Blew What?

Chas Rutledge

In 2005 a federal judge was forced to treat one gram of crack as 100 grams of cocaine and sentence two African-American cousins to ten years, the shortest period allowed under the Anti-Drug Abuse Act of 1986. In part because the 100-to-1 ratio had unfairly impacted African-Americans for 25 years,FN1 the Fair Sentencing Act of 2010 lowered it to a more lenient 18-to-1,FN2 meaning that the Blewetts would not be subject to any mandatory minimum if sentenced today. The Blewetts appealed, prompting a shaky, Aaron Craft-likeFN3 blocking response from the government, who demands that neither the Blewetts nor anyone else sentenced under statutory minimums benefit from a new law that is not explicitly retroactive.FN4

The court ended up giving the Blewett cousins the same rights as anyone caught with crack today, for which The Volokh Conspiracy pronounced! “The Sixth Circuit Really Blewett.”FN5 True, the 2-to-1 majority barely wiggled out of a tricky equal protection argumentFN6 that was not even raised by either party. But the court was just trying to show that the retroactive effect given to the Sentencing Commission’s “guideline rangesFN7 had to incorporate statutory minimums—in other words, that Congress did not intend to violate the ConstitutionFN8—or leave 17,000 crack prisoners serving unfair sentences.FN9 While the argument clearly has flaws, the court’s objective is too worthy to criticize.

Of course, Judge Gilman’s dissent concludes that the reference to “guideline ranges” has no effect on statutory minimums. He reminds us about the uncertain nature of equal protection and points out that the issue of the old ratio and equal protection has already been decided.FN10 But, while the dissent blames Congress for any injustice, the majority tries at first not to point fingers: “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.”FN11

First of all, I’m not sure that a court really “perpetuates” anything by not raising its own issues or arguments.FN12 That’s like saying that the referee of a basketball game perpetuates unfairness by calling a charge without being absolutely sure that the defender’s feet were set. A call has to be made—block or charge—those are the rules—was the foot still or not. And what if you couldn’t even see the defender’s feet? You have to go by something, don’t you. Well, some of us, even if unconsciously and immeasurably, favor the offense or defense, some of us favor certain teams, some favor certain players, some just favor fairness, and others plain technicality, even if we all like to claim we favor nothing at all.FN13

Whatever we refs favor, we would never favor anything unless the call is unmistakably neck and neck, right?FN14 And what about when a new block-charge rule makes defense a little bit harder.FN15 Say the rule was designed to maximize entertainment, and the rule-makers have come straight out to say that they favor offense, something you’re still technically prohibited from doing. And say that you, a referee who applies the new rule extensively and deals directly with its implications, know that the rule was not intended to further punish a team who’s been having bad, unfair nights all season long—no, say throughout the existence of the league.

And, lastly, say that you’re watching that team’s player almost get his first career basket, when a kid like Aaron CraftFN16blindly lunges expecting to provoke his tenth charge of the night. What do you do if you didn’t see his feet and had to make a call?

Me, I’d the call the foul. Even if I caught his foot flat on the ground, at that moment, all I need is the swing of a shoestring.FN17Sports are always better when the underdog has a chance, and sometimes we just get too fed up with technicalities. I mean, consistency is never entertaining and truly rather rare.

So for a chance at achieving the rule’s primary purpose, the ref is usually blamed. Had the player’s “upward motion” really started, some might ask. Were both of the defender’s feet actually planted? Must there be a defender at all? And what happens next play when Aaron Craft, expecting the same call, bulldozes over a pretty steady block for his eleventh dunk of the night.FN18 The referee’s pride, we hope, is worth more than one player’s missed free throw. After all, it’s the referee’s job to focus on technical consistency.

Yet because and in spite of the rulebook’s consistency, the game can’t always be fair and entertaining, especially with newer, less consistent, untested technicalities. In fact, to some extent we all favor consistency over entertainment or even fairness, which is why we can’t give the ref too much power, for fear of it being abused.FN19 Exceptions, extensions, and additions to the rulebook can only be written so fast, so we deal with it and force the ref to follow the technical rules as they stand, teasing the ref to blame the rule-makers when the players are no less responsible.FN20

I thought the responsible player here was supposed to be the federal government, whose attorneys have enormous prosecutorial discretion. Famous for their high conviction rate, they get so many slam-dunks that they rarely shoot too far from layup-range. But when the team’s only goal is to score points, all principles of fairness conveniently relegate to terribly inefficient rule-makers.

In the meantime, fairness just depends on what play you can make, or what question you can ask. Can you ever favor fairness over consistency? As the court phrased it, “The question remaining is: how retroactive is the new law?” In other words, does Congress limit discrimination to its own legislation, just rectifying the discrimination that judges were guided to engage in, or is Congress truly not racist? Or, is it an abuse of power to go with Congress really not being racist, when it just enacted a new rule for fairness and equality, which on its own daringly downplays consistency.FN21

In this league, that all depends on the quality of the video replay.FN22 Just as in basketball, our judicial referees are confined by technical rules, because we favor consistency over fairness, expecting fairness to eventually win out when our elected representatives finally get their act together.FN23 But, while the language in Blewett is mildly entertaining, the players here aren’t tossing around pumpkins for fun; they’re praying for equality to a high-level court of justice. Here, your opponent’s failure to play fair doesn’t earn him an unjust place at the free-throw line; it earns you an unjust place in prison. And there’s an 80% chance it’s because of your race.

Final briefing for the en banc review will be concluded on August 29, 2013, and arguments are scheduled for October 9, 2013, 1:30 P.M., EST.”FN24 In the short term, consistency usually wins: If not the en banc panel, the Supreme Court will overturn this decision. Eventually, Congress might have time to make the law expressively retroactive. But good calls are never noticed; maybe Judges Merritt and Martin were merely hoping to stir a discussion and speed up the process. Either way, as far as blowing, Volokh, if anybody blew this one it was you or the prosecutor.

FN1. The racially discriminatory impact of the 100:1 sentencing scheme surfaced early on when statistics showed that nearly one hundred percent of all crack defendants were non-white. See United States Sent’g Comm’n, 2011 Sourcebook of Federal Sentencing Statistics tbl.34 (94% nonwhite); LaJuana Davis, Rock, Powder, Sentencing—Making Disparate Impact Evidence Relevant in Crack Cocaine Sentencing, 14 J. Gender Race & Just. 375, 386-88 & n.68 (2011). From 1988 to 1995, federal prosecutors prosecuted no whites under the crack provisions in 17 states, including major cities such as Boston, Denver, Chicago, Miami, Dallas, and Los Angeles. Dan Weikel, War on Crack Targets Minorities over Whites, L.A. Times, May 21, 1995, 4468_1_crack-cocaine.

FN2. 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. United States Sent’g Comm’n, 2010 Sourcebook of Federal Sentencing Statistics tbl.43. As the dissent points out, there may be no constitutional distinction between a 100-to-1 ratio and an 18-to-1 ratio. Yes, even the new ratio of 18-to-1 permits disparity: There were approximately 30,000 federal prisoners (about 15 percent of all federal prisoners) serving crack cocaine sentences in 2011,[ii] and more than 80 percent[ii] of federal prisoners serving crack cocaine sentences are black.


FN4. The government also occasionally and famously tries to violate the ex post facto prohibition by applying harsher new sentences retroactively—whether explicit or not.

FN5. Orin Kerr,

FN6. 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).The trick is that Congress only “violates” equal protection when it does so intentionally. See Washington v. Davis, 426 U.S. 229 (1976). Detailed, statistical proof of racial discrimination is sometimes not even enough; the harm must be “maintained . . . because of an anticipated racially discriminatory effect.” McCleskey, 481 U.S. at 298. The government essentially contends that this discrimination was maintained to respect “finality interests in already-sentenced cases.” Like myself, the court did not find that interest the least bit compelling and felt that the proof here “supports an inference that the old crack laws have been maintained at least in part because of their discriminatory effects.” The court also distinguished this case from precedent in that “the defendant’s independent characteristics do not factor into the equation, and the decisionmaker’s choice is a discretionless mandatory minimum.” First of all, I’m all for making up useful words, but the opposite of discretionary is nondiscretionary, or “mandatory,” as in mandatory minimum.

And Feeney held that the decision-maker must select or reaffirm “a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” Feeney, 442 U.S. at 279. But, according to the majority, Feeney makes it clear that racial discrimination, “regardless of purported motivation, is presumptively invalid and can be upheld only upon an extraordinary justification.”

FN7. 18 U.S.C. 3582(c)(2). The sentencing guidelines are promulgated by the Sentencing Commission, part of the Judicial Branch.

FN8. Of course, the dissent argues that this is not susceptible to more than one construction because the court already decided it was not retroactive in this way inWilliams.

FN9. United States Sent’g Comm’n, Analysis of the Impact of Guideline Implementation of the Fair Sentencing Act of 2010 if the Amendment Were Applied Retroactively, at 12 (May 2011).

FN10. United States v. Williams, 962 F.2d 1218, 1227 (6th Cir.), cert. denied, 506 U.S. 892 (1992) (holding that “the one to one hundred ratio of crack to cocaine does not violate Equal Protection Standards.”)

FN11. Blewett (emphasis added)

FN12. The majority provides that the Supreme Court has invalidated the judicial perpetuation of racial discrimination through the failure of courts to allow custody awards of white children to mixed-race parents. See Palmore v. Sidoti, 466 U.S. 429, 433 (1984) (“The Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”).

FN13. Me, I like to think I’d go for the player that truly believes he has time to set his feet, and against the player that always lunges for the charge thinking “what’s the worst that can happen, this guy makes both free throws?” We all, in some way, at least try to favor fairness, right? Of course, there are many factors involved—the player’s objective, the team’s objective, the organization’s objective—so I’m not necessarily talking here about Aaron Craft’s latest moment of fame and shame against Illinois last March. That game was huge, the tournament was at stake, and fouls aren’t nearly as important with a few seconds on the clock. But here, is this case bigger to the government than any others? If so, it’s only in terms of racial discrimination: the worst part for the government is that “the effect of the decision will be widespread if it is allowed to stand.”

FN14. See Tim Donaghy.

FN15. “Under the revised block/charge call in men’s basketball, a defensive player is not permitted to move into the path of an offensive player once he has started his upward motion with the ball to attempt a field goal or pass,” according to the new rule. “If the defensive player is not in legal guarding position by this time, it is a blocking foul. Previously, a defender had to be in legal guarding position when the offensive player lifted off the floor.”…

FN16. This is a hypothetical. Made clear so that Aaron will not try to sue me. No time for that.

FN17. The court grabbed this shoestring by the horns:

Like passing a foreign ship at night with an “ahoy,” our dissenting colleague starts with a poetic metaphor about “setting sail . . . without any legal ballast.” The dissent then refuses to acknowledge, come to grips with or rebut the equal protection argument in this case. . . . A dissent that refuses to acknowledge the main problem in a case and then relies primarily on a case that does not mention the problem is not responsive or relevant. In order to be responsive, disagreement at least requires a discussion about why we should continue to hold thousands of people in jail who are there because of a law that is acknowledged to be racially discriminatory by a majority of the Supreme Court and by the vote of a large majority of the Congress of the United States. Congress does not often acknowledge that it passed a racially discriminatory law and then try to redress its own prior mistake. To be relevant, a dissent must at least try to deal with that issue.

FN18. Call the foul and the replay is immediately compared to the last call. Take, in the case of federal judges for instance, the ex post facto prohibition against retroactive applications of a harsher new sentence.

FN19. See Tim Donaghy.

FN20. Think of the government as Bruce Pearl blaming the refs or his Division II opponent for his starters running up 150 points. That’s how I feel when the Blewettmajority blames the dissenter, and the dissenter blames—Congress, who else? How does the third and arguably most powerful branch of government consistently escape blame. More candidly, the majority could have proposed that race must play a role in the government’s failure to retroactively apply the Fair Sentencing Act, and that, to be relevant, a prosecutor must at least try to deal with that issue.

To be clear, I don’t think the prosecutors here are racist and I don’t think the court intended any such implication. But I do think that prosecutors are sometimes too focused on their never-ending quest to sellout jails. They are uniquely empowered to factor out legal technicalities in favor of fairness. Yet, more often it seems, they take ambiguity as opportunity to undermine the clear purpose of a legislative decision like the Fair Sentencing Act of 2010. As the court explained, that’s apparently just how it works: “the prosecutor will charge based on an objectively verifiable quantity of crack, and the court will impose a sentence no lower than that mandated by Congress.”

FN21. Like when “upward motion” replaces “when the player lifted off the floor.”

FN22. The court remarks:

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.

FN23. The dissent points out that slow-moving Congress is free to change the law, as if the majority attempted to forbid it. While the government seems technically correct, there are reasonable arguments for both sides, so why not go with the one that’s fair—whether it’s permanent, temporary, or ineffectual. Of course, maybe I’m just not cut out to be a judge or a referee. Either way, two people so far appear to feel the same way, despite their opinion being vacated when the government’s request for review was granted.

FN24. They are also asking whether the sentences amount to cruel and unusual punishment. Also, does the court not participate in daylight savings time (EDT)? EST doesn’t start until November 3, 2013; do you think they were just assuming we would understand what they meant, like maybe Congress was with the Fair Sentencing Act?.