WASHINGTON -- A couple of convicted crack cocaine dealers caught between old and new sentencing regimes had their cases argued before the Supreme Court on Tuesday morning. The justices appeared divided over what, if anything, they could do about the prisoners' dilemma.
Corey Hill and Edward Dorsey were convicted in April 2009 and June 2010, respectively, for selling crack to government informants. Before their sentencing hearings, President Barack Obama signed into law the Fair Sentencing Act of 2010, which pegged the mandatory minimum penalties for one gram of crack cocaine to those for 18 grams of powder cocaine -- a reduction from the previous 1-to-100 ratio that Congress concluded had a discriminatory impact on African Americans. Congress, however, did not explicitly say whether the new law should apply to those, like Hill and Dorsey, whose convictions and sentencings straddled the law's passage.
Stephen Eberhardt, the lawyer for the two men, told the justices on Tuesday that common sense and decency compelled the Supreme Court to throw out his clients' harsher sentences calculated under the old regime. "Why would Congress want district courts to continue to impose sentences that were universally viewed as unfair and racially discriminatory," he asked in his introduction.
Common sense and decency must reckon with a federal statute passed in 1871 that says when Congress repeals or revises a law, Congress must "expressly provide" for the new law's retroactive application. Supreme Court case law has since watered down that command, but just how much was the subject of debate during the oral argument.
Eberhardt said that Congress need only make a "fair implication" that the Fair Sentencing Act was designed to reach his clients. Justice Antonin Scalia read the court's precedents more strictly.
"[O]ur cases uniformly say that it has to be clear implication, unquestionable implication," Scalia said.
Eberhardt, to his detriment, resisted Scalia's determination. Chief Justice Roberts and Justice Anthony Kennedy then piled on, leaving Eberhardt, who was arguing his first high court case, deflated. Not even Justice Ruth Bader Ginsburg's effort to defend the "fair implication" standard could save him.
"[I]n none of the cases that used the fair implication language did the Court say, 'And, therefore, the old statute no longer governs,'" Ginsburg concluded.
Deputy Solicitor General Michael Dreeben, who represented the United States in support of Hill and Dorsey, fared better than his less-seasoned colleague. Dreeben said that Congress made a clear and unquestionable implication that the law applied retroactively when it commanded the U.S. Sentencing Commission to create new guidelines consistent with the Fair Sentencing Act "as soon as practicable."
According to Dreeben, "It was entirely possible under the statute, and probably would have been desired by Congress, that new guidelines would have gone into effect" immediately after the new sentencing regime became law.
The Justice Department did not originally take this position, but at the urging of Sens. Dick Durbin (D-Ill.) and Patrick Leahy (D-Vt.), Attorney General Eric Holder last summer issued a memo instructing federal prosecutors "to seek sentences consistent with the Fair Sentencing Act's reduced mandatory minimum for defendants who have not yet been sentenced, regardless of when their conduct took place."
Because of the Justice Department's change of policy, the Supreme Court appointed Washington lawyer Miguel Estrada to defend the appeals court's decision to uphold Dorsey and Hill's stiffer sentences. Estrada, a prominent conservative lawyer, is perhaps best known for being nominated to the U.S. Court of Appeals for the D.C. Circuit by President George W. Bush in 2001, watching his nomination go nowhere for months due to the Senate Democrats' filibuster, and finally withdrawing his nomination in 2003. The Democrats balked because they saw his nomination as a step toward Estrada's eventual placement on the Supreme Court.
One sentence into Estrada's argument, Justice Sonia Sotomayor interrupted to ask "why shouldn't our presumption be that the fix is immediate rather than delayed" when Congress had found the old regime to be racially discriminatory in violation of "fundamental tenets of our Constitution."
When Estrada responded that "it would be wrong to assume that the passage of the act reflects Congress' concession of intentional discrimination," Sotomayor pulled the professional experience card.
"Mr. Estrada, 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," she said.
Justice Elena Kagan put it just as bluntly, noting that if Estrada prevailed, "we're living in a world in which the person who has 4.99 grams of cocaine is getting the 18-to-1 ratio, and a person who has 5 grams is getting the 100-to-1 ratio that's embedded in the mandatory minimums."
"Can you find an earthly reason for why Congress would have wanted to create this weird halfway system?" she asked.
Kagan's question seemed to sway Justices Anthony Kennedy and Stephen Breyer, who both directed tough questions at Estrada's opponents during the first half of the argument.
Widely regarded as a Bush-era political martyr, particularly by Senate Republicans and the conservative legal world, Estrada supported Kagan, his Harvard Law School classmate, despite their ideological differences when President Obama nominated her to the Supreme Court.
Had he actually represented a client on Tuesday morning, he might have regretted his magnanimity.
The cases, Dorsey v. United States and Hill v. United States, will be decided by late June.
Also on Tuesday, the court, in a unanimous decision written by Chief Justice Roberts, held that a private individual temporarily hired by the government to do work on its behalf can seek immunity from lawsuits alleging civil rights violations. The case arose from a California firefighter's lawsuit against a lawyer in private practice who was hired by the Rialto city government to investigate what it believed to be the firefighter's suspiciously long sick leave. The firefighter, Nicholas Delia, sued the lawyer, Steve Filarsky, for violating his Fourth Amendment rights after Filarsky ordered a search of Delia's home for evidence that he was missing work to do construction on his house.
"Though not a public employee, Filarsky was retained by the City to assist in conducting an official investigation into potential wrongdoing," Roberts wrote. That was enough for the court to allow him to claim the protection from civil rights lawsuits that has long been granted to government officials.
Justices Ginsburg and Sotomayor both issued concurring opinions to emphasize the limits of the Filarsky v. Delia holding.
"Qualified immunity may be overcome ... if the defendant knew or should have known that his conduct violated a right 'clearly established' at the time of the episode in suit," Ginsburg wrote, consistent with the court's longstanding precedents.
Sotomayor also agreed with the majority, but wrote that "it does not follow that every private individual who works for the government in some capacity necessarily may claim qualified immunity when sued" for civil rights violations.