Analysis
A racial issue in criminal sentencing that has bedeviled all three branches of the federal government for a quarter century took a little time to emerge in a Supreme Court argument on Tuesday, but when it did, it had a noticeable impact on the Justices. After spending much of the first half-hour focusing on the meaning of two federal statutes, one passed in 1871, the other in 2010, the Court appeared strongly inclined to limit those who could benefit from Congress’s keen desire to narrow the racial disparity in sentencing for cocaine crimes.
But the tone changed as the Justices turned their focus to the prospect of perpetuating that racial disparity for at least a few years longer, and whether that would be fair. That prospect began to look quite unattractive to the Court.
At issue in the argument in the consolidated cases of Dorsey v. U.S. (docket 11-5683) and Hill v. U.S. (11-5721) is whether individuals who committed crimes involving the crack version of cocaine before August 2010 are to get the benefit of the new law that year (the Fair Sentencing Act) sharply reducing the severity of sentencing for crack crimes. The old ratio of 100-to-1 had meant that crack crimes were punished the same as powder crimes even though it took 100 times more powder to lead to that same sentence. It is almost universally acknowledged that crack crimes more often involve blacks, so they regularly were punished more severely. Congress, after repeating being asked by the U.S. Sentencing Commission to deal with this disparity, in 2010 finally cut that ratio back to about 18 to 1.
Justice Antonin Scalia led the charge to deny the reduction to anyone who had who committed crimes before the law was passed, even if they had not yet been sentenced when the law did go into effect. He seemed to have the support of a majority of the Justices for that approach — at least while the argument stayed on the question of what Congress would have had to do (but didn’t) to make the 2010 reduction explicitly retroactive. The 1871 law says that, when Congress relaxes a criminal sentencing law, that usually is of no benefit to those whose crimes predated the law.
Stephen E. Eberhardt, a Tinley Park, Ill., attorney arguing that those still awaiting sentence in August 2010 should get the benefit of the reduced ratio, had serious difficulty trying to head off Scalia’s relentless demands for the legal basis for such an argument. Scalia, joined by other members of the Court, left Eberhardt fumbling for precedents supporting his plea. In fact, not one member of the Court came to Eberhardt’s defense in his first turn at the lectern.
The federal government, joining in the case to support applying the reduction to those still awaiting sentencing in August 2010, sent its leading criminal law expert — Deputy Solicitor General Michael R. Dreeben — to make the argument, and he seemed in time to fare a little better than Eberhardt had. He, too, was making basically a statutory argument — on the whole federal sentencing regime, not just the 2010 statute — and he was rewarded by Justice Samuel A. Alito, Jr., saying that he was making “a good argument, and your best one.” Dreeben’s point was that language in the broader Sentencing Reform Act, dating from 1984, had always made it clear that the sentencing guidelines that would apply were those in effect at the time of sentencing, not at the time the crime was committed.
But, coupled with many of his detailed statutory references, Dreeben began adding in a rhetorical complaint about the crack policy — he would call it “discredited” — that was undermining the credibility of the entire sentencing regime. That was a somewhat vague reference both to the sharp racial impact of the 100-to-1 ratio, and to its practical impact of disproportionate sentencing outcomes. That was mainly a policy argument, but it began drawing the Court closer to a focus on the racial dimension of the old ratio that had been so long criticized.
And that set the stage for the Court’s more liberal Justices to attack the racial impact when the Court-appointed lawyer came to the lectern to argue against any retroactivity. Washington attorney Miguel A. Estrada was confronted with the racial question from the very outset.
He had barely begun when Justice Sonia Sotomayor told him that, when Congress has found that a law was racially discriminatory, “we should do as speedy a remedy as we could, because it is one of the most fundamental tenets of our Constitution…that our laws should be enforced in a race-neutral way.” Why, she then asked, “shouldn’t our presumption be that the fix is immediate rather than delayed? The question, of course, had not only the effect of switching the argument’s emphasis to the racial question, but also the effect of suggesting that the Court might want to avoid those constitutional implications by finding retroactivity implicit in the 2010 law.
Estrada conceded that there had been concern about the racial impact by some in Congress, but he would not concede that Congress regarded this disparity as being the product of intentional discrimination — the kind that would itself violate the Constitution. Sotomayor, though, sought to press her point, noting that, in her 20 years as a judge, she had seen no law that created as much controversy or as much discussion of its racial impact as had the crack vs. powder disparity.
Estrada conceded that point, but argued that Congress had not rushed into changing the disparity, doing nothing for 20 years in the face of repeated requests to confront the question.
Justice Elena Kagan then picked up on the issue, wondering whether it made any sense to change the disparity, but not to do so at once. Estrada had specific arguments, based on the history of the sentencing regime, to answer why Congress did not mean to make the 2010 law retroactive. But the Court’s liberal members kept returning to the racial issue, and whether Congress would have wanted to delay the law seeking to ease that disparity, at least to a considerable extent.
Estrada suggested that, if Congress really had been concerned about the racial impact, it would have ordered new sentencing under the new ratio for all those whose sentences already had become final, but it did not do that. That, he suggested, indicated some doubt about whether Congress had accepted that the old ratio was racially biased on purpose. Justice Scalia intervened with a somewhat opaque comment about whether the old law was “racist,” but the words he chose seemed to imply that he had doubts that the old law was, indeed, racist.
Scalia, though, preferred to move to get an answer to Dreeben’s argument that sentencing law, in general, required sentences to be based on what the law said at the time of sentencing, not at the time of the crime. Estrada belittled the argument, saying that Dreeben’s point was only that judges should consider the sentencing guidelines in effect when they imposed a sentence, not that they had a binding legal duty to do so.
Dreeben’s argument, it turned out, was having some effect on Justice Anthony M. Kennedy, who seemed to embrace the argument that sentencing judges had an obligation — in order to help achieve uniformity in sentencing — to impose the sentence dictated by law at the time of sentencing. And, in a comment that Kennedy then made to Estrada, he appeared to have developed some concern about the racial aspect of relying on the old regime for any new sentencing.
“The hardest thing — as we know in the judicial system — is sentencing,” Kennedy said. “And 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. That’s a very difficult position to put the judge in.”
It seemed apparent that the “fairness” argument was becoming a significant part of the discussion, and that, of course, put emphasis on the racial impact as well as on the other anomalies in sentencing that would result if the new ratio were not implemented for all new sentencing. Estrada tried to counter the fairness argument by arguing that the Sentencing Commission might lose some of its administrative flexibility if it always had to apply a new change in the law, perhaps resulting in new “inequalities” in sentencing. It did not appear, though, that he had completely neutralized the fairness argument.
Sensibly, the attorney for the two men involved in the case, chose to focus his rebuttal on Justice Kennedy’s comment about the burden that Estrada’s position would put on sentencing judges. Eberhardt said that the Court had indicated its concern with whether there was any possible reason to force a judge to continue imposing an out-of-date sentencing disparity “that everyone agrees….are racially discriminatory.” And, wisely, he also picked up on Justice Sotomayor’s comment which he translated to mean that “there has never been a situation such as this basically in the history of criminal law and criminal law sentencing.”
Those may be the only arguments on which his side could prevail.
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