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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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