Pubdate: Mon, 06 Jan 2014
Source: New York Times (NY)
Copyright: 2014 The New York Times Company
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Website: http://www.nytimes.com/
Details: http://www.mapinc.org/media/298
Author: Linda Greenhouse

CRACK COCAINE LIMBO

President Obama earned a rare moment of bipartisan acclaim last month 
when he commuted the sentences of eight long-serving federal 
prisoners. Their crack cocaine offenses had resulted in the harsh 
penalties mandated by a sentencing formula that Congress repudiated 
when it passed the Fair Sentencing Act of 2010. The old formula, 
under which possession of a quantity of crack earned the same 
sentence as possession of 100 times that quantity of powdered 
cocaine, was "now recognized as unjust," the president said.

But there were ghosts at last month's party: thousands of federal 
inmates still serving time under sentences that would not have been 
imposed under the new law. Most are black. As is widely recognized, 
crack has been the cocaine of choice for African-American users and 
dealers even as white offenders choose powder. The racially disparate 
impact of the old law, which dates from the crack-cocaine panic of 
the mid-1980s with its now-discredited theory that crack was many 
times more dangerous, made reform a civil rights priority.

These prisoners remain in drug-sentencing limbo. When Congress passed 
the Fair Sentencing Act, which reduced the crack-to-powder sentencing 
ratio from 1:100 to 1:18, it was silent on retroactivity. The Supreme 
Court granted limited relief two years ago, ruling that those who 
committed their crimes before the law took effect in August 2010 but 
who were not sentenced until later could retroactively get the new 
law's benefit.

In his majority opinion, Justice Stephen G. Breyer said this outcome 
was consistent with Congress's "language, structure, and basic 
objectives." But the decision, Dorsey v. United States, said nothing 
encouraging about broader retroactivity, and the most conservative 
members of the court wouldn't even have gone that far. The vote was 5 to 4.

Senators Richard J. Durbin, Democrat of Illinois, and Mike Lee, 
Republican of Utah, introduced a bill last summer to authorize judges 
to grant relief to pre-2010 prisoners on a case-by-case basis. But 
the Smarter Sentencing Act, as its sponsors call it, has yet to move 
toward a vote.

Something there is that doesn't love retroactivity. It's hard-wired 
in the American DNA, and embodied in the Fifth Amendment's ex post 
facto clause, that when things change for the worse - a harsher 
sentence, a new crime - the effect should be prospective only.

So maybe there's a kind of balance to the notion that on the rare 
occasions when the criminal justice system becomes more lenient, the 
effect should be only prospective as well. After all, offenders knew 
the rules. And yet there is something too pat about that assumption 
of equivalency, something grindingly unfair about the plight of those 
pre-2010 inmates. (As a reminder, the same mandatory five-year 
minimum sentence resulted from possessing with intent to distribute 
five grams of crack cocaine, less than one-fifth of an ounce, and 500 
grams of cocaine powder, more than a pound.)

Society made a judgment, expressed in a bipartisan political 
consensus, that disparities of this kind were irrational and racially 
inequitable. Passage of the Fair Sentencing Act was preceded by years 
of debate, including pleas by federal judges who hated what the law 
made them do. Gradually, insight emerged. Keeping a known and finite 
group of people locked in a system acknowledged to be irrational is 
irrationality itself.

A federal appellate panel last spring went further, finding it not 
just irrational but unconstitutional. In a 2-1 ruling in United 
States v. Blewett, the United States Court of Appeals for the Sixth 
Circuit held that because "the discriminatory nature of prior crack 
sentences is no longer a point of legitimate debate," denying 
retroactive effect to the new law "would perpetuate proven racial 
discrimination and thereby violate equal protection."

The Obama administration moved within days to ask the full Sixth 
Circuit to overturn the panel's decision. Citing Supreme Court 
precedents holding that only intentional discrimination, and not 
merely a foreseeable discriminatory effect, violates the 
constitutional guarantee of equal protection, Justice Department 
lawyers told the Sixth Circuit that the panel's decision was based on 
"a nonexistent equal-protection problem" and was seriously flawed. 
Last month, the full Sixth Circuit overturned the panel decision by a 
vote of 10-7.

Every appeals court to reach the issue has now ruled against 
retroactivity for the Fair Sentencing Act. That means the Supreme 
Court is unlikely to intervene. But another retroactivity question is 
looming. There is growing disagreement in the state courts over 
whether to give retroactive effect to the justices' 2012 ruling in 
Miller v. Alabama, which invalidated mandatory sentences of life 
without parole for juveniles who commit murder. The fate of some 
2,000 life-sentenced inmates hangs in the balance. So does our own 
sense of justice.
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MAP posted-by: Jay Bergstrom