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Supreme Court Stumped over Racial Cocaine Use and Fair Sentencing
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It’s not racist, but racial. In 2010, the Congress passed the Fair Sentencing Act to balance the sentencing over crack cocaine use, usually found in blacks, and powdered cocaine use, usually found in whites. However, in the bipartisan happiness over the issue of cocaine use, the legislature forgot to mention a most important thing. Whether the reduced sentences for using crack cocaine had retrospective effect and would also apply to those who committed the crimes before the law came into effect, but were sentenced after the law was passed. So, the question came before the Supreme Court.

The Supreme Court could not reach a definite answer on the question after a full hour of arguments by lawyers on both sides and the court questioning the lawyers on each point on Tuesday.

The lawyer for the plaintiffs submitted that the intention of the legislature was that the Fair Sentencing Act comes into effect immediately because the legislature mentioned that guidelines should come into effect no later than 90 days.


Lawyers on behalf of the plaintiffs who had committed the crime before the Act was passed but were sentenced later said that the Congress had wished immediate implementation of the Act and there was a ‘fair implication’ of that. In a course of events where it took an average 11 months for a criminal case to result in conviction, and longer in case of trial, the fact that Congress wished the Act to come into effect no later than 90 days meant that the Congress wanted immediate implementation. Therefore, under-trials should have had the benefit of the Fair Sentencing Act.

The lawyer on behalf of the plaintiffs submitted that the Court of Appeals was right in deciding that this was a question for the Supreme Court to decide. “Why would Congress want district courts to continue to impose sentences that were universally viewed as unfair and racially discriminatory?” he asked.

However, lower courts have not agreed on the issue and have held that according to a law passed in 1871, (which is as modern as the lower courts are) if the Congress wishes a law to be retroactive then it must “expressly provide” for that. Since there was no such explicit direction in the language of the statute, a ‘fair implication’ cannot overrule the reality established in 1871. It is true that the Congress passed law to rectify the error of discriminatory sentences, but in absence of statutory direction, the lower courts did not have the right to ‘assume’ leniency, and were happy to continue to discriminate.

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The case of the plaintiffs was also strengthened by the later policy changes by Attorney General Eric H. Holder Jr., who said the new sentencing structure should be applied to those who had not yet been sentenced, regardless of when their offenses occurred.

It was the misfortune of the plaintiffs that they were sentenced before the Obama administration realized the gap in guidance and rectified the policy.

Deputy Solicitor General Michael R. Dreeben told the court that the sentences should rely on the law at the time of sentencing. He said that it was clear the Congress would want such a rule followed in the instant cases, because the racial inequalities in crack v. powder cocaine “had undermined the credibility of the criminal justice system for years.”

Justice Scalia responded: “Yes, that’s very nice, but let’s talk about text, not … about the emotions of Congress.”

The question of the time when the law should have been in effect is still undecided.



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