Last month, in Dorsey v. United States (No. 11-5683), the Supreme Court resolved an important circuit split on the interpretation of the Fair Sentencing Act of 2010. The FSA softened the controversial mandatory minimum sentences for crack cocaine offenses that have been in place since 1986. There’s no question that crack offenders who committed their crimes after the statute’s effective date, August 3, 2010, benefit from the new regime. However, the lower courts have divided over the handling of crimes committed before the effective date, but sentenced after it. Although this may sound like a minor dispute, given the volume of crack offenses prosecuted in federal court and the eleven-month median time between indictment and sentencing in these cases, there may be hundreds or thousands of defendants who are affected by its resolution.
Such timing questions are often resolved by reference to the federal “saving statute” of 1871 (1 U.S.C. §109), which indicates that the law in place at the time of an offense should normally govern the penalty. However, this is only a default principle; earlier Supreme Court decisions indicate that Congress can make reduced penalties applicable to all defendants if Congress demonstrates such an intent either expressly or by necessary implication. Since the FSA did not expressly address the question one way or another, Dorsey turned on the finding of implied congressional intent. By a narrow 5-4 margin, the Court decided that Congress had indeed intended to make the FSA applicable to all defendants sentenced after the statute took effect.
As indicated by the circuit split and the Court’s own 5-4 decision (and also, for that matter, by the unusual 5-5 split of the en banc Seventh Circuit on this question), the record of congressional intent was equivocal, and reasonable minds might differ on its interpretation.
The Court’s majority cited an array of considerations specific to the FSA in support of its holding, suggesting that the case may have no broader significance beyond its (important) consequences for a (sizable) group of crack defendants who have been sentenced in the past two years.
But there is one uncertain strand of the Court’s reasoning that may point to a more fundamental change in the retroactivity analysis for sentencing statutes. In essence, the Court suggested that the saving statute’s default principle may be trumped by the default principle of the later Sentencing Reform Act:
[T]he Sentencing Reform Act sets forth a special and different background principle. That statute says that when “determining the particular sentence to be imposed” in an initial sentencing, the sentencing court “shall consider,” among other things, the “sentencing range” established by the Guidelines that are “in effect on the date the defendant is sentenced.” 18 U. S. C. §3553(a)(4)(A)(ii) (emphasis added). Although the Constitution’s Ex Post Facto Clause, Art. I, §9, cl. 3, prohibits applying a new Act’s higher penalties to pre-Act conduct, it does not prohibit applying lower penalties. . . . The Sentencing Commission has consequently instructed sentencing judges to “use the Guidelines Manual in effect on the date that the defendant is sentenced,” regardless of when the defendant committed the offense, unless doing so “would violate the ex post facto clause.” USSG §1B1.11. And therefore when the Commission adopts new, lower Guidelines amendments, those amendments become effective to offenders who committed an offense prior to the adoption of the new amendments but are sentenced thereafter. Just as we assume Congress was aware of the 1871 Act’s background norm, so we assume that Congress was aware of this different background sentencing principle. (13)
Read for all it’s worth, this language may suggest that the 1871 saving statute no longer provides the default principle when Congress lowers sentences. (Not that that happens often!) In his dissent, Justice Scalia properly noted the uncertainty on this point created by the majority’s opinion:
Are we to conclude that, after the Sentencing Reform Act, §109 has no further application to criminal penalties, at least when statutory amendments lead to modification of the Guidelines? Portions of the Court’s opinion could be understood to suggest that result, but the Court leaves us in suspense.