A decision allowing parts of the Fair Sentencing Act to apply retroactively, affecting thousands of federal inmates sentenced for crack cocaine crimes, was vacated earlier this month and ordered for review by the 6th U.S. Circuit Court of Appeals in Cincinnati.
In United States v. Blewett, a panel of judges on the 6th Circuit — which has jurisdiction over Tennessee, Kentucky, Michigan and Ohio — ruled in May that for constitutional reasons, the Fair Sentencing Act “should apply to all defendants, including those sentenced prior to its passage.”
The Fair Sentencing Act was enacted in 2010 as a response to what many consider racially biased sentencing guidelines for crack cocaine versus powder cocaine crimes. In the Blewett judgment, the panel described the act as restoring fairness “to federal cocaine sentencing laws that had unfairly impacted blacks for almost 25 years.”
Crack cocaine guidelines were first set by Congress in 1986 with the Anti-Drug Abuse Act, which established the first mandatory sentence minimums with a sharp crack-to-powder ratio — 5 grams of crack cocaine was treated as harshly as 500 grams of powder cocaine.
Cornelius Blewett and Jarreous Blewitt, related despite the spellings of their surnames, were convicted of conspiring to distribute more than 50 grams of crack cocaine and sentenced in 2005 to the mandatory minimum sentence of 10 years.
On first appeal, the district court denied the men a post-Fair Sentencing Act sentence reduction because the act contains no specific mention of retroactivity.
However, the Court of Appeals ruled that due to the racial bias in the obsolete crack cocaine sentencing laws, the two men’s outdated sentence violated the U.S. Constitution’s equal protection clause in the Fifth Amendment.
The retroactivity would then have applied to all federal prisoners serving a pre-2010 mandatory minimum sentence for crack cocaine in the 6th Circuit.
But late May, the United States petitioned for a rehearing, and on July 11, the Court of Appeals vacated the judgment and ordered a full review.
The conflict is in differing opinions on the retroactivity of sentencing guidelines versus mandatory minimum sentences.
Sentencing guidelines create an incarceration range based on case facts, while mandatory minimum sentences are bound by federal law. Sentencing guidelines are more flexible, while mandatory minimums can vary only in certain circumstances.
The Fair Sentencing Act of 2010 increased the amount of crack cocaine necessary to merit the 10-year mandatory minimum sentence, and it also affected the sentencing guideline criteria.
In 2011, the United States Sentencing Commission unanimously voted to retroactively apply the sentencing guidelines, which opened up more than 11,000 cases for review.
By April 2013, 26 inmates had petitioned the U.S. District Court for the Middle District of Tennessee for a sentence review in light of the amendment — all 26 petitions were granted.
But the retroactivity amendment did not apply to mandatory minimums, and in the petition for rehearing the Blewett case, the government said there was no evidence that Congress had intended for the Fair Sentencing Act to affect them.
According to the “Fair Sentencing Clarification Act of 2013” proposed by Rep. Robert Scott of Virginia in June, if the statutory changes in the Fair Sentencing Act were also made retroactive, 20,905 offenders would be eligible for sentence reductions, saving more that $2.2 billion.
“Thousands of inmates, mostly black, languish in prison under the old, discredited ratio,” read the Blewett judgment in favor of full retroactivity. “Like slavery and Jim Crow laws, the intentional maintenance of discriminatory sentences is a denial of equal protection.”
Because the Anti-Drug Abuse Act affected communities of color in broad, incarcerating sweeps — the American Civil Liberties Union reported that black individuals served the same amount of time in prison for nonviolent offenses as whites did for violent crimes — popular opinion in the late 1990s and early 2000s considered the law draconian at best and blatantly racist at worst.
Slowly, judges and district courts were given more discretion when it came to sentencing crack cocaine offenders.
In 2005, United States v. Booker allowed judges to view sentencing guidelines as just that — nonbinding, guiding suggestions, and the Supreme Court ruled in 2007 that district courts could conclude the crack-to-powder disparity yielded a greater sentence than necessary for a particular defendant’s crimes.
In 2009, the Supreme Court determined in United States v. Spears that district courts had the “authority to vary from the crack cocaine guidelines based on a policy disagreement with them.”
But regardless of varying from the guidelines, a defendant cannot be sentenced below the federal mandatory minimum for his or her crimes — and in 2009, those minimums were still perched at an 100-to-1 ratio for crack cocaine.
As the Fair Sentencing Act passed the U.S. Senate in March 2010, co-author Sen. Patrick Leahy (D-Vermont) offered several reasons for the bill’s necessity, including a faltering lack of trust in law enforcement due to the perceived slant against people of color.
There was little or no pharmacological distinction between crack and powder cocaine that prompted the radical upswing of consequence, Leahy said.
“[The Fair Sentencing Act] reduces the disparities that leave some in jail for years while their more privileged counterparts go home after relatively brief sentences,” Leahy said. “We are one step closer to fixing this decades-old injustice.”
President Barack Obama signed the bill into law in August 2010, reducing the sentencing ratio to 18-to-1, mandating a 10-year minimum sentence for trafficking 280 grams of crack cocaine — instead of 50 grams — or 5 kilograms of powder cocaine.
However, many believe the Fair Sentencing Act did not go far enough — including Nashville Criminal Justice Act panel attorney David Komisar.
Komisar’s client, Brian Vance, pleaded guilty in June to conspiring to distribute crack cocaine and powder cocaine in amounts that mandated the minimum sentence of 10 years.
In addition to the 10 years, Vance faces a sentencing guideline to be determined by the facts of his case. Komisar is arguing that the guideline ought to be determined using a 1-to-1 crack to powder ratio — or as if he had been dealing powder only — as a matter of policy, per United States v. Spears.
If Vance is sentenced for powder cocaine only, Komisar estimates his sentencing guideline as nine to 11 years, bumped up by one year because U.S. District Judge Kevin Sharp is bound by the mandatory minimum sentence. But if he is sentenced under the 18-to-1 ratio, his guideline range more than doubles.
“For far too long, the government has swung the harsh disparate punishment for crack cocaine like a bat, hitting mostly African-Americans,” Komisar wrote. The Fair Sentencing Act does not end the bias, he said. “It just means the government is swinging with a lighter bat.”
The government is expected to respond to Komisar’s argument, and Vance’s sentencing is scheduled for Aug. 30.
The United States v. Blewett case remains pending appeal, awaiting review by the court. The government has argued that holding inmates to their previously calculated mandatory minimum sentences is not racial discrimination due to intent.
An unintended discriminatory consequence, the government argued, is not a violation of the Constitution. Only a decision made with the specific intent to adversely affect a group is a violation of the Fifth Amendment.
Komisar expects that argument will hold up in the 6th Circuit and that it will be difficult for Blewett’s advocates to demonstrate an intended racial bias.
“But you can’t close your eyes to statistical analysis, to how this law has been applied,” Komisar said. “Everybody knows there’s a