April 18, 2011

Judges See Injustice, but the Calendar Disagrees

By ADAM LIPTAK

WASHINGTON

The federal judiciary is in something like open rebellion over a new law addressing the sentences to be meted out to people convicted of selling crack cocaine.

A couple of weeks ago, for instance, a judge in Massachusetts said he found it “unendurable” to have to impose sentences that are “both unjust and racist.”

The new law, the Fair Sentencing Act of 2010, narrowed the vast gap between penalties for crimes involving crack and powder cocaine, a development many judges welcomed.

But it turns out that the law may have been misnamed. “The Not Quite as Fair as it could be Sentencing Act of 2010 (NQFSA) would be a bit more descriptive,” a federal appeals court judge in Chicago wrote last month.

The problem is that the law seems to reduce sentences only for offenses committed after it went into effect in August. The usual rule is that laws do not apply retroactively unless Congress says so, and here Congress said nothing. That seems to mean that hundreds and perhaps thousands of defendants who committed crack-related crimes before August will still face very harsh sentences.

In his recent decision, Judge Michael A. Ponsor of Federal District Court in Springfield, Mass., said that could not be right. It is one thing, he wrote, to have to impose an unjust sentence. But it is asking too much of judges, he went on, to require them to continue to sentence defendants under a racially skewed system “when the injustice has been identified and formally remedied by Congress itself.”

About 30 other federal trial judges have said more or less the same thing. Margaret Colgate Love, a former Justice Department official who oversaw pardon applications, said the decisions were a part of a movement by judges who are sick of imposing sentences they view as too harsh.

“I call it the Arab spring,” Ms. Love said. “It’s a revolt, finally, of an oppressed people.”

But it is hardly clear that the revolt will succeed. The trial court decisions make an excellent case based on fairness. Their legal reasoning — that Congress must have meant for the law to be retroactive even though it did not say so — is less convincing.

The only appeals court to directly address the question so far, in Chicago, said only Congress could apply the new standards to old cases.

“We have sympathy,” Judge Terence T. Evans wrote for a unanimous three-judge panel, “for the two defendants here, who lost on a temporal roll of the cosmic dice and were sentenced under a structure which has now been recognized as unfair.”

Almost no one defends the way offenses involving crack and powder were treated under the old law, which was enacted when crack, in particular, was seen as new, terrifying and seemingly unstoppable. Crack and powder cocaine are two forms of the same drug. But, under the old law, a drug dealer selling crack cocaine was subject to the same sentence as one selling 100 times as much powder.

The new law narrows the gap, for no reason better than compromise, to 18 to one. In practice, that means many defendants caught with small amounts of crack are no longer subject to mandatory 5- or 10-year prison sentences.

In November, the lead sponsors of the new law — Senator Richard J. Durbin, Democrat of Illinois, and Senator Patrick J. Leahy, Democrat of Vermont — wrote to Attorney General Eric H. Holder Jr. They urged Mr. Holder to apply the new law to people who had committed their crimes before it was passed but were sentenced after.

The two senators wrote approvingly of an October decision from Judge D. Brock Hornby of Federal District Court in Maine, who said he would “find it gravely disquieting to apply hereafter a sentencing penalty that Congress has declared to be unfair.” They urged Mr. Holder to exercise restraint and prosecutorial discretion “regardless of the legal merits of this position.”

The Justice Department responded by appealing the 56-month sentence Judge Hornby had imposed, saying the old law required a sentence of at least 10 years.

Douglas A. Berman, an authority on sentencing law at Ohio State University, said he could not see why the old law should be used.

“What broader values,” he asked, “are served by continuing to apply a law that no one will defend on the merits?”

Some trial judges say their job is to apply the law and not broader values. But they do not generally sound happy about it.

At a hearing in November in Philadelphia, for instance, Judge Stewart Dalzell seemed anguished as he sentenced Kenneth Jackson, caught with 100 grams of crack, to the old mandatory minimum sentence of 10 years.

“This is a very harsh situation,” Judge Dalzell said. “Believe me, Mr. Jackson, I don’t like it one bit.”

“I really do hope to be proved wrong on this, but it’s going to take the U.S. Supreme Court to do that,” the judge said.