The Lawletter Vol 37 No 3
The issue of whether to apply a new sentencing law to crimes committed before the enactment of the law has long confounded judges, both because of the recurring failure of legislatures to be clear about their intentions and because of the inherent questions of fairness that arise from the imposition of disparate sentences for the same crime simply by reference to a date on a calendar. The resolution of such issues often boils down to the weighing of both of those factors and a determination of which one is more significant in the case before the court.
Concerns about fairness prevailed over equivocal evidence of the intent of Congress when a divided U.S. Supreme Court recently ruled that the Fair Sentencing Act of 2010, which dramatically reduced the disparity in length of sentences for offenses involving crack cocaine rather than powder cocaine from a ratio of 100 to 1 to a ratio of 18 to 1, may be applied retroactively to crimes committed before the law became effective. In Dorsey v. United States, 132 S. Ct. 2321 (2012), Justice Breyer wrote for a five-member majority that allowing vastly different sentences at "the same time, the same place and even [with] the same judge" would result in "a kind of unfairness that modern sentencing statutes typically seek to combat." Id. at 2333. In a dissenting opinion for the four-member minority, Justice Scalia argued that 1 U.S.C. § 109, a law enacted in 1871 and providing that a new criminal statute that "'repeal[s]'" an older criminal statute shall not change the penalties "'incurred'" under that older statute "'unless the repealing Act shall so expressly provide,'" id. at 2339 (Scalia, J., dissenting) (quoting 1 U.S.C. § 109), precluded retroactive application of the Fair Sentencing Act of 2010 because Congress did not explicitly provide for retroactive application. However, Justice Breyer and the majority determined that there were sufficient indications, including the way that Congress had instructed the Federal Sentencing Guidelines to be amended, that Congress had meant to have the new law apply retroactively.