News Release

Court Reaffirms Fairness in Corporate, Cocaine Sentencing

Washington, DC (June 21, 2012) – The U.S. Supreme Court today stood up for fairness in sentencing in two very different types of criminal cases. The National Association of Criminal Defense Lawyers joined and filed amicus curiae, or friend of the court, briefs in both cases supporting the principle of fair and even-handed sentences.

In the first decision handed down this morning, Southern Union Co. v. United States, No. 11-94, the court interpreted the right to have any fact that would determine a criminal fine be found by the jury to be proven beyond a reasonable doubt. In an opinion by Justice Sonya Sotomayor, the Court held 6-3, per its prior decision in Apprendi v. New Jersey, that the same protections for other forms of punishment apply to criminal fines. Today’s decision will have a significant impact on corporate defendants who cannot be imprisoned because of their non-corporeal nature but still face significant sanctions.

The brief filed by the U.S. Chamber of Commerce and NACDL in Southern Union Co. was authored by Benjamin C. Block and Mark D. Herman, of Covington & Burling LLP, Washington, D.C., and was cited favorably in the Court’s majority opinion for its argument that “exempting criminal fines from Apprendi, makes innocent defendants more likely to plead guilty” in plea bargains rather than “roll the dice” and assert their right to a jury trial.

In the other sentencing case decided today, the one that is sure to generate more news, the Court held that defendants who committed a cocaine offense before the Fair Sentencing Act of 2010 went into effect, but who were sentenced after its effective date, are entitled to the benefit of the law’s reduced sentencing provisions. The case, Dorsey v. United States, No. 11-5683, was consolidated out of two separate appeals from the U.S. Court of Appeals for the Seventh Circuit. The act greatly reduced the overall sentencing disparity between crack cocaine and powder cocaine, and raised the threshold amounts of crack required to trigger mandatory minimum sentences.

Jeffrey Green, a partner at Sidley Austin LLP, Washington, D.C., is a co-chair of NACDL’s Amicus Curiae Committee and a co-author of the brief in Dorsey. Following today’s decisions, he observed, “As Justice Breyer said from the bench this morning, the question as to why Congress would not want the FSA to apply to all sentencings after the effective date just cannot be answered.” The other authors of the Dorsey brief were Peter Goldberger of Ardmore, PA, Clayton Northouse, also of Sidley Austin, Sarah O’Rourke Schrup, of the Northwestern University Supreme Court Practicum, Chicago, and S. David Mitchell, of the University of Missouri School of Law.

The joint brief of the U.S. Chamber of Commerce and NACDL in support of the Southern Union Co., and the joint brief of NACDL and the National Association of Federal Defenders in support of Edward Dorsey and Corey Hill are available for viewing or downloading at NACDL’s website,

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Jack King, Director of Public Affairs & Communications, (202) 465-7628 or

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal legal system.