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June 25, 2013

"Equal justice: An appeals court wisely rules on drug sentencing"

The title of this post is the headline of this notable new editorial appearing in today's Pittsburgh Post-Gazette discussing and praising last month's Sixth Circuit ruling in Blewett (basics here).   Here are excerpts:

In the nation's long, costly and practically futile war on drugs, severe sentencing disparities between crack and powder cocaine stand out as an egregious and misguided policy that was stoked by near-hysteria.

Convinced that crack cocaine was 100 times more dangerous than powder cocaine, lawmakers in 1986 enacted a notorious 100-to-1 sentencing scheme that levied the same prison sentence for possessing 5 grams of crack as it did for 500 grams of powder.

A 2010 law, the Fair Sentencing Act, restored some sanity to federal sentencing laws by narrowing considerably the disparities in sentencing between crack and powder. Unfortunately, the law did not spell out whether the new standards applied retroactively to people who were sentenced before it was enacted.

This month, however, a federal appeals court in Cincinnati ruled correctly that those sentenced for crack cocaine violations before the 2010 law was enacted can be resentenced under the new law. The cleanest and best solution would be for Congress to amend the Fair Sentencing Act to make it fully retroactive.

Until then, the ruling by the appeals court opens the door for thousands of inmates to ask federal judges to shorten their prison sentences. It expands a U.S. Supreme Court ruling last year that applied the Fair Sentencing Act to people who committed crack cocaine crimes shortly before more lenient penalties took effect in 2010.

It's time to undo fully these unjust and irrational sentences, which treated powder cocaine users -- who were typically white and often affluent -- far more leniently than the mostly black and poor users of crack cocaine.

Related posts on Blewett:

June 25, 2013 at 08:01 AM | Permalink

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Comments

"This month, however, a federal appeals court in Cincinnati ruled correctly that those sentenced for crack cocaine violations before the 2010 law was enacted can be resentenced under the new law. The cleanest and best solution would be for Congress to amend the Fair Sentencing Act to make it fully retroactive."

Actually, the ONLY legal "solution" is for Congress to act. Courts lack the power to "amend" statutes (although it's nice to see an acknowledgement that an amendment is what's needed). Someone at the Post-Gazette missed eighth grade history.

"Until then, the ruling by the appeals court opens the door for thousands of inmates to ask federal judges to shorten their prison sentences."

Since prisoners can and do file anything they want, the door has never been closed. Blewett himself, for example, didn't view it as closed.

"It expands a U.S. Supreme Court ruling last year that applied the Fair Sentencing Act to people who committed crack cocaine crimes shortly before more lenient penalties took effect in 2010."

Ummmm, courts of appeals don't get to "expand" Supreme Court rulings. Or if they do, maybe our friends on the Sixth Circuit could "expand" Miranda by holding that the police simply can't question anyone, warnings or no warnings. The possibilities here boggle the mind!

The one thing that's absent from the editorial is a single sentence setting forth, even briefly, a legal theory under which Blewett will survive.

Posted by: Bill Otis | Jun 25, 2013 9:41:11 AM

Translation: If you ignore the requirements of following binding authority, this is an agreement we very much like on policy grounds, so we'll praise it.

Posted by: Nope | Jun 25, 2013 10:52:45 AM

" “If Congress refuses to act, I’ve said that I’ll continue to do everything in my power to act without them.”

“I refuse to take ‘no’ for an answer,” Mr. Obama declared, beneath a “We Can’t Wait” banner.
“When Congress refuses to act and — as a result — hurts our economy and puts people at risk, I have an
obligation as president to do what I can without them.” The unilateralist strategy... "

B. Otis:
A brother of mine teaches 8th grade "Social Studies". In light of unchallenged activist practices becoming de rigeur,
and in deference to his hero, the President, he may need to transform his teaching of the constitutional balance
of power in practice, if not principle.

-- "Shift on Executive Power lets Obama Bypass Congress", 4/6/12, NYTimes

Nonetheless, U.S. District Judge John Bates seems to have it right: “it is not the court's role to fix a problem
that Congress failed to address
.”
-- legalltimes.typepad.com/
.../judge-finds-sudan-and-iran-liable-for-1998-embassy-bombings.html

Posted by: Adamakis | Jun 25, 2013 12:19:26 PM

Adamakis --

As I was saying on an earlier thread (about the sex registry SCOTUS opinion), liberals protect their own. If Bush had tried half the let's-just-circumvent-Congress stuff Obama tries, the Left would be jumping out of their skins to impeach him for his "Imperial Presidency," trashing the Constitution, et al. When Obama does the same thing or worse, it's just, "Well gosh, these Republicans are so obstructionist (translation: they have a House majority) that Obama has no choice!!!"

Liberals yelp all the time about other people's hypocrisy, but engage in it themselves to a breathtaking extent.

Posted by: Bill Otis | Jun 25, 2013 1:15:20 PM

Oh Bill, I often have such hope for you as an intelligent, intellectually honest conservative thinker, and then you go and trash it by sounding just like Rush Limbaugh. "Liberals" do this and "liberals" believe that. Such a waste.

Posted by: Anon | Jun 25, 2013 1:18:31 PM

Anon --

What do you suggest? That I stop using "liberals?" Should I stop using "conservatives" too?

In fact, there are, for purposes of this blog, identifiably liberal and conservative positions most of the time. The latter generally are more likely to favor imprisonment, and call for courts to defer to Congress rather than make it up on their own (as the Post-Gazette editorial would have it). The former take the opposite view, being less likely to favor imprisonment and more comfortable with judicial assertiveness.

Any intelligent, honest thinker will see this, as it is my strong bet you do.

Posted by: Bill Otis | Jun 25, 2013 1:41:59 PM

So these people who were convicted with "unjust and irrational sentences" can get their sentences reduced, but what about the "powder cocaine users -- who were typically white and often affluent" that were treated "far more leniently" could they get their sentences increased?

Posted by: Bruce D. | Jun 25, 2013 2:17:56 PM

Oh Bill, what I want is for you to stop being you. The world would be such a nicer place.

Posted by: Anon | Jun 25, 2013 2:45:43 PM

Anon:

Don't you realize that the world would actually be a much better place (according to Bill and federalist) if "libs" were wiped off the face of the earth. Of course, they would have to present rational arguments, (don't build a straw man and address the issue at hand) but it is much easier to just start every other argument blaming libs for this and that.

I am more conservative than those "faux" conservatives. I just recognize our errors and shortcomings. We are just very selective in our views and stick our head in the sand when our shortcomings are presented. That liberals do the same thing does not justify our arguments.

Posted by: albeed | Jun 25, 2013 3:29:28 PM

Anon --

"Oh Bill, what I want is for you to stop being you. The world would be such a nicer place."

Well, I'm glad we're staying focused on issues not people, anyway.

P.S. I don't have that much impact on "the world," so relax.

Posted by: Bill Otis | Jun 25, 2013 3:33:27 PM

albeed --

"I am more conservative than those 'faux' conservatives. I just recognize our errors and shortcomings."

Your problem is that you recognize ONLY our errors and shortcomings, and dwell on them to the exclusion of our incredible successes. One of them is reducing crime by half in the last 20 years.

Do you think that is a genuine and important accomplishment? Not that I've ever heard from you. But you can tell us now. Do you?

There is one area, however, in which you do not dwell on, or even mention, errors and shortcomings, that being your own thinking. You have been effusive in your praise of your brilliance as a scientist, even while castigating as uniformly stupid, or worse, everyone who has ever worked for the government.

Your sense of superiority -- even while refusing to identify yourself -- is, uh, remarkable.

Posted by: Bill Otis | Jun 25, 2013 5:53:33 PM

The editorialist is working with bad talking points on the demographics of the crack/powder disparity. What is relevant is not the population of users, but the population of federal offenders subject to the federal sentencing regime. The USSC's FY2012 stats say that federal crack offenders remain overwhelmingly black while federal powder offenders are . . . 55.7% Hispanic (15.5% white, by which I assume they mean non-Hispanic white, compared to 6.7% white for crack offenders). This has been true for quite some time. I went back a decade (to the comparable table for FY2002) and federal powder offenders that year were about 51% Hispanic. If you want a substantial group of federal drug offenders that's primarily non-Hispanic whites, you need to look at meth cases, and I have no reason to believe the meth Guidelines are unduly lenient. (This doesn't mean reducing the crack-powder ratio wasn't a good thing, of course.)

Posted by: JWB | Jun 25, 2013 6:38:30 PM

Jab
Psuedo converts to marihuana is 5 times higher than meth.
So those that get caught with the final product, get a good bit lower sentence.
Providing they toss the blister packs and the big dealers don't rat on their shopping trips.

Makes perfect sense, right..

Posted by: MidWestguy | Jun 25, 2013 11:04:53 PM

Mr. Bill, P.S. I don't have that much impact on "the world," so relax.

Yes, you do, but I believe in feeding the trolls.

Posted by: George | Jun 26, 2013 2:03:04 AM

'Your sense of superiority -- even while refusing to identify yourself -- is, uh, remarkable.'

usual dirtbag comment, please do everyone a favor and take that ugliness somewhere else.

Posted by: occasional reader | Jun 26, 2013 12:59:21 PM

Bill is a good guy, but for sure he is a scraper... You know where he stands and he brings a very different look to the table.

Bill doesn't normally get personal... But loves to stir the pot.

He is a very smart man.
I enjoy my few tangles with him, and are better off with him..
Who else can say what he does in 2 sentences...I'm pretty smart from an analytical view, but not so much in other areas..Like grammar.. ha ha..

Posted by: MidWest Guy | Jun 26, 2013 1:25:27 PM

MidWestGuy --

Thanks. Personal comments are not my preference, but unilateral disarmament is even less of a preference.

I think your grammer is OK, unlike my occassional problems with spelling.

Posted by: Bill Otis | Jun 26, 2013 2:54:21 PM

Bill:

I strongly disapprove of occasional reader's comment at 12:59 PM and I strongly believe that you have important viewpoints to share. Many of your observations are correct and valuable. I am sorry if I offend you in any way as your comments certainly do not offend me. I agree with Midwest Guy also.

The jury is still out in my mind in how much harsh sentencing has reduced "crime" in the last 20 years. I believe that there are many more factors that come into play and am not willing to sing the praises of the government (which has more crooks per capita than anyone else), the FBI and DOJ, among others. I also have first hand experience with how the DOJ loosely strung together anecdotal E-mails and "we" as a company decided it was easier to pay-off the government rather than fight an ongoing battle, even though as an insider I KNEW we were innocent of the charges.

We are much better off on this site with your comments!

Posted by: albeed | Jun 26, 2013 4:05:27 PM

albeed --


Thank you sir.

Posted by: Bill Otis | Jun 26, 2013 5:28:32 PM

Bill I failed to mention that debating is actually what you are about. Most get so sensitive when you give it the old twist and grind approach. Some may of graduated from the right universities, but it takes tenacity and mental energy to bat the ball back and forth with you. That's where the rubber hits the road and most strike out.

Posted by: MidWestguy | Jun 26, 2013 8:23:03 PM

MidWestGuy --

You hit the nail on the head more than you know.

When I finished with grad school, I had no very good idea what to do. God forbid I should actually get a job. One day my father suggested that I go to law school. I asked him why he thought I should become a lawyer. His answer was, "Because all you do is argue."

Posted by: Bill Otis | Jun 26, 2013 11:16:54 PM

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