Sixth Circuit Smacks Down 'Crack's' Sentencing Disparities Retroactively
by Larry Delano Coleman, Esq.
05/24/13
Mincing few words, the Sixth Circuit Court of Appeals, last week, struck down, as “racist” and as violative of the equal protection of law, federal sentencing guidelines which, at one time, punished crack cocaine 100-1 times more severely than powder cocaine. Crack is a form of cocaine primarily used by blacks; powder cocaine is primarily consumed by whites.
This is one of the most significant decisions in American legal history! Unless stayed by the U.S. Supreme Court, it may set thousands of black "crack" captives free from federal prisons, at least in Kentucky, Tennessee, Ohio, and Michigan, the federal 6th Circuit Court of Appeals' states! The other 11 federal courts of appeal may now do likewise, being emboldened. The gauntlet has been thrown down!
Elena
Kagan is
the circuit
justice for
the Sixth Circuit. Being an Obama appointee, it is unlikely that she
would issue a stay unilaterally, nor grant a petition seeking
certiorari from federal prosecutors, given the state of prevalent
judicial politics.
The
case is unusual in more than one way. First, the appellants, two
currently incarcerated cousins named Blewett, did not challenge the
unconstitutionality of the crack-cocaine sentencing disparity on
appeal at all, on any ground whatsoever. Perhaps, they were prudent
or deterred by the negative, seemingly futile, outcomes in similar
constitutional challenges. So, for any court sua
sponte—on
its own—to reach a constitutional issue is rare, though not
unprecedented.
The
second unusual aspect of this decision is that it completes the
legislative relief, for those unconstitutionally wronged, that
Congress was unwilling to finish: grant retroactive application to
those wrongly incarcerated under the old 100-1 guidelines which were
mitigated to 18-1 in 2010 by the Fair Sentencing Act.
The
Court wrote:
This
is a crack cocaine case brought by two currently incarcerated
defendants seeking retroactive relief from racially discriminatory
mandatory minimum sentences imposed on them in 2005. The Fair
Sentencing Act was passed in August 2010 to "restore fairness to
Federal cocaine sentencing" laws that had unfairly impacted
blacks for almost 25 years. The Fair Sentencing Act repealed portions
of the Anti-Drug Abuse Act of 1986 that instituted a 100-to-1 ratio
between crack and powder cocaine, treating one gram of crack as
equivalent to 100 grams of powder cocaine for sentencing purposes.
The 100-to-1 ratio had long been acknowledged by many in the legal
system to be unjustified and adopted without empirical support. The
Fair Sentencing Act lowered the ratio to a more lenient 18-to-1
ratio. However, thousands of inmates, most black, languish in prison
under the old, discredited ratio because the Fair Sentencing Act was
not made explicitly retroactive by Congress.
In
this case, we hold, inter alia, that the federal judicial
perpetuation of the racially discriminatory mandatory minimum crack
sentences for those defendants sentenced under the old crack
sentencing law, as the government advocates, would violate the Equal
Protection Clause, as incorporated into the Fifth Amendment by the
doctrine of Bolling v. Sharpe, 347
U.S. 497 (1954)
(Fifth Amendment forbids federal racial discrimination in the same
way as the Fourteenth Amendment forbids state racial discrimination).
As Professor William J. Stuntz, the late Harvard criminal law
professor, has observed, "persistent bias occurred with respect
to the contemporary enforcement of drug laws where, in the 1990s and
early 2000s, blacks constituted a minority of regular users of crack
cocaine but more than 80 percent of crack defendants." The
Collapse of American Criminal Justice 184 (2011). He recommended
that we "redress that discrimination" with "the
underused concept of `equal protection of the laws.'" Id. at
297.
In this
opinion, we will set out both the constitutional and statutory
reasons the old, racially discriminatory crack sentencing law must
now be set aside in favor of the new sentencing law enacted by
Congress as the Fair Sentencing Act of 2010. The Act should apply to
all defendants, including those sentenced prior to its passage. We
therefore reverse the judgment of the district court and remand for
resentencing.
This
case emerges in the context of variegated assaults on the so-called
“War on Drugs,” which became crystallized very sharply with the
release of Michelle Alexander's jaw-dropping factual and statistical
revelations in her bestselling book, THE
NEW JIM CROW: Mass Incarceration in the Age of Color Blindness.
Her work eviscerates as it illuminates every corner, nook, and cranny
of the intentionally racist drug war, which targets blacks, the
seldom-acknowledged minority of drug users, sellers or importers,
disproportionately, with mandatory minimum sentencing guidelines,
reflecting their intrinsic insidiousness. A video presentation of her
work given at a Pasadena, California, library may be found at
http://www.youtube.com/watch?v=C7IB-e3SrH0
. Alexander's
views and findings are more than vindicated by this decision.
Constructing
their decision carefully and deliberately from Supreme Court
precedents as well as other cases, Congressional legislative history
of relevant statutes, the words of the affected statutes, and
secondary authorities, the split panel which handed down the May 17,
2013, opinion over the dissent of one of its 3 members appeared to
fortify itself against a motion for rehearing to the entire court.
The case is
United
States v. Blewett, No. 12-5226 (6th Cir. May 17,
2013).
http://www.leagle.com/xmlResult.aspx?xmldoc=In%20FCO%2020130517095.xml&docbase=CSLWAR3-2007-CURR
#30
