Justices hear appeal on drug penalty inequities

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WASHINGTON -- Percy Dillon and the law each have changed dramatically since a federal judge in Pittsburgh sentenced him to nearly 27 years in prison in 1993.

The United States Supreme Court on Tuesday weighed those twin transformations in a case that could have a wider impact on thousands of prisoners eligible to challenge lengthy crack cocaine-related incarcerations.

As a 23-year-old from San Francisco, Mr. Dillon was convicted as part of a crack-dealing conspiracy that distributed drugs in the Pittsburgh area. He has since become the founder of a mentoring program partnering prisoners with at-risk youth, and, now 40 and imprisoned in Georgia, Mr. Dillon is a scholar of African-American history and culture and helps educate his fellow inmates.

Meanwhile, the strict sentencing guidelines for crack cases -- far longer that those for powder cocaine -- were rolled back by the U.S. Sentencing Commission, prompting Mr. Dillon to challenge his prison term. Senior U.S. District Judge Alan N. Bloch, who had remarked at the original sentencing that Mr. Dillon deserved less but that he was bound by the guidelines, shaved four years off the sentence in accordance with the new rules.

But Mr. Dillon appealed, arguing that Judge Bloch was not bound by those revised guidelines and could go as low as he saw fit. The Supreme Court, in the 2005 Booker v. United States case, had given judges leeway in sentencing outside the guidelines -- though it did not apply retroactively.

Thus, the case hinges on whether Mr. Dillon's case was, as assistant to the solicitor general Leondra R. Kruger argued, a mere modification of the sentence or a complete resentencing, as Pittsburgh federal public defender Lisa B. Freeland argued in her first appearance before the court.

Ms. Freeland seemed to have a friend in Justice Antonin Scalia, who said flatly, "It is the nature of the Sentencing Commission's policy statement that is unconstitutional" for mandating a guideline range and not taking Booker into account.

Justice Stephen Breyer, often at odds with Justice Scalia, said that the court did not make Booker retroactive for a reason and worried about clogging the federal courts with thousands of reopened cases.

"To make any drug-related change, you see, and then make that retroactive, is going to reopen the sentencing for every single person who has already been convicted of a drug crime in the federal courts, of which there are probably tens of thousands," Justice Breyer told Ms. Freeland.

Justice Anthony Kennedy, in questioning Ms. Kruger, took the opportunity to remark on the need for reform in the country's overtaxed prison system after discussing Mr. Dillon's sympathetic story -- the likely reason the court chose to hear this particular case.

Not one of about 185,000 federal prisoners, Justice Kennedy noted, had their sentences commuted last year. In 2008, he said, there were five commutations.

"Does this show that something is not working in the system?" Justice Kennedy asked.

Ms. Kruger said that she wasn't prepared to answer that question.

But the day was not a referendum on the justice system or even the crack-powder sentencing disparity -- which the court has already denounced. The Senate this month passed the Fair Sentencing Act, with Sen. Arlen Specter, D-Pa., as a co-sponsor, to even out the wildly different sentencing law for the different types of cocaine. The bill is pending in the House.

Instead, the justices focused on the application of the crack statute, which Ms. Freeland said was unconstitutional based on a small word choice. The previous 26 sentencing commission changes to current guidelines said the court "should" sentence in a certain way, while the crack guidelines said "shall" -- language that unduly binds the judge, Ms. Freeland said.

Ms. Kruger argued that courts should be bound to follow the intent of the sentencing commission and Congress. Also, she said, opening the door to a flood of sentencing challenges along the line of Mr. Dillon's would make the commission less likely to make any of their recommendations retroactive.

Eight justices heard the case, as Justice Samuel Alito recused himself for undisclosed reasons. The court will issue a ruling at an undetermined later date.

After the hour-long arguments, Ms. Freeland exchanged hugs with family members in the court's grand foyer.

"I was surprised that I was able to speak," Ms. Freeland said.

"It's really hard to describe, especially a case like this when I know Mr. Dillon isn't the only one counting on me, but thousands of others with unjust sentences."

Daniel Malloy: dmalloy@post-gazette.com or 202-445-9980.


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