Inmates make phone calls from their cell at the Orange County jail in Santa Ana, California, May 24, 2011.
Lucy Nicholson/Reuters

Time to free those who’ve been jailed too long

Updated
By Mark Osler

No one in this country should be required to serve a prison sentence that is unfair, arbitrary, or racially discriminatory.  This week, the United States Court of Appeals for the Sixth Circuit, which covers Ohio, Michigan, Tennessee, and Kentucky, will have the opportunity to affirm this fundamental principle of fairness and justice.  In U.S. v. Blewett, the full court will decide whether the Fair Sentencing Act (FSA)–which reduced the federal government’s notorious 100:1 sentencing ratio for crack and powder cocaine to an 18:1 ratio–should apply to all offenders, regardless of their date of sentence. The court’s decision should be an easy one:  the FSA must be applied equally to everyone, including the thousands who were sentenced before the FSA was enacted.

I know very well how those men and women received such long sentences, because I put some of them there.  From 1995-2000, I served as an Assistant United States Attorney in the Eastern District of Michigan.  From my office in downtown Detroit, I worked on dozens of low-level crack cases where the 100:1 ratio applied.  At the time, I believed it was solving a problem.  I was wrong.  The use of that law disproportionately led to long sentences for African-Americans, while the flow of narcotics into the city continued.  We were sweeping up low wage labor and incapacitating them for decades, in an economy where low-wage labor was abundant.  No wonder it didn’t work–it was the functional equivalent of thinking you can shut down Wal-Mart by locking up the greeter.  The price of that mistake is now being paid by those who were over-sentenced under the now-rejected 100:1 ratio.

The racial effect of this pernicious law was stark. While only one-third of crack users were black, 82% of those convicted of crack offenses in federal court were black.  Conversely, whites made up more than half the users, but only 10% of the defendants.  In the end, this law had a devastating effect on some black communities without really curtailing the availability of crack.  It is time to right that wrong.

In 2010, Congress passed the FSA which reduced the federal disparity in sentencing between crack and powder cocaine from 100:1 to 18:1.  By that time, every branch of government had recognized that there was no pharmacological justification for distinguishing between the two forms of cocaine, and that African-Americans were unfairly and disproportionately prosecuted and imprisoned under the 100:1 sentencing regime.  I applauded this change in the law because I believed it would bring much needed integrity, fairness, and equity back to federal drug sentencing.

Unfortunately, today there are thousands of people–the vast majority of whom are African-American–still in prison serving excessive sentences based on the discredited 100:1 sentencing disparity.  They are there simply because they were sentenced before the FSA was enacted.  Earlier this year, a majority panel of the Sixth Circuit concluded that it was unconstitutional to allow some offenders to continue to serve extremely long sentences based on the 100:1 calculation, while allowing other offenders–who have committed identical crimes–to receive significantly shorter sentences based on the 18:1 sentencing calculation.  The panel was right, and the injustice at issue in this case could not be plainer.  Thousands of Americans remain in prison, at great cost, when they would be free if sentenced under the law now in effect.  Continuing to incarcerate them violates the sense of basic fairness that distinguishes and ennobles American law at its best.

The full Sixth Circuit should uphold the panel majority’s opinion.  It should seize this opportunity to make clear that the egregious 100:1 sentencing disparity has no place in our criminal justice system.  As explained by the NAACP Legal Defense & Educational Fund, Inc. and the Federal Defenders in their briefs, everyone who remains imprisoned under that unfair sentencing structure should have the opportunity to apply for a sentence reduction and receive a fair sentence for their crimes.  Justice demands nothing less.

Time to free those who've been jailed too long

Updated