Issues
Does the FSA apply to all sentencings occurring after its effective date or only to crimes committed after the statute became effective?
On August 3, 2010, President Obama signed the Fair Sentencing Act (“FSA”), which reduced the disparity between the amounts of crack and powder cocaine required to trigger certain minimum mandatory sentences under the federal Sentencing Guidelines. Petitioners Edward Dorsey and Corey Hill were both arrested for possession of crack cocaine with intent to distribute prior to the FSA’s passage, but were both sentenced after the FSA was enacted. Under the pre-FSA guidelines, they received ten-year prison sentences, but under the new FSA guidelines, both would have received substantially shorter prison sentences. Dorsey, Hill, and the United States government all argue that Congress intended for the FSA to apply immediately, and therefore, all prisoners sentenced after August 3, 2010, including Dorsey and Hill, should have been sentenced according to the FSA. Miguel Estrada, a court-appointed amicus curiae writing in support of the judgments below, argues that nothing indicates that Congress intended for immediate effectiveness and that the federal Saving Statute prevents retroactive application of new statutes that would eliminate previously incurred penalties. The decision in these cases will have implications for the consistent application of the FSA to prisoners falling within this particular sentencing window, as well as potential social costs and burdens on the justice system.
Questions as Framed for the Court by the Parties
In Hill v. United States:
Whether the District Court erred in not sentencing Hill pursuant to the FSA where he was sentenced on December 2, 2010 after the Act’s effective date and the Sentencing Guideline amendments it mandated?
In Dorsey v. United States:
Did the Seventh Circuit err when, in conflict with the First and Eleventh Circuits, it held that the FSA does not apply to all defendants sentenced after its enactment?
Facts
In 1986, Congress established a tiered system of mandatory five- and ten-year prison sentences for drug-trafficking offenses. Congress was concerned about the proliferation of crack cocaine. To dissuade individuals from using crack, Congress set a 100:1 ratio that treated one gram of crack cocaine as equivalent to 100 grams of powder cocaine for the purposes of mandatory minimum sentencing. Trafficking of five grams or more of crack cocaine imposed a minimum mandatory five-year sentence, and trafficking of fifty grams or more of that substance imposed a minimum mandatory ten-year sentence. In comparison, violators would need to traffic 500 grams of powder cocaine for a mandatory five-year sentence, and five kilograms of the substance for the mandatory ten-year sentence. Additionally, a first time conviction for possession of five grams of crack cocaine triggered a minimum five-year sentence, while the maximum penalty for first time possession of any amount of powder cocaine was one year.
In the 1990s, the public began to question the sentencing disparities between powder and crack cocaine offenses. Critics asserted that the disparities tended to disproportionately impact minorities. In response, in 1994, Congress directed the Sentencing Commission, an agency that establishes sentencing guidelines and policies for the Federal Courts, to prepare a report on different penalty levels.
Between 1995 and 2007, the Commission released a series of reports recommending amendments to the Sentencing Guidelines to address sentencing anomalies. In the Federal Courts, sentencing is based primarily on two factors: the offensive conduct at issue, and the defendant’s prior criminal history. The offensive conduct is given a “base offense level”, which can then be increased or decreased depending on prior convictions or other factors. The adjusted offense level is then compared to a sentencing table, which provides a mandatory range of months of imprisonment that the defendant must receive.
On August 3, 2010, the President signed the FSA, which increased the required amount of crack cocaine for a mandatory five-year sentence from five grams to twenty-eight grams, and from fifty to 280 grams of crack for a mandatory ten-year sentence,
Petitioner Dorsey was arrested and charged with possession of 5.5 grams of crack cocaine with intent to distribute on August 6, 2008. He pleaded guilty on June 3, 2010. Because Dorsey already had a prior felony drug conviction, the pre-FSA sentencing guidelines required a mandatory minimum 10-year prison term. However, the sentencing occurred on September 20, 2010, after the FSA’s enactment; under the FSA guidelines, Dorsey would have to have been in possession of 28 grams of crack cocaine to be eligible for the mandatory minimum 10-year term. He appealed, arguing that the FSA applied retroactively to sentences that were pending at the time it became effective. The Seventh Circuit denied Dorsey’s appeals for rehearing and rehearing en banc.
Petitioner Hill was found guilty in 2009 of possessing 50 or more grams of crack cocaine with intent to distribute. Like Dorsey, Hill would have received a reduced sentence under the new FSA guidelines. However, the Seventh Circuit, relying on its prior decision in Dorsey’s case, held that the FSA does not apply when the underlying criminal conduct occurred before enactment, even if the sentencing occurred after enactment.
At the time of sentencing for both Dorsey and Hill, as well as during the time when both were appealing their respective sentences, the United States maintained that the FSA did not apply to individuals who committed criminal conduct before the FSA, but were sentenced after the FSA. However, in July 2011, the United States changed its position. The Attorney General issued a memorandum on July 15, 2011 stating that the FSA does not apply to sentences already imposed, but it does apply to all sentencing proceedings occurring on or after August 3, 2010.
In this appeal before the Supreme Court, the United States wrote an amicus brief in support of the Petitioners. The Supreme Court appointed an amicus curiae, Miguel A. Estrada, to argue in support of the decisions below.
Analysis
At issue in this case is whether the FSA applies to all defendants sentenced after its enactment or only those who committed crimes after Congress passed the Act. Petitioners argue that the FSA’s express language and Congressional intent both demonstrate that the Act should have applied immediately upon enactment to all defendants who had not yet been sentenced. In response, the court-appointed amicus contends that nothing in the FSA’s legislative history indicates that it would become effective immediately. Further, Estrada asserts that the federal Saving Statute prohibits the FSA from applying retroactively.
Plain Meaning and Congressional Intent
Dorsey contends that both the plain meaning of the FSA and Congressional intent indicate that the Act was meant to apply immediately to all defendants sentenced after its enactment. He asserts that Section 8 of the FSA, in which Congress directed the Sentencing Commission to amend its guidelines to conform to the FSA in 90 days or fewer, supports the FSA’s immediate application. Hill argues the fact that Congress ordered the Sentencing Commission to “conform” its amendments to the “applicable law” shows that Congress clearly intended the law to have immediate effect and was directing the Commission to update its sentencing guidelines. Therefore, he contends that all defendants sentenced after August 3, 2010—the FSA’s effective date—should be subject to the Act’s sentencing guidelines. Hill argues the FSA’s sentencing rules applied immediately because Congress’s purpose was to rapidly rectify guidelines that were systematically unfair. In the alternative, he contends that because the Sentencing Commission’s amended guidelines went into effect on November 1, 2010, at a minimum, any individual sentenced after that date falls under the FSA.
Estrada asserts that Congress in no way intended to vitiate the federal Saving Statute, which preserves penalties incurred when an old law was in effect, even if the law has since changed. He argues that Congressional directives to the Sentencing Commission to conform its guidelines to the FSA are not an explicit waiver of Section 109’s anti-retroactivity provision. Estrada contends that applying new sentencing guidelines to defendants who committed crimes before the FSA came into law would be retroactive in violation of Section 109. He asserts that the reduction in mandatory minimum sentences cannot be separated from other FSA sections, including those that increase penalties for major drug traffickers. Estrada argues that Section 109 applies to all of the FSA and because it would be unconstitutional to apply the increased penalty provisions to pre-FSA offenders, and that the reduced penalty provisions cannot be applied to pre-FSA offenders either. Finally, he notes that the legislators did not refer explicitly to retroactivity when debating the FSA; he asserts that, instead, they were primarily concerned with changing unfair sentencing practices, not making the guidelines retroactive.
Impact of the Saving Statute
Dorsey argues that Congress did not need to incorporate an explicit provision in the FSA in order to override the federal Saving Statute. Indeed, in a similar case, the Third Circuit decided that the FSA’s provisions applied immediately to all defendants who had not yet been sentenced. Dorsey emphasizes that Section 109 bars retroactivity only as to criminal penalties that have already been incurred. He argues that a penalty can only be incurred at sentencing. Dorsey contends that Estrada’s interpretation that a penalty is incurred at the time a crime was committed is inconsistent with the judicial system's presumption of innocence. He asserts that the amount of drugs in a defendant's possession is not an element of the crime charged, but a mandatory minimum sentencing factor that is determined only after conviction.
Hill argues that, even if Section 109 does apply to the FSA, it exists merely as a default rule that can be overridden by a demonstration of Congressional intent. He maintains that the statutory text and Congressional intent here are sufficient to show that Congress intended the FSA to apply immediately. Hill contends that Section 109 does not operate to block the FSA's immediate application.
In contrast, Estrada argues that the federal Saving Statute prohibits retroactive application of criminal laws that absolve defendants from criminal penalties unless expressly provided in the statute. He contends that to overcome the Saving Statute, the FSA must “plainly” or “necessarily” repeal the earlier guidelines. For the FSA to apply retroactively, he contends that Congress would have had to implicitly repeal the old statute because the FSA’s language does not expressly deal with retroactivity. Estrada maintains that to find an implicit repeal, the Court must find an “irreconcilable conflict” between the two opposing statutes. He argues that because there is no conflict between the retroactivity provisions of the FSA and Section 109, there is no repeal, and therefore, the Saving Statute applies.
Estrada argues that legislative intent does not show that Congress intended the FSA to be exempt from Section 109. He asserts that while the legislative history discussed the FSA’s coming into effect immediately, that reference does not indicate anything about the statute’s applying to past offenders. Estrada argues that while the FSA directs the Sentencing Commission to bring its guidelines into conformity within 90 days, that language does not necessarily mean Congress desired to apply the FSA retroactively to crimes committed before its effective date.
Discussion
Consistent Application of the FSA
Hill and Dorsey argue that Congress wanted a clear, consistent, and immediate application of the FSA, as evidenced by the directive to amend the Sentencing Guidelines to conform with the FSA as soon as possible. In contrast, the court-appointed amicus curiae asserts that petitioners’ interpretation would lead to “partial retroactivity,” under which two defendants could have engaged in identical criminal conduct, but receive different treatment based on whether their sentencing took place before or after the FSA became effective.
Social Costs
The National Association of Criminal Defense Lawyers and the National Association of Federal Defenders (collectively “NACDL”) argue that if the Seventh Circuit’s interpretation is upheld, the harsher penalties will unnecessarily incarcerate defendants given longer sentences. See . The NACDL argues that Congress intended to alleviate the 100:1 ratio and that continuing to impose harsher penalties would frustrate Congressional intent. See . The Center on the Administration of Criminal Law at New York University School of Law (“CACLNYU”) argues that correcting the erroneous post-FSA sentences for individuals like Dorsey and Hill would not substantially burden the justice system, because it is estimated that there are fewer than 5,000 of these cases. See
Redress of Injustice under the 100:1 Ratio
The American Civil Liberties Union (“ACLU”) argues that Congress recognized the racial injustice in the old 100:1 sentencing ratio and passed the FSA with the intention of rectifying that injustice.Therefore, if the new FSA were passed in order to redress those racial disparities in sentencing, the ACLU argues that the FSA should apply immediately because the old guidelines no longer furthered a legislative purpose.
Conclusion
The Supreme Court will decide whether the FSA applies to all sentences occurring after it was enacted on August 3, 2010 or if it only applies to sentences for criminal conduct that occurred after that date. Petitioners Dorsey and Hill and the United States all argue that the FSA was intended to apply to all sentencings occurring after the FSA’s effective date, regardless of the date of the underlying criminal conduct. In contrast, Estrada argues, in support of the judgment below, that the FSA was not intended to apply immediately, and that retroactive application is prevented by the federal Saving Statute. Ultimately, this decision will affect prisoners like Dorsey and Hill who committed crimes before the FSA became law but were sentenced after its enactment.