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August 19, 2013

"Crack Cocaine, Congressional Inaction, and Equal Protection"

The title of this post is the title of this new paper on SSRN authored by Paul Larkin Jr. and which appears to be critical of the Sixth Circuit's (now vacated) panel decision in US v. Blewett. Here is the abstract:

For decades, scholars and courts have debated whether the Anti-Drug Abuse Act of 1986 discriminates against African Americans by imposing far stiffer punishments for trafficking in crack cocaine than in its powdered form.  The academy has generally concluded that the federal crack cocaine sentencing laws are racially discriminatory, while the federal courts have almost uniformly rejected the same argument. Three years ago Congress, via the Fair Sentencing Act of 2010, addressed the issue by reducing, without eliminating, the sentencing disparity. Recently, the U.S. Court of Appeals for the Sixth Circuit in United States v. Blewett, 719 F.3d 482 (6th Cir. 2013), concluded that the 2010 statute would be unconstitutional if it were not applied retroactively. The Blewett case forces this debate back into the political arena.

The Sixth Circuit misapplied equal protection law.  Rather than ask whether Congress refused to apply the Fair Sentencing Act retroactively for a discriminatory purpose, the court concluded that Congress’s decision to adopt a prospective-only statute was tantamount to readoption of Jim Crow.  Settled law, however, requires proof of discriminatory intent.  Moreover, Congress’s refusal to adopt retroactive legislation cannot violate the Due Process Clause.  The clause applies only to positive law, so Congress cannot violate the clause by not enacting legislation.  Finally, the Sixth Circuit failed to consider the effect of strict enforcement of the drug laws on the innocent residents of communities where crack trafficking occurs.  It may be unwise to continue to imprison crack offenders for the full length of their prison terms imposed under the strict provisions of a now-amended law, but a mistaken decision is not invariably an unconstitutional one.

Related posts on Blewett:

August 19, 2013 at 04:30 PM | Permalink


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Yes, the article is highly critical of the panel’s equal protection ruling. It also echoes the embarrassing, inflammatory, and factually untrue arguments made in 2007 against retroactive application of the 2007 crack amendments, he comes very close to calling crack dealers terrorists (even comparing them to the Ku Klux Klan), and that we should think about the innocent communities before releasing these terrorists upon them. Here is a choice excerpt:

"One of the many ironies of the Sixth Circuit’s analysis is its failure to consider that aggressive enforcement of the drug laws, rather than resurrecting the Jim Crow laws of old, would undertake the exact opposite of what southern states did during and after Reconstruction. Then, the southern states sought to leave newly freed blacks with freedom in name only as local governments refused to enforce the criminal laws against villains terrorizing black communities. Now, the source of that terror, ironically, may be other African Americans who rule urban streets through the same violence and threats that blacks witnessed more than a century ago by night riders wearing white hoods."


[!!!!] This kind of talk is really outrageous, and reeks of the false paternalism that got us the 100:1 ratio in the first place. Everyone knows that the severe crack laws swept in thousands upon thousands of low-level people who terrorized and threatened no one. We also know that it is pure propoganda that crack offenders released early under § 3582(c)(2) will wreak havoc in the streets and hold communities hostage. The Commission's own data show that crack offenders who were released after the 2007 amendments were made retroactive, including those in higher criminal history categories or who received enhancements for aggravating factors, had a very low rate of recidivism (a term that includes both new offenses and less serious supervised release violations), and if anything, a lower rate than those who served full terms of imprisonment. See U.S. Sent'g Comm'n, Mem. to Hon. Patti Saris, Chair, from Kim Steven Hunt, Senior Research Associate & Andrew Peterson, Research Associate re: Recidivism Among Offenders with Sentence Modifications Made Pursuant to Retroactive Application of 2007 Crack Cocaine Amendment (May 31, 2011).

On a technical level, Larkin does not even accurately describe Blewett or the Surpreme Court’s decision in Dorsey. He says that the sentences in Blewett were "set aside," which is of course not even close to true. All the panel held was that the Blewetts sentence reduction proceedings under 18 USC 3582(c)(2), by which both were statutorily eligible for a reduction, would not be governed by the old mandatory minimums. In his footnote 40, he flatly states that the Commission did not retroactively lower the Blewetts guideline range, so 3582(c)(2) is an "obstacle." This is also entirely incorrect. Both the Blewetts’ guideline ranges were retroactively lowered (regardless WHICH mandatory minimum applies), so 3582(c)(2) is a proper vehicle. He says in that same footnote that Dorsey “held” that the FSA would not apply to those sentenced before its enactment, but there was no such holding. Dorsey’s statement about “line-drawing” was in reference to original sentencings, and Dorsey otherwise specifically acknowledged that Congress may well intend to re-open some sentences already imposed.

He also posits an array of rational "justifications" for the original 100:1 ratio, none of which have any current support, as well as for denying the benefit of the new law on those already sentenced, none of which represent "legitimate" interests for continuing to deprive the Blewetts of their strong interest in being imprisoned based on a justifiable law in the context of a mechanism specifically designed to re-open sentences.

I cannot understand why you would just uncritically post something so filled with such inflammatory and unfounded hyperbole and significant technical errors regarding the case it pretends to disassemble. Sheesh.

Posted by: a disgusted fpd | Aug 20, 2013 3:59:50 PM

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