June 21, 2012

Supreme Court Decides Dorsey v. United States

On June 21, 2012, the U.S. Supreme Court decided Dorsey v. United States, No. 11-5683, resolving a circuit split and holding that the more lenient 18-to-1 crack-to-powder cocaine sentencing ratio in the Fair Sentencing Act (the Act) applies to offenders whose offense occurred before the Act was enacted but who were sentenced after its enactment.

Two crack cocaine offenders, Corey Hill and Edward Dorsey, appealed from separate Seventh Circuit decisions affirming the district courts' application of the Sentencing Guidelines in effect when their offenses took place rather than the more lenient penalties in the Fair Sentencing Act, which was enacted prior to their sentencings. The 1986 Anti-Drug Abuse Act created mandatory minimum sentences for crack cocaine offenses, which produced a 100-to-1 sentencing ratio between crack-cocaine offenders and powder-cocaine offenders. The federal Sentencing Commission then adjusted the (now-advisory) Sentencing Guidelines and corresponding Drug Quantity Table "so that small drug amounts that did not trigger the 1986 Drug Act's mandatory minimums … would remain proportionate to the sentences for amounts that did trigger these minimums." To address the disparity, Congress enacted the Fair Sentencing Act, which was effective on August 3, 2010. The Commission created conforming emergency amendments to the Sentencing Guidelines that became effective November 1, 2010, and a permanent version took effect on November 1, 2011.

The question of timing arose because the federal saving statute provides that a new criminal statute that repeals an older criminal statute does not change the penalties incurred unless the repealing Act expressly provides for such a change, and the penalties are "incurred" when an offender commits the crime. "On the other hand, the Sentencing Reform Act says that, regardless of when the offender's conduct occurs, the applicable [Sentencing] Guidelines are the ones ‘in effect on the date the defendant is sentenced.'" 

In determining whether to apply the more lenient penalties, the Supreme Court found "[s]ix considerations, taken together" that persuaded the Court of Congress's intent that the Fair Sentencing Act applies "to offenders whose crimes preceded August 3, 2010, but who are sentenced after that date." First, the savings statute allows Congress "to apply a new Act's more lenient penalties to pre-Act offenders without expressly saying so in the new Act." This "background principle" of interpretation means no "magical password" is needed for Congress to indicate its intent that the later enactment is meant to apply. Second, the Sentencing Reform Act creates a "special and different background principle" suggesting that the Sentencing Guidelines in effect on the date of sentencing should be applied. Third, the Court found language in the Fair Sentencing Act that "implied that Congress intended to follow the Sentencing Reform Act background principle here." Fourth, to apply the prior mandatory minimums would create the types of disparities "that Congress enacted the Sentencing Reform Act and the Fair Sentencing Act to prevent." Fifth, the failure to apply the Fair Sentencing Act would "make matters worse"; rather than simply
"preserv[ing] a disproportionate status quo," a failure to apply the new Act would in some instances create a disparate sentencing "cliff" for offenders subject to the new Sentencing Guidelines but the prior statutory mandatory minimums. Sixth, the Court "found no strong countervailing consideration."

Justice Breyer delivered the opinion of the Court, in which Justices Kennedy, Ginsburg, Sotomayor, and Kagan joined. Justice Scalia filed a dissenting opinion in which Chief Justice Roberts and Justices Thomas and Alito joined.

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