Fair Sentencing Act: Are Crack Cocaine Laws Intentionally Racist?

On Friday, a federal appeals court issued a sweeping decision in which it said that the sentences of people convicted of crack cocaine offenses should be retroactively reduced in all cases. The U.S. 6th Circuit Court of Appeals ruled that not doing so would be unconstitutional because the present system is racially discriminatory, with black people making up the vast majority (over 80%) of those serving sentences for crack cocaine offenses. In 2010 Congress recognized the massive racial disparity between mandatory minimum sentences for crack cocaine offenses and cocaine offenses and reduced the ratio from 100:1 to 18:1 under the Fair Sentencing Act. Although the Supreme Court ruled last year that the reductions should be applied to cases decided, but not yet sentenced, before the law was passed, this latest ruling argues that it should apply retroactively to all cases.

Nicole Flatow of Think Progress argues that the 6th Circuit Court ruling represents "a powerful statement about the troubling history of drug sentencing." And if upheld it could affect the lives of tens of thousands of inmates who would be able to seek reduced sentences.

Although other panels of the U.S. 6th Circuit Court of Appeals have previously rejected requests to extend the scope of the reductions, in a two-judge majority opinion on Friday, judges Gilbert Merritt and Boyce Martin wrote:

"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. There were approximately 30,000 federal prisoners (about 15% of all federal prisoners) serving crack cocaine sentences in 2011. Thousands of these prisoners are incarcerated for life or for 20, 10, or five years under mandatory minimum crack cocaine sentences imposed prior to the passage of the Fair Sentencing Act. More than 80% of federal prisoners serving crack cocaine sentences are black. In fiscal year 2010, before the passage of the Fair Sentencing Act, almost 4,000 defendants, mainly black, received mandatory minimum sentences for crack cocaine. […]

The Fair Sentencing Act was a step forward, but it did not finish the job. The racial discrimination continues by virtue of a web of statutes, sentencing guidelines, and court cases that maintain the harsh provisions for those defendants sentenced before the Fair Sentencing Act. If we continue now with a construction of the statute that perpetuates the discrimination, there is no longer any defense that the discrimination is unintentional. The discriminatory nature of the old sentencing regime is so obvious that it cannot seriously be argued that race does not play a role in the failure to retroactively apply the Fair Sentencing Act. A “disparate impact” case now becomes an intentional subjugation or discriminatory purpose case. Like slavery and Jim Crow laws, the intentional maintenance of discriminatory sentences is a denial of equal protection."

Definitely a strong, unequivocal statement that things need to change. The ruling came in the case of two Kentucky men who had both been sentenced to 10 years in prison for possession and distribution of crack cocaine. According to the Associated Press, judges Merritt and Martin brought up the issue of equal protection under the law themselves, with neither the prosecution or defense attorneys having raised the issue in the case.

The dissenting judge, Ronald Lee Gilman, argued that the Court had overstepped its bounds in issuing the ruling and that it was instead up to Congress to make changes to the Fair Sentencing Act. "Congress is of course free to amend the Fair Sentencing Act to make it fully retroactive, but that is a legislative prerogative and not appropriate for this court to simply decree," he wrote, also arguing that "the lack of any constitutionally relevant distinction between the old ratio and the new ratio further undermines the majority's equal protection rationale."

Merrit, however, argued that the courts should not simply wait for Congress to take action. "We should not allow the government's legalism to undermine the purpose of the Fair Sentencing Act and its more lenient punishment system for crack cocaine," he wrote. And given how slowly Congress works, this approach makes sense as a means to further address the glaring racial disparity in drug sentencing laws. It remains to be seen whether the ruling will be appealed, but it seems likely.