The Supreme Court seemed split Tuesday on whether criminals who were arrested but not yet sentenced for crack cocaine offenses should be able to take advantage of newly reduced sentences.
Corey A. Hill and Edward Dorsey were arrested in 2007 and 2008 for selling crack cocaine and faced mandatory 10-year sentences in Illinois. However, the men were not sentenced until after the Fair Sentencing Act went into effect in August 2010. That law reduces the difference between sentences for crimes committed by crack cocaine and powder cocaine users.
The men argued on appeal that because their sentences came after the law's effective date, they should get its lesser prison time. The 7th U.S. Circuit Court of Appeals in Chicago disagreed, and they appealed to the Supreme Court.
Their lawyer argued to the justices that Congress would not have then expected judges to use outdated laws to sentence people, knowing it was about to change. "Why would Congress want district courts to continue to impose sentences that were universally viewed as unfair and racially discriminatory?" lawyer Stephen Eberhardt said.
Several justices questioned whether Congress made it clear when it wrote the law that the Fair Sentencing Act was intended to be retroactive. But Justice Department lawyer Michael Dreeben said there were no "magic words" for Congress to use in the law to make its intention clear.
"To impose a sentence under outmoded guidelines will foster irrationality in sentencing and would be contrary to the goal of consistency in sentencing," Dreeben said.
The Justice Department originally argued that the men should not get the lesser sentences but changed its mind before the case made it to the Supreme Court.
Several of the justices noted how controversial the crack cocaine sentencing laws were. "I've been a judge for nearly 20 years, and I don't know that there's one law that has created more controversy or more discussion about its racial impact than this one," said Justice Sonia Sotomayor.
But Justice Antonin Scalia said they can't let the controversial aspect of the law weigh on their decision. "Let's talk about text, not ... about the emotions of Congress," he said.
Lawyer Miguel Estrada, invited by the court to defend the appeal court's decision, noted that allowing Hill and Dorsey to use the new sentencing structure and not others may not be fair.
"People who committed the same offense on the same date and may have done so with each other, we would expect to get comparable punishment if they were comparably situated as to criminal history, and the solution that's being urged undermines that," he said.
"But you have to draw a line someplace and that's inevitable that some people are going to fall on one side," Justice Ruth Bader Ginsburg said.
Justices will make a ruling before the end of June.