Private: Accounting for the Discriminatory History of Sentencing Disparities

by Nicole Flatow

During Supreme Court oral argument yesterday on whether the law that reduced the disparity in crack/powder cocaine sentencing should be applied to those already convicted, Justice Sonia Sotomayor honed in on the discriminatory history that led to the passage of the Fair Sentencing Act.  

“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,” she said.

She added: “I've been a judge for nearly 20 years, and 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 2010 law did not eliminate the disparity between those convicted of crack offenses and those convicted of powder cocaine offenses, but it did drastically reduce the ratio from 100-to-1 to 18-to-1. Before the law was passed, the penalties for crack cocaine were “the harshest ever adopted by the U.S. Congress” and 79 percent of defendants in crack cocaine cases in 2010 were African American, the Sentencing Project’s Kara Gotsch explains in a recent American Constitution Society Issue Brief on the Fair Sentencing Act’s passage.

She writes:

The racial disparity associated with crack cocaine sentencing contributed to a negative perception of the U.S. justice system in communities of color. Indeed, U.S. District Judge Reggie Walton testified before Congress that jurors in his courtroom had refused to convict guilty defendants because “they were not prepared to put another young black man in prison knowing the disparity existed between crack and powder in those … cases.”

It was stories of the people incarcerated that animated the discussion of reducing the disparity, she points out. And “it would be cruel if the long history of injustice would now be forgotten” as those implementing the law consider whether to make it retroactive.

During Supreme Court argument in Hill v. United States and Dorsey v. United States, lawyers for both the plaintiffs and for the Department of Justice agreed that the law should be applied retroactively to those who had been convicted before the law’s passage, but not yet sentenced.

The Justice Department had originally taken the opposite position, but Attorney General Eric Holder announced the Department’s support for retroactivity last summer. It was only Miguel Estrada, appointed by the court to defend the position taken by the appeals court below, who argued that the law was not intended to apply the sentences retroactively.

In a guest post for ACSblog, the ACLU's Ezekiel Edwards and Emma Andersson explain the story behind the two cases: 

The passage of the FSA required the United States Sentencing Commission to make emergency amendments to the Federal Sentencing Guidelines within 90 days of the FSA’s enactment, in order to bring the guidelines in line with the newly reduced ratio. Those amendments became effective on November 1, 2010. The cases before the Court differ in that Mr. Hill was sentenced after the FSA went into effect and after the guideline amendments went into effect, while Mr. Dorsey was sentenced after the new law went into effect but before the guideline amendments went into effect. The Seventh Circuit has held that anyone whose conduct predates the FSA must be sentenced according to the 100:1 ratio, even if the sentence is imposed after the date on which Congress and the president officially repudiated the old, and reprehensibly unjust, ratio. On this point, the Seventh Circuit is in conflict with the First and the Third Circuits. 

We hope the Court is persuaded by the position that both the federal defenders and the solicitor general are taking: the Fair Sentencing Act applies to all sentencings that take place after August 3, 2010. To conclude otherwise would significantly undermine the fairness of the Fair Sentencing Act and would perpetuate shameful racial disparities in federal cocaine sentencing.  

Constitutional Interpretation, Criminal Justice, National Security and Civil Liberties, Prison Policy/Incarceration, Sentencing Guidelines, Supreme Court