Nancy Gertner, HLS professor of practice and former judge of the U.S. District Court for Massachusetts, was counsel of record in an amicus brief (PDF) submitted to the U.S. Supreme Court in Dorsey v. U.S. and Corey Hill v. U.S. The Court’s decision will determine whether the Fair Sentencing Act of 2010, which redressed some of the inequities in the sentencing of defendants in crack-cocaine cases, applies to defendants who were sentenced after the law was enacted, but whose crimes were committed beforehand.
The brief argues that Congress enacted the FSA to correct errors in the Anti-Drug Drug Abuse Act of 1986 and that it represents an acknowledgment that “sentencing under the prior law was unjust.” It makes the case that to rule that “the FSA applies only to those whose crime occurred after the date of its enactment will dramatically compound the acknowledged unfairness of the 1986 Act. It will oblige federal district judges for five years after the FSA’s enactment (the statute of limitations for these offenses) to perpetuate an injustice recognized not only by Congress, but by the Executive (through the Department of Justice), the Sentencing Commission, and the bench.”
Ultimately, the brief argues, such an interpretation “will damage the legitimacy of the sentencing process.”
Gertner wrote the brief with another former federal judge, Paul Cassell. Both have sentenced defendants under the mandatory-minimum provisions of the 1986 Act. Both have written opinions and articles expressing their deep concerns about the unfairness of the mandatory-minimum penalties for non-violent drug offenders and the racial disparities that they have engendered.