Some Good News on Crack, and a Call for the Government to Come Through on Its Rhetoric About Fairness and Injustice

May 21, 2013
By Hanging Out with Carl Gunn



  • The Sixth Circuit just created a split in the circuits on the issue of whether the new crack mandatory minimums apply retroactively in sentence reduction proceedings under 18 U.S.C. § 3582(c)(2).
  • The Department of Justice has agreed that the old crack law was unjust, had a disturbing disparate racial impact, and undermined confidence in the criminal justice system, so why is it trying to preserve old sentences based on that old law?
  • Don’t give up; on retroactivity in original sentencings the Supreme Court stepped in and even the Department of Justice changed its position.



Some of you who know me know that I – and Deputy Federal Public Defender Davina Chen in this district, and many others in other districts – have been tilting at windmills in cases seeking reductions of crack sentences under 18 U.S.C. § 3582(c)(2). The fight is about whether the new Fair Sentencing Act mandatory minimums that Dorsey v. United States, 132 S. Ct. 2321 (2012) made retroactive in original sentencing proceedings also apply retroactively in sentence reduction proceedings based on 18 U.S.C. § 3582(c)(2). All of the circuits had been holding against us – including the Ninth Circuit in United States v. Augustine, 712 F.3d 1290 (9th Cir. 2013) – until last week. On Friday, the Sixth Circuit – in United States v. Blewett, No. 12-5226, 2013 WL 2121945 (6th Cir. May 17, 2013) – departed from the other circuits’ opinions – which in many instances are unpublished and/or decided on pro se briefing – and held that the new mandatory minimums apply retroactively in § 3582(c)(2) proceedings just like they do in original sentencings. The opinion offers both legal statutory analysis and a stirring discussion of the constitutional concerns raised by the outrageous disparate racial impact of the old 100-to-1 crack/powder ratio that we, judges, the Sentencing Commission, and just about everyone else in the criminal justice system have long (or at least finally) recognized.

The arguments and legal analysis are laid out in the Sixth Circuit opinion attached here and the opening brief in United States v. Augustine, attached here, but I write this post to pose some other thoughts and questions. What about the government walking the walk in addition to talking the talk? In actively supporting the Fair Sentencing Act, the Assistant Attorney General in charge of the Department of Justice’s Criminal Division, Lanny Breuer – in his written statement provided in conjunction with testimony he gave to the Senate Judiciary Committee Subcommittee on Crime and Drugs, which is attached here – offered the following:

Ensuring fairness in the criminal justice system is also critically important. Public trust and confidence are essential elements of an effective criminal justice system – our laws and their enforcement must not only be fair, but they must also be perceived as fair. The perception of unfairness undermines governmental authority in the criminal justice process. It leads victims and witnesses of crime to think twice before cooperating with law enforcement, tempts jurors to ignore the law and facts when judging a criminal case, and draws the public into questioning the motives of government officials.

. . .

There is no better place to start our work than with a thorough examination of federal cocaine sentencing policy.

Statement of Lanny A. Breuer, at 1-2. Assistant Attorney General Breuer then went on to explain how and why the crack cocaine laws are perceived as unfair and unjust.

[W]e cannot ignore the mounting evidence that the current cocaine sentencing disparity is difficult to justify based on the facts and science, including evidence that crack is not an inherently more addictive substance than powder cocaine. We know of no other controlled substance where the penalty structure differs so dramatically because of the drug’s form.

Moreover, the Sentencing Commission has documented that the quantity-based cocaine sentencing scheme often punishes low-level crack offenders far more harshly than similarly situated powder cocaine offenders. Additionally, Sentencing Commission data confirms that in 2006, 82 percent of individuals convicted of federal crack cocaine offenses were African American, while just 9 percent were White. In the same year, federal powder cocaine offenders were 14 percent White, 27 percent African American, and 58 percent Hispanic. The impact of these laws has fueled the belief across the country that federal cocaine laws are unjust.

Statement of Lanny A. Breuer, at 9.

So the Department of Justice agrees that the old crack laws are unjust. It agrees they have a disturbing disparate racial impact. It agrees this undermines the public’s confidence in our criminal justice system. Why in the world, then, would the government, why does the government, want to perpetuate this injustice and perpetuate this disparate racial impact by opposing retroactivity in 18 U.S.C. § 3582(c)(2) motions? How does it give the public confidence for the government to be saying out of one side of its mouth that sentences are unfair and then arguing out of the other side of its mouth to preserve those same unfair sentences?

The government did finally come around on the issue in Dorseywhen two courts of appeals spoke up and the issue went to the Supreme Court – by agreeing with the defense in the Supreme Court and affirmatively arguing for retroactivity in original sentencings. See Dorsey, 132 S. Ct. at 2330. It should do the same here. It was a travesty of justice to apply the old crack laws in the past, it would have been even more of a travesty to continue applying them after Congress had recognized they were a travesty, and it is equally a travesty to perpetuate the travesty by seeking to preserve sentences under the old, unjust crack law. The government can and should change its position here just as it could and did change its position in Dorsey.