Must the Fair Sentencing Act Be Applied Retroactively?

Today a divided panel of the U.S. Court of Appeals for the Sixth Circuit, in United States v. Blewett, held that the Fair Sentencing Act’s modification of mandatory minimum sentences for crack cocaine must be applied retroactively. Judge Merritt, joined by Judge Martin, wrote for the panel. Judge Gilman dissented.

Judge Merritt’s opinion for the court begins:

This is a crack cocaine case brought by two currently incarcerated defendants seeking retroactive relief from racially discriminatory mandatory minimum sentences imposed on them in 2005. The Fair Sentencing Act was passed in August 2010 to “restore fairness to Federal cocaine sentencing” laws that had unfairly impacted blacks for almost 25 years. The Fair Sentencing Act repealed portions of the Anti-Drug Abuse Act of 1986 that instituted a 100-to-1 ratio between crack and powder cocaine, treating one gram of crack as equivalent to 100 grams of powder cocaine for sentencing purposes. The 100-to-1 ratio had long been acknowledged by many in the legal system to be unjustified and adopted without empirical support. The Fair Sentencing Act lowered the ratio to a more lenient 18-to-1 ratio. However, thousands of inmates, most black, languish in prison under the old, discredited ratio because the Fair Sentencing Act was not made explicitly retroactive by Congress.

In this case, we hold, inter alia, that the federal judicial perpetuation of the racially discriminatory mandatory minimum crack sentences for those defendants sentenced under the old crack sentencing law, as the government advocates, would violate the Equal Protection Clause, as incorporated into the Fifth Amendment by the doctrine of Bolling v. Sharpe, 347 U.S. 497 (1954) (Fifth Amendment forbids federal racial discrimination in the same way as the Fourteenth Amendment forbids state racial discrimination). As Professor William J. Stuntz, the late Harvard criminal law professor, has observed, “persistent bias occurred with respect to the contemporary enforcement of drug laws where, in the 1990s and early 2000s, blacks constituted a minority of regular users of crack cocaine but more than 80 percent of crack defendants.” The Collapse of American Criminal Justice 184 (2011). He recommended that we “redress that discrimination” with “the underused concept of ‘equal protection of the laws.’” Id. at 297.

In this opinion, we will set out both the constitutional and statutory reasons the old, racially discriminatory crack sentencing law must now be set aside in favor of the new sentencing law enacted by Congress as the Fair Sentencing Act of 2010. The Act should apply to all defendants, including those sentenced prior to its passage. We therefore reverse the judgment of the district court and remand for resentencing.

Judge Gilman’s dissent begins:

I fear that my panel colleagues have sua sponte set sail into the constitutional sea of equal protection without any legal ballast to keep their analysis afloat. To start with, they “readily acknowledge that no party challenges the constitutionality of denying retroactive application of the Fair Sentencing Act to people who were sentenced under the old regime.” Maj. Op. 6. Opining on this unbriefed and unargued issue is thus fraught with the likelihood of running aground on the shoals of uncharted territory.

They further concede that the law establishing the 100-to-1 ratio between powder cocaine and crack cocaine for sentencing purposes was constitutional when enacted . . . So far, so good. But then the majority veers off into the abyss . . .

The majority reaches [its] conclusion without citing a single case in support. This is not due to a lack of diligent research; it is due to the lack of any such cases. The best the majority can do is try to distinguish two Supreme Court decisions (McCleskey v. Kemp, 481 U.S. 279 (1987), and Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256 (1979)) that even the majority concedes “on first glance might appear to sanction the discrimination at issue here.” Maj. Op. 9. Those efforts at distinguishing McCleskey and Feeney are in vain, however, because binding Sixth Circuit precedent has already foreclosed the majority’s constitutional argument.

Reducing the sentencing disparity between powder and crack cocaine was certainly good policy, whether or not it was constitutionally required. Whatever one thinks of the merits, and the propriety of the court’s decision to reach out for the constitutional question, the issue is certainly cert worthy. And given the Sixth Circuit’s recent record in the Supreme Court, I would think a grant is reasonably likely — unless this opinion were to be overturned en banc.