By David G. Savage, Tribune Washington Bureau –
WASHINGTON — Nearly two years ago, President Barack Obama signed into law a “fair sentencing” act to reduce the long prison terms meted out to people who were caught with small amounts of crack cocaine. But the law did not make clear whether it should apply to cases that were pending when the measure was signed.
Tuesday, the Supreme Court will consider whether the lighter sentences apply to hundreds of cases in the pipeline when the law was signed on Aug. 3, 2010.
The issue is complicated because the Justice Department and Attorney General Eric H. Holder Jr. changed their views on the matter.
Shortly after Obama signed the law, Holder’s department said the changes applied only to new crimes. Last summer, however, after prodding by Senate Democrats, Holder switched his position and said the new rules for crack cocaine prison terms applied to all who were sentenced after Obama signed the bill, even if their crimes took place two or three years before.
For a pair of Chicago-area defendants, the change could mean the difference between serving about three to four years in prison or 10 years behind bars.
“It would be unconscionable” to sentence defendants under the law Congress had repealed as too harsh, said Mary Price, general counsel for Families Against Mandatory Minimums. She said many judges balked at using the stiff mandatory sentences after Congress changed them. “The courts were ahead of the Justice Department on this,” she said.
The sentencing disputes are a legacy of the “crack epidemic” of the mid-1980s. Then, Congress set stiff mandatory prison terms based on the amount of drug in the hands of a seller. One gram of crack cocaine was treated as though it were equal to 100 grams of powder cocaine.
Five grams of crack cocaine (less than one-fifth of an ounce) called for five years in prison, according to the 1986 law, as did 500 grams of powder cocaine. Fifty or more grams of crack meant 10 years in prison, as did 5,000 grams of powder cocaine. This 100-1 ratio was blamed for sending an extraordinary number of African-Americans to federal prisons for long terms.
In a rare bipartisan move, Congress agreed in 2010 to pull back and adjust the punishments for crack offenses. The Fair Sentencing Act set 28 grams of crack as the trigger for a five-year prison term, and 280 grams for a 10-year term. But it did not say what should happen to people charged but not yet sentenced.
The Supreme Court will hear the appeals of two men from Illinois who were sentenced late in 2010 for selling crack two or three years earlier. Corey Hill sold 53 grams of crack to a government informant in 2007, and he was convicted in 2009. In December 2010, a federal judge in Chicago gave him 10 years in prison. Had the new law applied, he would have been sent to prison for about four years.
Edward Dorsey sold 5.5 grams of crack to an informer at a motel in Kankakee, Ill., and because of an earlier offense, he was given a 10-year prison term in September 2010, one month after the new measure became law.
The 7th Circuit Court of Appeals in Chicago upheld their sentences, but after Holder and the Justice Department switched positions last year, the judges split 5-5 on whether to reconsider.