that year brought in a point that Congress ultimately would find more convincing.   After the Supreme Court in 2005 had made the Sentencing Guidelines advisory, the Commission noted, federal judges were having new difficulty figuring out what to do about the 100-to-1 cocaine ratio.  By then, the Commission said, the criticism of that ratio had become “almost universal.”   Congress, it said, should not leave it to judges to figure out case-by-case, but instead should adopt a uniform ratio itself, lower than the existing one.  It asked that Congress to give the Commission emergency authority to swiftly revise the Guidelines to incorporate such a change.

That report finally got Congress’s attention, and the result was the Fair Sentencing Act, which President Obama signed into law in August 2010.  That Act adopted a ratio that works out to about 18 to 1, crack to powder.  A crime involving 28 grams of crack would draw a five-year minimum sentence, as would a crime with 500 grams of powder.  A crack crime with 280 grams would be sentenced to ten years, as would a powder crime with 5000 grams.  The Justice Department has explained the choice of 28 grams as the bottom amount of crack  for sentencing on the premise that wholesale distribution of crack usually involves one-ounce quantities — that is, close to 28 grams.

Congress also provided for stiffer penalties for more serious criminals, and it did grant the Commission emergency power to implement the new ratio with immediate changes in the Sentencing Guidelines, dispensing with the usual six-month review period that Congress had required previously for other Guideline amendments.  Congress set a 90-day deadline, and new Guidelines with the new ratio were put into effect on November 1, 2010, and those were written permanently into the Guidelines one year later.

Right after the new law was enacted, the Obama Administration took the position that the new ratio would apply only to cases in which the crimes were committed after the day the President signed the law — August 3, 2010.  That position lasted for less than a year.  In July 2011, Attorney General Eric Holder sent a memo to all federal prosecutors, changing position.  The memo noted that eleven federal appeals courts had uniformly concluded that the new penalties should not apply to anyone whose sentence had actually been imposed before that date, but were now in dispute about whether they would apply to those whose crimes had occurred before that date, but were sentenced afterward.   The attorney general said the government now would urge the courts to apply the new ratio to anyone sentenced after the Act had become law, no matter when their crimes had occurred.

Two Illinois men have now gone to the Supreme Court, with the support of the Obama Administration, to try to take advantage of the lowered ratio spelled out in the Act and the Guidelines.

In June 2010, before Congress completed passage of the new law, Edward Dorsey, Sr., had pleaded guilty to possessing 5.5 grams of crack, with intent to distribute it.  He had sold the drug to a government informant in August 2008 at a motel in Kankakee, Ill.   Because he had two prior felony drug convictions, he faced a mandatory minimum sentence of ten years (the old ratio, enhanced by the prior felony convictions).  If the new Act applied to his case, he would have had to sell at least 28 grams of crack (plus the prior conviction) to get a ten-year term.  He was sentenced a month after the new law took effect, and the judge imposed the ten-year sentence.  The Seventh Circuit Court upheld that sentence, refusing to apply the new ratio.  The date of the crime, not of the sentencing, controlled, the Circuit Court said.

In March 2007, Corey A. Hill sold 53.3 grams of crack in a government-arranged transaction to an informant at that individual’s home in Aurora, Ill.   Hill went to trial, and was convicted in April 2009 on one count of distributing 50 or more grams of crack.  His sentencing did not occur until December 2, 2010, after the new ratio law was in effect.  If the new Act applied, his sentence would have been no more than 51 months — 4 years and 3 months.  But the judge, applying the old ratio, imposed the mandatory minimum sentence of ten years.  Again, the Seventh Circuit followed its own precedents and upheld the sentence.

While those cases were working their way through the courts, the prior position of the Obama Administration had come under some pressure.   Democratic leaders on the Senate Judiciary Committee had notified Attorney General Holder that they were disturbed that the Justice Department was not calling for application of the lowered ratio in cases where sentencing had or would occur after the new law had gone into effect.  In a letter to Holder in November 2010, two Committee Democrats, including Chairman Patrick Leahy of Vermont, reminded the Attorney General that he had testified that the change could not “wait any longer.”  They insisted that they expected the lowered ratio to apply to all individuals not yet sentenced for crack crimes, and argued that that was why Congress had agreed to let the Sentencing Commission change the Guidelines immediately.

It would take another five years for the statute of limitations to run in all cases, the senators’ letter noted, so a law that Congress had deemed to be “unfair” would continue to be enforced over that time unless the 2010 Act were made retroactive as the senators said they had expected.

Petitions for Certiorari

Corey Hill’s petition for review reached the Supreme Court on July 1 last year, two weeks before the Obama Administration had changed its view on retroactivity of the Fair Sentencing Act.   Hill’s lawyers raised the single question of whether the Act entitled him to be sentenced under the lowered crack vs. powder ratio and the new Sentencing Guideline implementing it.

The petition argued that the Circuit Courts were now in conflict on the issue, with the Seventh Circuit barring any retroactive application of the new ratio, while the First and Eleventh Circuits had ruled just the opposite, finding that the Act governed all sentencing for crack crimes where the sentence would now be imposed.   Hill’s lawyer interpreted the language of the 2010 law as “plainly indicating” Congress’s intention to immediately end “the discriminatory injustice wrought by the 100-to-1 ratio under the old law.”   But, the petition added, if that were not clear from the language used, that was “the necessary implication” of what Congress had in mind.  It cited the Democratic senators’ letter to help prove the point.

The Obama Administration got an extension of time to respond to the Hill petition, and did so on October 7.  The brief noted the government’s change in position, saying that that had come about because of the conflicting decisions among the lower courts.   In addition, it noted that the conflict among the lower courts had hardened, with the two Circuit Courts that had ruled against any retroactivity — the Seventh and the Eighth — denying en banc reconsideration of their view.

On the merits, the Administration contended that both the text and the purpose of the 2010 law “demonstrate Congress’s intent that the Act apply immediately at all initial sentencing proceedings.” It said the issue “will potentially affect the sentences of thousands of current and future federal defendants.”  The Hill case, it added, squarely presented the issue, so the Court should grant review and overturn the Seventh Circuit.

On August 1. Edward Dorsey’s petition for review reached the Supreme Court.   The Administration responded not long after it had urged review of the Hill case.  It said the Court should hold the Dorsey case until it decided the Hill appeal.

On November 28, the Court instead granted both petitions, and consolidated them for review.  With there being no one in the case at that point to defend the other side, the Court on the next day chose a Washington attorney and veteran Supreme Court advocate, Miguel A. Estrada, to join in the case to argue against applying the 2010 law to cases in which the crimes had occurred before the Act took effect.

Briefs on the Merits

The briefs on the merits emphasize that the controversy before the Justices is basically one of statutory interpretation — sorting out the 2010 law, of course, but also a law enacted in 1871.   The immediate question is which of the two laws should control the retroactivity question.  There is, however, an implied constitutional question.  Because of the disparate racial impact of the old 100-to-1 ratio, there is a lurking issue of discrimination in the case.  That is being invoked by attorneys for the two Illinois men, on the theory that, to avoid confronting the constitutional issue, the Court should not validate new sentences that are based on the old ratio and thus keep a racially tinged system in operation.  The Justice Department makes much of Congress’s wish not to perpetuate the disparity with its racial impact, but does not itself raise the “constitutional avoidance” issue directly.

The 1871 law is called, simply, the “Savings Statute.”  It is somewhat wordy but, paraphrased, it says that the repeal of any law is not to be understood to erase any penalty or liability that had been “incurred” under the repealed law, unless the law that accomplished repeal says explicitly that it has achieved that result.  The old law is deemed to remain in force to implement the penalty or liability that had arisen previously.  The 2010 law does not explicitly say whether the old ratio was to be used in any sentencing proceeding after its enactment.  But the import of what it does say is at the heart of the merits briefs by the lawyers for the two Illinois men and for the Obama Administration.

Although only one lawyer will appear Tuesday for the two Illinoisians, the lawyers for each have filed their own merits brief.  The brief for Corey Hill (whose lawyer will be arguing) put its main emphasis upon congressional intent in 2010: “Once Congress completed its historic overhaul of crack sentencing policy,” the brief said, Congress “wanted those amendments to apply immediately….The clear implication….was that the new mandatory minimums should take effect rapidly so that the Guidelines would have a model against which to ‘conform’ and be consistent.”

That argument, of course, would not necessarily settle the timing issue.  The new Act could be effective immediately, without clarifying whether it should have any retroactive effect on individuals whose crimes had come before the law’s enactment.   Thus, the Hill brief went on to make the further argument that, by insisting on the immediate overturning of the old 100-to-1 ratio, Congress did not intend for it to be perpetuated when any sentence was imposed thereafter.  The old sentencing policy, the brief said, had become “discredited.”

That brief, like others on that side of the case, stressed that earlier versions of Congress’s bills to change crack sentencing actually barred retroactive application to those whose crimes had been committed earlier, but that provision did not survive on final passage.  “Legislative silence on this issue,” the Hill brief contended, “speaks volumes about Congress’s intentions.”

Turning to the 1871 law, the Hill brief contended that the Supreme Court had made clear in more recent decisions that “no ‘magical words’ are required to be spoken by Congress to avoid the application of that default rule.”  But, it added, if there were any doubt about that, there are two norms of statutory interpretation that favor the retroactivity argument: one is the “rule of lenity” that usually attaches to criminal laws, and the other is “the doctrine of constitutional avoidance,” because of the equal protection implications of the old ratio’s racial impact.

The merits brief for Edward Dorsey undertook a closer examination of the 1871 statute, seeking to refute the argument of the Seventh Circuit that it controlled the retroactivity issue.  This brief focused on the specific language of the Savings Statute, saying that it only meant to preserve penalties that had been “incurred” under the prior statute.  Relying upon old Supreme Court precedents, that brief argued that a penalty “is incurred only upon the occurrence of all facts and events essential to its imposition.”  A penalty, therefore, is not “incurred” when a crime is committed, according to the brief, but when a sentence is imposed.

To drive the point home, that brief noted that, under federal illegal drug laws, the calculation of the amount of drugs involved in the crime is a factor that bears upon sentencing, not upon guilt.  The sentencing court examines the quantity issue only at the sentencing hearing, not in judging guilt, the Dorsey brief said.   “Because Mr. Dorsey was sentenced after the Fair Sentencing Act’s enactment, he never ‘incurred’ a mandatory minimum penalty under the prior version…for purposes of the savings statute,” the filing argued.  This, it added, is “a common-sense result,” not precluded by the Savings Statute’s terms.

Further, the brief argued, the 1871 law applies only to a law that has been repealed, and Congress in 2010 did not repeal any law, it simply amended the old 100-to-1 ratio provision.

Supporting the application of the 2010 law to sentences not yet imposed when that law was passed, the Obama Administration’s Solicitor General echoed many of the arguments in the briefs for the two Illinois men.   And, it, too, made a “common sense” argument: “It would make little sense to require the [Sentencing] Commission to incorporate the 18-to-1 ratio into emergency Guidelines if the pre-Act mandatory minimums would remain ‘applicable law’ for the thousands of pre-enactment offenders who would be sentenced under those emergency Guidelines.”

And, expanding on the practical implications, the government brief said that “[t]he resulting scheme would produce gross incongruities in sentences and would perpetuate the very evils Congress sought to eradicate.  Indeed, for a wide variety of common drug quantities, the pre-Act mandatory minimums would override the entire post-Act Guidelines range, rendering the Guidelines that Congress directed the Commission to promulgate ‘as soon as practicable’ essentially irrelevant.”

The government brief also went over the legislative history of the 2010 law, noting the decision to take out of earlier versions of the bill a provision that would have made the changes effective only for crimes that were committed after the new law took effect.  That history also shows, the brief contended, that “Congress had no further tolerance for the severely disproportionate impact of the 100-to-1 ratio on racial minorities.”   The special risks of crack cocaine that Congress had perceived to exist in 1986 had been “universally recognized” by 2010 to be “mistaken,” the U.S. filing contended.

That document also treated the 1871 law as only invoked a “default rule” of non-retroactivity that could be overcome “if Congress indicates a contrary intent in a later statute, whether expressly or by necessary implication.”  The old law still has a role to play in this context, the government asserted, because it “preserves sentences already imposed at the time” of the 2010 law’s enactment.  “Congress,” it said, “gave no indication that it wished to incur the costs associated with full-scale resentencing.”

The retroactivity argument is supported by two former federal District judges who left the bench to teach law — Paul G. Cassell and Nancy Gertner — who argued in their joint brief that their experience as sentencing judges counseled against requiring federal judges for five years after the 2010 law was passed to “perpetuate an injustice” recognized by all three branches of the federal government.   They also argued that the Seventh Circuit approach would continue “racial disparities [that] all three branches of government have found repugnant.”

Also supporting the retroactivity argument are criminal defense lawyers, civil liberties groups, and sentencing reform advocates.

The only amicus against applying the new ratio to cases where the crime had occurred before the 2010 law took effect is the Court-appointed attorney Estrada.   Of course, his brief relied not only on the language of the 1871 statute, but also upon the failure of Congress to say explicitly in 2010 that it meant the new law to apply to individuals whose crimes predated the Act.   The old statute, it argued, provided “clear and binding direction to the courts that, when it intends criminal legislation to release previously incurred penalties, it will say so expressly.”

Congress could have repealed the 1871 law, and it could have superseded it, the amicus brief conceded.  But the standard for finding that it had sought to displace that law, it added, “is intentionally high.”  Citing a string of precedents, the brief said that displacing the old law must have been done by “‘necessary’ or ‘plain’ implication” in the later law.

“To conclude that [the old law] has been implicitly superseded, the Court must find that the [2010 law] amounts to a partial implied repeal of the statute — an inquiry subject to the ‘stringent standard’ that ‘there be an “irreconcilable conflict” between the two federal statutes at issue,'” the brief said, adding: “Cherry-picked legislative remarks and gauzy references that do not amount to a new law on the specific point at issue — retroactivity — do not carry the day.”

Perhaps the most compelling part of this amicus brief is an opening essay on the common law — the history of the notion that, when a criminal law is repealed, the offenses committed previously are exempt from prosecution after repeal, and the history of Congress’s enactment of the 1871 law as a way to overcome that notion.  The purpose of the 1871 statute, the document said, was to “abolish the common-law presumption and reverse the rule that the repeal of a criminal statute resulted in the abatement of all prosecutions which had not reached final disposition.”   Congress, it argued, was well aware of this history when it passed the Fair Sentencing Act in 2010.

At the practical level, the amicus disputed the argument that the 2010 law would require many sentences from here on to be imposed under the old ratio.  Many whose crimes were committed before the law took effect, the brief said, would have been sentenced within months after being charged.   The brief also argued that it would be strange for Congress to have set up a regime in which people who committed crimes before the law took effect, and thus are in identical situations, should be sentenced differently merely because of the fortuity of the timing of their sentencing.

Analysis

The Dorsey-Hill cases almost certainly will revive within the Court the long-running dispute over how to read federal statutes — to stay focused only on their language, or to look at legislative history, too.   If the Court were to use the former approach, it would seem that the Court-appointed amicus has the better of the argument.   The 1871 law is quite specific in requiring Congress, if it wants a new criminal law to have retroactive effect, to say so explicitly; Congress did not do that in 2010.  But if the Court were to take the latter approach, there is much that went on during the process of passing the 2010 law that suggests that Congress did want retroactivity to the extent being advanced by the government and counsel for the two Illinois men — not least, the removal of the anti-retroactivity provision from the bill.

There is no doubt that Congress definitely wanted to make a break from the experience that had prevailed almost since the very beginning of the 100-to-1 ratio in 1986, but there is enough uncertainty about its specific intentions regarding post-Act sentencing for pre-Act crimes as to leave some doubt in the Justices’ minds.   Whether the Court would find ambiguity in the exact text of the 2010 law could be crucial.  The amicus has gone to considerable lengths to suggest that, as between the 1871 law and the 2010 law, clarity definitely emerges most in the old law.  Moreover, the mere fact that the Circuit Courts have divided as deeply as they have tends to suggest that there is no obvious way to make both the 1871 law and the 2010 statute equally operable on the retroactivity issue.

The Court, of course, is well aware, from its own experience with the crack vs. powder controversy, of the racial overtones that have lingered almost from the original enactment of the 100-to-1 ratio in 1986.   A decision to keep that ratio in effect, with the continuing prospect that the racial factor will remain a feature of the actual sentences that do get imposed, may be an unattractive alternative for the Court.  But if it should side with the Court-appointed amicus’s argument that numerically there won’t be a great many sentences for pre-2010 crimes, this potential may not be so significant.

Federal sentencing, as a general matter before the Court, has been a troubling and sometimes divisive issue for the Justices.   What ultimately will make the difference in outcomes in this field is not easy to see in advance.  The dispute over the crack vs. powder disparity has now returned to the Court with two very different perspectives laid before the Justices in the briefs.   The quality of the oral argument thus might turn out to be critical in framing the response.