Federal Appeals Court Says Shorter Crack Sentences Must Be Retroactive


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Last Friday I noted that the Fair Sentencing Act of 2010, which shrank the penalty gap between the snorted and smoked forms of cocaine, does not apply retroactively. Later that same day, the U.S. Court of Appeals for the Sixth Circuit said that aspect of the law is unconstitutional, violating the Fifth Amendment's implicit guarantee of equal protection. According to the three-judge panel that heard U.S. v. Blewett, "The Act should apply to all defendants, including those sentenced prior to its passage." (Last year the U.S.  Supreme Court addressed a similar but distinct issue, ruling in Dorsey v. United States that the Fair Sentencing Act applies to defendants who committed their offenses before the law took effect but were sentenced afterward.)

The 6th Circuit's decision hinges on the racially skewed impact of crack sentencing rules, which prior to the 2010 law treated one gram of crack as equivalent to 100 grams of cocaine powder. (The Fair Sentencing Act reduced that ratio, making it 18 to 1 rather than 100 to 1.) Because federal crack defendants are overwhelmingly black, the upshot of extra heavy penalties for that form of cocaine has been that dark-skinned cocaine offenders are punished more severely than light-skinned cocaine defendants. Now that Congress has acknowledged and sought to correct that problem, the 6th Circuit says, forcing crack offenders sentenced under the old rules to complete their terms amounts to unconstitutional racial discrimination. I agree that it's crazy to make thousands of crack offenders finish sentences that Congress almost unanimously declared excessively long. (Although President Obama has the power to address that obvious injustice through commutations, so far he has shortened just one sentence.) But the 6th Circuit's legal reasoning seems like a stretch.

Notably, the prisoners seeking retroactive application of shorter crack sentences, both of whom received 10-year mandatory minimums in 2005, did not make the argument that the 6th Circuit ended up endorsing. Dissenting Judge Ronald Lee Gilman therefore faults the two other members of the panel, Gilbert S. Merritt Jr. and Boyce F. Martin Jr., for deciding an "unbriefed and unargued issue." Merritt and Martin "readily acknowledge that no party challenges the constitutionality of denying retroactive application of the Fair Sentencing Act to people who were sentenced under the old regime." Furthermore, they concede that "there is no equal protection violation without discriminatory intent" and that "there was no intent or design to discriminate on a racial basis" when the 100-to-1 weight ratio was enacted in 1986 (with support from many black members of Congress). But once the racially disparate impact of that law became apparent, the majority argues, addressing it became constitutionally mandatory:

We regard as the most important consideration the clear congressional purpose to end the long, racially discriminatory sentences imposed in crack cocaine cases over the past 25 years and the fact that the perpetuation of such sentences is unconstitutional….

The old 100-to-1 crack cocaine ratio has led to the mass incarceration of thousands of nonviolent prisoners under a law widely acknowledged as racially discriminatory….

Like slavery and Jim Crow laws, the intentional maintenance of discriminatory sentences is a denial of equal protection….

We are constrained to interpret statutes and sentencing guidelines so as to avoid potential conflict with the Constitution….

Perpetuation of such racially discriminatory sentences by federal courts is unconstitutional and therefore the sentencing guidelines must be interpreted to eliminate such a result.

To my mind, the main reason federal crack sentences are unconstitutional is that Congress has no authority to criminalize possession of intoxicants it does not like, which is why alcohol prohibition required a constitutional amendment. And if the "rational basis" test meant what it sounds like, neither the original crack sentencing scheme nor the less onerous but equally arbitrary one approved by Congress in 2010 would survive equal protection analysis even without a racial angle, since treating two forms of the same drug so differently never really made sense. But assuming, for the sake of argument, that Congress has the power to ban drugs and that there are sound reasons for punishing crack cocaine offenders more severely than cocaine powder offenders, it is hard to see why the fact that crack defendants are rarely white renders an otherwise justified law unconstitutional.

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  1. The 6th Circuit’s decision hinges on the racially skewed impact of crack sentencing rules

    The 6th Circuit is just fighting anti-crack hysteria with pro-crack hysteria.

    1. Won’t somebody think of the crack babies?

  2. So the 6th circuit wants MORE crack babies. Who’s the racist again?


    1. Wasn’t the whole crack baby thing overblown?

      1. The media, professional nannies, and government conspiring together by appealing to the welfare of children?

        You’re fucking crazy.

      2. There’s a video about this today on the New York Times online. Just watched it.

  3. While I’m glad that this gives an opportunity (not a guarantee, since I imagine a lot of those serving sentences for crack possession are going to get screwed over by other things like weapon possession at the time of arrest) for these drug-war victims to get out of jail earlier – doesn’t this set a precedent whereby in the future, if the sentence for a crime is *increased*, those already incarcerated can have there sentences extended?

    It just seems that this violates the principal of no post-facto laws.

  4. Won’t somebody please think about the Toronto mayors?

  5. Applying the sentences retroactively is asinine, even if you think the previous sentences were asinine.

    Would the 6th circuit start mandating refunds, compensation, and expungement for people who were jailed before pot was decriminalized in those districts?

    The law was what the law was when the offenses occurred.

    1. When KY got rid of their “intangibles” tax, the courts made them back refund money for about 10 years.

      They acknowledged that technically it should have been since the tax was started, but it wasnt practical.

      1. Now if only we’d get rid of our income tax and private property tax . . .

        Having to pay 6% of the blue book value of one’s car(s), boat(s), etc EVERY FUCKING YEAR is asinine.

      2. Wasn’t it because the law was unconstitutional and, therefore, was never legitimate?

        I don’t think that’s the basis of this decision.

  6. Does this mean that all pot offenders should be released in WA and CO?

    1. Does this mean that all pot offenders should be released in WA and CO?

      I would argue yes based on the fact that the new sentence is NO sentence, and well, from the standpoint of basic morality too.

      1. I’d argue that the *governor* should be pardoning these people, not that the court should apply retroactive sentencing.

        Actually, the very fact that the governors of states where MJ is now legal shouldn’t even allow it to get to the court – being a decent human being means that they should have already started the pardon process.

        Same goes for Obama and crack – at the very least he should have unilaterally reduced the sentences of those in federal prison.

        1. Same goes for Obama and crack – at the very least he should have unilaterally reduced the sentences of those in federal prison.

          But that would require Obama to not be a douche bag drug warrior for a few minutes.

          1. …”But that would require Obama to not be a douche bag”…

            Say no more!

      2. …”from the standpoint of basic morality too.”

        Tough. Imagine how many prison guards would lose their jobs.

        1. Imagine the crime wave from unemployed cops and prison guards. That would probably be the worst aspect of legalization.

  7. I gotta agree with Sullum here. Either the fed’s drug war is unconstitutional (which it is) and EVERYONE serving time for a federal drug offense should go free (unless they are in prison for other offenses, too), or the law is what it was and the proper recourse lies with the executive branch’s pardon power.

    This “we don’t want to enforce laws because we crunched the numbers and found out it affected darker-hued people more than lighter-hued people, so we’ll make laws ex post facto” doesn’t pass even a basic judicial logic test.

  8. I don’t think I follow the legal reasoning. Laying aside the matter of the validity of the prohibition, the offenders prior to the revision knew or should have known what the penalty could have been for their offense. That penalty could have been applied equally to all offenders. It could also be argued that there is a group of people who were deterred from the prohibited behavior that are not deterred by the new sentences. Thus if the new sentences apply retroactively it’s not fair to that group of people since they were prevented from doing what they wanted to under the incorrect impression that they would suffer the full penalty.

    As others have said, there doesn’t seem to be a legal duty to release people convicted under laws that were repealed later. There is perhaps a moral duty in many cases, since you could say that we repealed the law because we determined it’s unjust to punish people for whatever the law prohibited or mandated. But legally there’s a transactional element to it; the violators knew of the law and did what they did anyway understanding the penalty. So I don’t know. I think executive clemency is probably the right way to go for these situations.

  9. A hesitant half step in the right direction. Do you really expect our rulers to say “We fucked up”?

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