The Supreme Court heard arguments this week about one of the greatest controversies in American criminal law: the differing treatment of crack and powder cocaine, reports the New York Times. Said Justice Sonia Sotomayor, “I don't know that there's one law that has created more controversy or more discussion about its racial impact than this one.” Crack and powder cocaine are two forms of the same drug. But, until recently, a drug dealer selling crack cocaine was subject to the same sentence as one selling 100 times as much powder.
In 2010, Congress enacted a law that reduced the disparity but only slightly. The question on Tuesday was whether the new, lesser punishments also applied to people who committed crimes before the law became effective but were not sentenced until afterward. The usual rule, set out in an 1871 law, is that new laws do not apply retroactively unless Congress expressly says so. Here Congress said nothing, or at least nothing in so many words. It did instruct the United States Sentencing Commission to act quickly to revise its discretionary sentencing guidelines to reflect the new ratios. Several justices suggested that the 1871 law might pose an insurmountable barrier to defendants who sold cocaine before August 2010.