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Will SCOTUS Correct Sentencing Disparities in Dorsey?

By Robyn Hagan Cain on April 11, 2012 | Last updated on March 21, 2019

When the Nine head back to the Bench next week, they’ll move on from the epic six-hour healthcare arguments and consider sentencing disparities in Dorsey v. United States and Hill v. United States.

The Supreme Court granted cert in the cases to determine whether the Fair Sentencing Act of 2010 can be applied to sentencing for an offense that occurred before the Act’s effective date. The Seventh Circuit Court of Appeals has held that the Act does not apply to defendants who committed crimes before the Act’s enactment, but were sentenced after it became effective. The First and Eleventh Circuits disagree.

The Fair Sentencing Act, which became effective August 3, 2010, raised the amount of crack cocaine necessary to trigger the 10-year mandatory minimum term from 50 to 280 grams, and the amount needed to trigger a 5-year mandatory minimum from 5 to 28 grams. The Act also reduced the sentencing disparities between crack cocaine and powder cocaine distribution. Selling crack cocaine used to subject offenders to the same sentence one would get for selling 100 times as much cocaine powder; under the Fair Sentencing Act, the disparity is 18 to 1, reports The New York Times.

Typically, when Congress wants to right a wrong, it includes a provision in a bill to apply legislation retroactively. That didn't happen with the Fair Sentencing Act.

The oversight wasn't lost on Seventh Circuit Chief Judge Frank Easterbrook, The New York Times reports. Judge Easterbrook noted in his rehearing denial explanation, "Thoughtful people might wonder what sense it makes for Congress, having decided that a 100-to-1 ratio is excessive, to leave the minimum and maximum sentences alone for persons whose crimes predate Aug. 3, 2010. It is a good question, to which there is no satisfactory answer other than the observation that legislation is an exercise in compromise."

How do you think the Supreme Court will approach this case? Will the Court infer Congressional intent to eliminate sentencing disparities and apply the law retroactively, or will it interpret the letter of the law strictly? More importantly, if the Supreme Court affirms the Seventh Circuit, will Congress amend the law to apply retroactively?

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