By ADAM LIPTAK
Published: April 17, 2012
WASHINGTON — The Supreme Court heard arguments on Tuesday about an aspect of one of the greatest controversies in American criminal law: the differing treatment of crack and powder cocaine.
“I’ve been a judge for nearly 20 years,” said Justice Sonia Sotomayor, the only member of the current court who has served as a trial judge, “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.”
Crack and powder cocaine are two forms of the same drug. But, until recently, a drug dealer selling crack cocaine was subject to the same sentence as one selling 100 times as much powder.
In 2010, Congress enacted the Fair Sentencing Act, which reduced the disparity to 18 to 1, at least for people who committed their crimes after the law became effective that Aug. 3. That means many defendants caught with small amounts of crack are no longer subject to mandatory 5- or 10-year prison sentences.
The question on Tuesday was whether the new, lesser punishments also applied to people who committed crimes before the law became effective but were not sentenced until afterward.
The usual rule, set out in an 1871 law, is that new laws do not apply retroactively unless Congress expressly says so. Here Congress said nothing, or at least nothing in so many words. It did instruct the United States Sentencing Commission to act quickly to revise its discretionary sentencing guidelines to reflect the new ratios. READ MORE
Let's see if the Justices can get something right this time!
These laws that are passed do not exist in a vacuum, there are more tests and rules that apply, than the simple matter of retroactive or not. Like, for example, "equal protection of law". Where, as the courts own discussions show it accepts the unfair racial bias argument, that prompted Congress to act. They must also feel a pressing need to enforce "equal protection of law" for all who have suffered racial injustice under the "travesty" of the old law. Such that, if it is right and mete to correct some racial discrimination suffered under the old law by some. Then is it not necessary to save others from that same racial discrimination?
To be clear, the issue at hand is not: "When was the crime committed", because racial discriminatory suffering has been found. The law is not modified merely because of some whimsical, statistical, statutory or other limit able needs, but because it has been found to be "racially discriminatory", something that other laws [civil rights laws] have demanded be changed. Thus we arrive at a point whereby the court is all but forced to lift the limits on how this remedial action may be applied.
Or... Are we to approve of racial inequity, merely because of when it happened, and not at all because of what it was about? We shall see what these Justices think of the law and their own powers to enforce it.