Monday, August 19, 2013
Paul J. Larkin Jr. (The Heritage Foundation) has posted Crack Cocaine, Congressional Inaction, and Equal Protection (Harvard Journal of Law and Public Policy, Vol. 37, 2013) on SSRN. Here is the abstract:
For decades, scholars and courts have debated whether the Anti-Drug Abuse Act of 1986 discriminates against African Americans by imposing far stiffer punishments for trafficking in crack cocaine than in its powdered form. The academy has generally concluded that the federal crack cocaine sentencing laws are racially discriminatory, while the federal courts have almost uniformly rejected the same argument. Three years ago Congress, via the Fair Sentencing Act of 2010, addressed the issue by reducing, without eliminating, the sentencing disparity. Recently, the U.S. Court of Appeals for the Sixth Circuit in United States v. Blewett, 719 F.3d 482 (6th Cir. 2013), concluded that the 2010 statute would be unconstitutional if it were not applied retroactively. The Blewett case forces this debate back into the political arena.
The Sixth Circuit misapplied equal protection law. Rather than ask whether Congress refused to apply the Fair Sentencing Act retroactively for a discriminatory purpose, the court concluded that Congress’s decision to adopt a prospective-only statute was tantamount to readoption of Jim Crow. Settled law, however, requires proof of discriminatory intent. Moreover, Congress’s refusal to adopt retroactive legislation cannot violate the Due Process Clause. The clause applies only to positive law, so Congress cannot violate the clause by not enacting legislation. Finally, the Sixth Circuit failed to consider the effect of strict enforcement of the drug laws on the innocent residents of communities where crack trafficking occurs. It may be unwise to continue to imprison crack offenders for the full length of their prison terms imposed under the strict provisions of a now-amended law, but a mistaken decision is not invariably an unconstitutional one.