Federal Appeals Court: Drug Sentencing Disparity Is Intentional Racial ‘Subjucation’

[ProSense]

Federal Appeals Court: Drug Sentencing Disparity Is Intentional Racial ‘Subjucation’

By Nicole Flatow

Since Congress recognized the gaping racial disparity between mandatory minimum sentences for crack offenses and cocaine offenses and reduced the ratio from 100-to-1 to 18-to-1, courts have grappled with when and how to apply the statute to already-decided cases. Last year, the U.S. Supreme Court ruled that the reductions in the Fair Sentencing Act applied to at least those cases decided before the law was passed, but not yet sentenced. But questions remain about whether the statute applies retroactively to tens of thousands of other inmates who might seek reduced sentences.

On Friday, a federal appeals court panel issued a sweeping decision that held the reduced sentencing ratio should apply retroactively to all cases, not just because that was the intent of the 2010 Fair Sentencing Act, but because failure to do so would be unconstitutional. In a powerful statement about the troubling history of drug sentencing, Sixth Circuit Judges Gilbert Merritt and Boyce Martin write:

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 percent of all federal prisoners) serving crack cocaine sentences in 2011. Thousands of these prisoners are incarcerated for life or for 20, 10, or 5 years under mandatory minimum crack cocaine sentences imposed prior to the passage of the Fair Sentencing Act. More than 80 percent 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.

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http://thinkprogress.org/justice/2013/05/18/2032401/federal-appeals-court-drug-sentencing-disparity-is-intentional-racial-subjucation/

Posted this back in 2011.

Justice Is Served

By Laura W. Murphy

June 2011 marks the 40th anniversary of President Richard Nixon's declaration of a "war on drugs" — a war that has cost roughly a trillion dollars, has produced little to no effect on the supply of or demand for drugs in the United States, and has contributed to making America the world's largest incarcerator. Throughout the month, check back daily for posts about the drug war, its victims and what needs to be done to restore fairness and create effective policy.

Today is an exciting day for the ACLU and criminal justice advocates around the country. Following much thought and careful deliberation, the United States Sentencing Commission took another step toward creating fairness in federal sentencing by retroactively applying the new Fair Sentencing Act (FSA) guidelines to individuals sentenced before the law was enacted. This decision will help ensure that over 12,000 people — 85 percent of whom are African-Americans — will have the opportunity to have their sentences for crack cocaine offenses reviewed by a federal judge and possibly reduced.

This decision is particularly important to me because, as director of the ACLU's Washington Legislative Office, I have advocated for Congress and the sentencing commission to reform federal crack cocaine laws for almost 20 years. In 1993, the ACLU lead the coalition that convened the first national symposium highlighting the crack cocaine disparity entitled "The 100 to 1 Ratio: Racial Bias in Cocaine Laws." Now, 25 years after the first crack cocaine law was enacted in the 1986 Anti-Drug Abuse Act, the sentencing commission has taken another step toward ending the racial and sentencing disparities that continue to exist in our criminal justice system.

By voting in favor of retroactivity, I am pleased that the commission chose justice over demagoguery and concluded that retroactivity was necessary to ensuring that the goals of the FSA were fully realized. It is important to remember that even with today's commission vote not every crack cocaine offender will have his or her sentence reduced. Judges are still required to determine whether a person qualifies for a retroactive reduction so, contrary to what some have said, this is not a "get out of jail free card."

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http://www.aclu.org/blog/criminal-law-reform/justice-served

Chance at Freedom: Retroactive Crack Sentence Reductions For Up to 12,000 May Begin Today
http://www.aclu.org/blog/criminal-law-reform/chance-freedom-retroactive-crack-sentence-reductions-12000-may-begin-today

[Comrade Grumpy]

1. The Obama administration deserves credit for supporting the Fair Sentencing Act.

Now, if they would only eliminate the crack/powder cocaine sentencing disparity instead of just reducing it. They did take it down from 100:1 to 18:1, but there is no scientific basis for even that disparity.

And, as the judges noted, it is racist in its implementation, if not in its intent (and that's arguable).

[ProSense]

3. Agree. n/t

[malaise]

2. This is huge

Rec

[ProSense]

4. Yup! n/t

[LeftInTX]

5. Kick!!

[ProSense]

6. Kick! n/t