Last Thursday the Supreme Court handed down its opinion in the crack pipeline case of Dorsey v. United States. The issue presented was whether the Fair Sentencing Act’s (the “FSA”) new, lower mandatory minimums apply to defendants whose crack offenses were committed prior to the passing of the FSA, but sentenced after the law passed. In a victory for criminal justice and sentencing reform, the Court sided 5-4 with the defendants, overturning the Seventh Circuit Court of Appeals and holding that the FSA does in fact apply to such defendants sentenced post-FSA for pre-FSA crimes. Writing the majority opinion for the Court was Justice Breyer, joined by Sotomayor, Kagan, Ginsburg, and Kennedy; while Scalia, Roberts, Alito, and Thomas dissented.
Even though President Nixon launched the War on Drugs in the early 1970s, it wasn’t until the 1980s when the destructive tough-on-crime legislation started making its way through Congress – most notably the Anti-Drug Abuse Act of 1986 (the “ADAA”) which created the draconian mandatory minimum sentences for crack and powder cocaine offenses. The ADAA established five and ten-year mandatory minimum sentences for simple crack possession, as well as the distribution of crack and cocaine – with the sentence based solely on the amount of drugs a defendant possessed. Five grams of crack and 500 hundred grams of cocaine triggered the five year mandatory minimum, while 50 grams of crack and five kilograms of cocaine triggered the ten-year mandatory sentence – a 100:1 sentencing disparity for crack-versus-powder offenses.
Despite the fact that Congress intended the ADAA’s penalties to apply to high-level drug traffickers and the aggravated leaders of drug enterprises, research shows that the threshold required to trigger the crack sentences were far too low to accomplish Congress’ objective. Thus, the vast majority of offenders sentenced under the ADAA’s punitive crack sentences were low-level street dealers. A US Sentencing Commission report details that in 2011 alone, over 74% of all crack defendants faced a mandatory minimum charge, yet only 5.4% of them were considered to be aggravated leaders of a drug enterprise. And by passing a law with mandatory, fixed prison terms, judges are handcuffed and unable to make discretionary determinations as to a defendant’s role or responsibility in a drug business.
Not only were low-level and non-violent offenders grossly subjected to the ADAA’s mandatory minimum sentences, the 100:1 crack-versus-powder disparity disproportionately affected black Americans as well. Despite the fact that blacks make up no more than one-third of all crack users, “79% of federal crack cocaine defendants in 2010 were” black. This leads blacks to serve longer prison sentences for drug offenses when compared to whites that commit similar drug crimes.
Enacted into law on August 3, 2010 to ameliorate these problems, the FSA eliminated the mandatory sentence for the simple possession of crack and increased the trigger amount for the five and ten-year mandatory sentences for crack distribution, from five and 50 grams, to 28 and 280 grams respectively – thereby dropping the disparity down to a far less severe 18:1.
In the aftermath of the FSA’s passing into law and the US Sentencing Commission’s adoption of amendments to the federal sentencing guidelines in conformity therewith, federal court judges were uncertain as to whether the FSA’s more lenient mandatory minimum sentences applied to those defendants who were sentenced post-FSA, for pre-FSA crack offenses. A split amongst the Federal Circuit Court of Appeals necessitated the Supreme Court hearing the case of Dorsey v. US in order to resolve the circuit split. The case involved defendants who committed offenses prior to the FSA, but were sentenced under the mandatory minimum provisions of the ADAA rather than the FSA, even though their sentencing occurred after the FSA’s enactment into law.
In the opinion, the Court says that for the FSA to apply to those crack offenders sentenced post-FSA for pre-FSA crimes, it was necessary to conclude that Congress clearly intended for the lesser penalties to be applied in such situations. In determining that Congress so intended, the Court stated:
"We rest our conclusion primarily upon the fact that a contrary determination would seriously undermine basic Federal Sentencing Guidelines objectives such as uniformity and proportionality in sentencing. Indeed, seen from that perspective, a contrary determination would (in respect to relevant groups of drug offenders) produce sentences less uniform and more disproportionate than if Congress had not enacted the Fair Sentencing Act at all."
The Court envisions a scenario in which two individuals who committed the same crack offense and sentenced at the same time would receive radically different sentences based solely on whether their crimes were committed pre-FSA or not. For instance, a pre-FSA offender charged with five grams of crack and sentenced under the ADAA would be subject to a five-year mandatory minimum sentence, while a post-FSA offense for the same quantity of drugs would be subject to a sentencing guideline range of only 21-27 months and not a mandatory minimum sentence. In addition, a 50-gram pre-FSA offender sentenced under the ADAA would receive a ten-year mandatory minimum, but a post-FSA offender would be subject to a guideline range of less than six years. The prospect of these continued disparities for similarly situated defendants led the court, in the end, to hold “that Congress intended the Fair Sentencing Act’s new, lower mandatory minimums to apply to the post-Act sentencing of pre-Act offenders. That is the Act’s ‘plain import’ or ‘fair implication’.”
The Court’s ruling is undoubtedly a victory for defendants who committed pre-FSA crimes both currently waiting to be sentenced and those already sentenced to the ADAA’s mandatory minimums post-FSA. However, this decision and the FSA are still only modest reforms. Unfortunately, the prospect for greater changes in sentencing laws continues to be an uphill fight. The FSA represents the first time in the past 40 years in which Congress invalidated a mandatory minimum sentencing law, and the first time in the past 16 years that Congress voted for any sort of sentencing reduction whatsoever. And while justice demands that even the reduced crack-versus-powder sentencing disparity must be eliminated altogether, the retention of at least some level of disparity was imperative to the FSA’s passing. Moreover, related legislation in the form of the Fair Sentencing Clarification Act, that “would apply the new quantity triggers for the crack cocaine mandatory minimums for all conduct prior to the August 2010 enactment of the Fair Sentencing Act, regardless of the defendant’s sentencing date,” proposed by Rep. Ron Paul (R-TX) during this past congressional session sadly died in the House.
Despite the rough terrain and the unlikely scenario of drug legalization in the near future, continuing to push for sentencing law reform arguably remains the most effective and practical way to combat the insidious excesses of the War on Drugs – as the massive increase in our prison population over the last 30 years is – aside from drug prohibition itself – largely due to our sentencing policies.
*Full Disclosure: I currently work as a research fellow at the Criminal Justice Policy Foundation, an organization that is a coalition partner with many groups that pushed for the Fair Sentencing Act. Part of my job also includes working on a sentencing reform working group with various organizations, most of whom signed onto an amicus brief on behalf of the defendants in Dorsey v. US.
