Two weeks ago, a flicker of hope circulated among federal prisoners serving lengthy crack cocaine sentences. A 6th Circuit appeals court ruled that the Fair Sentencing Act (FSA), a law passed by Congress in 2010 to reduce the disparity between crack and powder cocaine sentences, should be applied retroactively. Unfortunately -- although not unexpectedly -- the Department of Justice extinguished that small flame last Friday when it appealed the court's decision.
This case is significant because even if the legal argument is weak, the moral argument is strong. The court tried to correct the serious injustice Congress created when it failed to make the crack sentencing reforms of 2010 retroactive.
A brief history is in order. In 1986, Congress reacted hastily to reports of a "crack epidemic" by instituting 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. There was absolutely no empirical support for the enormous disparity. In fact, the Reagan administration proposed only a slight distinction in penalties because of concerns about crack-related violence, but as its point man in Congress, Representative Dan Lungren (R-CA), admitted, "We initially came out of committee with a 20-to-1 ratio. By the time we finished on the floor, it was 100-to-1. We didn't really have an evidentiary basis for it, but that's what we did, thinking we were doing the right thing at the time."
It soon became clear that they had not done the right thing. Almost immediately, the excessive mandatory minimum sentences for crack possession and use sent thousands of low-level offenders to prison for five-year, 10-year, and even life terms. These sentences did not affect all neighborhoods equally. While black people constituted a minority of regular crack users in the 1990s and early 2000s, they made up more than 80 percent of crack defendants.
To its great credit, Congress voted to correct its mistake in 2010. With broad bipartisan support, Congress approved the Fair Sentencing Act, which reduced crack sentences. The 100-to-1 disparity was reduced to 18-to-1, close to the Reagan administration's original proposal. The FSA did not explicitly apply to those already serving time and so it has been interpreted, like other criminal sentencing laws, to apply only prospectively -- to those sentenced after President Obama signed it into law on August 3, 2010.
Last month, a divided panel of the 6th Circuit Court of Appeals ruled that failing to apply the FSA retroactively violates the Constitution's guarantee of equal protection of the laws. While conceding that Congress had no discriminatory intent when it passed the original crack sentencing scheme, the majority said that the court could not close its eyes to the actual impact. For example, the court noted that from 1988 to 1995, federal attorneys did not prosecute even one white individual for crack-related crimes in 17 states, including major cities such as Boston, Denver, Chicago, Miami, Dallas, and Los Angeles. "If we continue now with a construction of the statute that perpetuates the discrimination," Judge Gilbert Merritt wrote, "there is no longer any defense that the discrimination is unintentional."
In ruling that the FSA should apply retroactively, Judge Merritt wrote that "new knowledge" about the old law's discriminatory impact must overtake the "judicial instinct to avoid change and maintain the status quo." Legal commentators may criticize this as judicial activism, but that misses what is truly important: thousands of Americans are serving sentences in federal prisons based on an erroneous assumption about public safety that Congress has now explicitly and overwhelmingly repudiated.
These individuals are not victims. They committed crimes and earned their punishment. But they also should not be treated like guinea pigs in a criminal justice experiment gone awry. Their unjustifiably long sentences are what convinced Congress that its original crack sentencing law scheme needed an overhaul. It is obscene to deny them relief simply because they made their mistakes before Congress recognized its own.
Applying the FSA retroactively would not undermine public safety. Indeed, by passing the FSA, Congress made clear its view that shorter, fairer crack sentences are compatible with public safety. No law enforcement rationale for making past offenders serve their full sentences remains.
In the end, the 6th Circuit's decision is almost beside the point. Even if it were upheld, it would only correct the sentences of crack offenders within the four states that make up the circuit: Kentucky, Michigan, Ohio, and Tennessee. Members of Congress should act to fix the law so that all receive equal treatment -- not because our Constitution requires it, but because their consciences do.