This week the Supreme Court considered, in Dorsey v. United States and Hill v. United States, whether the Fair Sentencing Act of 2010 applies retroactively to those prisoners sentenced before the act took effect. A number of media outlets reported on the oral arguments, including  Lyle Denniston at SCOTUSBlog; Adam Liptak at the New York Times; Mike Sacks at the Huffington Post; David G. Savage of the Los Angeles Times; and Robert Barnes of the Washington Post. The oral argument transcript can be found here.

From reading the transcript and the articles from the people who covered the arguments, it appears that the Court was inclined to rule that defendants cannot take advantage of a law designed to change a large racial disparity.

Notable during the argument was a comment made by Justice Scalia regarding why Congress would have chose to reduce a law leading to racial disparities and yet not apply that law retroactively. He said:

“I would find that extraordinary, that they say it’s racist but we are going to leave in effect all of the sentences that have previously been imposed. That seems to me very unlikely.”

What strikes me as funny about this comment is Justice Scalia’s utter unawareness about how Congress legislates on criminal justice issues. He acts as if Congress is rational in this area of law when they are not. What strikes me as sad about the comment is that Justice Scalia is so easy to dismiss how unfair Congress can be when issuing policy in the criminal justice arena. Is it really unbelievable that everyone  in Congress knows that the crack/powder cocaine sentencing disparity is unfair and racist, but that they won’t change the rule anyway? I could point to so many examples of where this has happened and continues to happen that I could fill 20 blog posts.