After decades of public agitating that the federal sentencing laws are creating racist results, Congress famously lowered the 100-to-1 weight ratio (cocaine powder to crack) down to 18-to-1 with the Fair Sentencing Act in 2010. A significant remaining question is what to do with thousands of people languishing in prison under a defunct law. If the old law was unfair, or unconstitutional, does that make their sentences unconstitutional?
This week the 6th Circuit ruled that those sentences are in fact unconstitutional, and the law should be applied retroactively. Their rationale centers around the fact that although the law was not initially crafted with an intent to discriminate, and treat Black people more harshly, years later it became universally accepted that it does just that. Thus, to now maintain those sentences is to do it with the intent to discriminate. This is a powerful rationale.
It might be simpler to decide the straightforward question of whether Congress intended the new law to be retroactive, and most observers expected federal courts to focus on that. This court, just one step below the U.S. Supreme Court took a broader approach of incorporating Equal Protection under the 14th Amendment.
Fairness v. Discriminatory Intent
According to Senate Judiciary Chairman Patrick Leahy, the 100-to-1 ratio is “one of the most notorious symbols of racial discrimination in the modern criminal justice system.” 156 Cong. Rec. S1683 (daily ed. Mar. 17, 2010).
Many policies seem to be neutral on their face. Nobody says “pass this law so we can round up all the young Black males and put them away forever.” (Not on the record, at least). Yet when the War on Americans known as the “War on Drugs” kicked into gear, law enforcement overwhelmingly targeted Black Americans, and overlooked the clear majority of drug users: White Americans. Not only do the latter have far more actual drug users (which makes sense if a group is three-quarters of the whole), but they also have higher individual rates of usage. And yet over 80% of federal crack defendants have been Black American people, despite Whites using more crack.
Congress and the courts have since concluded that the 100-to-1 ratio was based on no empirical evidence, and realize a few $20 “rocks” will garner the same sentence as large bag of powder worth thousands of dollars. Basically, the sentencing structure was inverted, and the Big Willy dealer got less than the small time user — in direct violation of publicly claimed goals of stopping drug dealers.
Will 13,000 People Return to Their Families?
The 6th Circuit has binding federal law in Kentucky, Michigan, Ohio, and Tennessee. This case will be persuasive in the other courts that have yet to rule on the retroactive application of the Fair Sentencing Act. The real impact will be if, and when, this rationale infiltrates state courts. Federal prisoners constitute about 15% of all 2.5 million prisoners in America. And yet 15% of the federal prisoners (30,000) are serving time for crack. The bulk of this problem exists in state laws, state enforcement, state budgets, and state cultural levels of acceptance for racial disparity.
17,000 people would not be eligible for relief, even assuming this decision becomes the law of the land, because their sentence triggered other pieces of the complex sentencing provisions, such as “career criminal.” Yet 13,000 could be eligible for release or halfway houses as soon as they could be re-sentenced. The federal government is certainly petitioning the Supreme Court for review, which may take the case out of anticipation of another Circuit claiming otherwise (and may in fact wait for that to happen), and they will seek a stay of execution.
The Supreme Court
The Court spoke on the Fair Sentencing Act in 2010 (Dorsey v. United States), and clearly acknowledged the factual racial disparity, while concurring in Congressional intent to right the past wrongs. In that case, it was decided that people whose crimes predated the Fair Sentencing Act, yet their sentences came afterwards, were to be controlled by the Fair Sentencing Act — not the old 100-to-1 law. The ruling was 5-to-4, with Scalia writing a dissent joined by Roberts, Thomas, and Alito. Because Scalia and Thomas rarely see a punitive measure they disagree with, and the more punitive the better, they can typically be counted upon for their positions.
The Dorsey decision, penned by Justice Breyer, left open the question of full retroactivity because that was not the case before them. This court could agree with the 6th Circuit, yet create different reasoning. Or, of course, they could shoot it down. The reasoning is essential to the case as it can guide other applications of policies that create “disparate impact” — where a non-racist law results in racist outcomes. Policing patterns and tactics, such as non-enforcement on college campuses and Stop-and-Frisk based on “reasonable suspicion,” need a fresh analysis as to whether they conform with our fundamental principles of Equal Protection under the law.
A further indication of the Court’s approach might be found in the forthcoming Shelby County v. Holder decision. This Voting Rights Act case was well framed by Scalia when he opined, regarding the protection of voting rights, “isn’t this just another racial entitlement?” Clearly, at least one jurist can characterize the protection of a fundamental right as a bad thing needing elimination. How traditional swing justice Kennedy rules is important, as well as not-entirely-predictable Kagan, Alito, and Chief Justice Roberts. Whoever writes the Shelby County decision has an opportunity to provide the Court’s framework on civil rights and equal protection for years to come.
Justice Scalia’s Error
Scalia will once again assert that the law requires an express intent by Congress for this new Act to be retroactive. And that case precedent allows for a “fair implication” (past usages have been “clear” and “plain” implication). He doesn’t see that here. But he operates from a mistaken premise that the old law was constitutional, and fairly applied.
Congress did not create the new law simply because they decided to be more lenient on crack offenders. They struck down the old law because they recognized it had a racist application and racist result- this is in the Congressional Record. Thus, the proper questions are layered:
- Should the Fair Sentencing Act apply retroactively based on Congressional implication?
- Is the former sentencing structure, 100-to-1, a violation of Equal Protection where Congress has acknowledged its racially disproportionate impact?
- Can the intent of “disparate treatment” attach after a policy, drafted neutrally, becomes accepted as having disparate impact?
Our nation is often slow, imprecise, and incomplete when it comes to correcting injustices — with the most notorious being slavery. To publicly suggest, today, that slavery deserves any legitimacy is akin to suggesting that Hitler’s treatment of the Jews was understandable. Yet this universal agreement did not happen in 1861, nor 1866; it took roughly five generations to create actual race-neutral laws in America, and it has been only two generations since that change.
Our criminal justice policy in America, particularly the drug prohibition, is akin to our slavery policy of 1859. Most people realize it is anywhere from problematic to catastrophic. And even when we see a change, such as the Fair Sentencing Act, it is without the authoritative power of flags waving Truth, Justice, and Equality. We send teenagers off to foreign lands to “Defend Freedom,” with F-16 jets flying at sporting events, and yet we half-heartedly recognize that this racist policy should be “less racist” (rather than ending completely), and those who suffered under the racist regime, well… sorry.
The 6th Circuit majority (Judges Merritt and Martin) recognize that the old law has been deemed “racist” by the body that created it, and Equal Protection requires this more informed characterization to hold sway. As they say about the Dissenting judge:
“The dissent then refuses to acknowledge, come to grips with or rebut the equal protection argument in this case. The dissent fails even to acknowledge the language of the Supreme Court in Dorsey stating that Congress found the old 100-to-1 ratio to be racially discriminatory and therefore reduced the penalty to 18-to-1. Nor does the dissent acknowledge or rebut the many legislative history statements that the law the dissent would continue to apply is blatantly racially discriminatory. The dissent only cites United States v. Hammond, No. 12-5522, 2013 WL 1363908 (6th Cir. Apr. 5, 2013), as authority. The Hammond case does not purport to deal with the equal protection problem. A dissent that refuses to acknowledge the main problem in a case and then relies primarily on a case that does not mention the problem is not responsive or relevant. In order to be responsive, disagreement at least requires a discussion about why we should continue to hold thousands of people in jail who are there because of a law that is acknowledged to be racially discriminatory by a majority of the Supreme Court and by the vote of a large majority of the Congress of the United States. Congress does not often acknowledge that it passed a racially discriminatory law and then try to redress its own prior mistake. To be relevant, a dissent must at least try to deal with that issue.
In 2013 we are likely to see another Circuit’s opinion on the matter, and in 2014 we are likely to hear from either Breyer or Scalia, depending on which Supreme Court justice can swing four of his brethren.
Hopefully, at least some of the impacted people will read these rulings from the comfort of a home rather than the continued cold confines of a cellblock.
Sunday, 25 May 2013