On Friday, Jonathan pointed out United States v. Blewett, the new Sixth Circuit decision on the 100-1 crack-cocaine sentencing disparity. Jonathan described the issue in that case as being whether the 2010 Fair Sentencing Act applied retroactively. But the most remarkable part of Blewett actually decides a different question that was neither briefed nor argued: Whether the 100-1 disparity in effect before 2010 was constitutional. And the majority’s argument for why the 100-1 disparity was unconstitutional strikes me as not just wrong but obviously so.
According to the majority opinion signed by Judges Merritt and joined by Judge Martin, the Equal Protection Clause requires judges to disregard bodies of law that have known racially discriminatory effects. That’s the case because applying law that has a known discriminatory impact would be an intentional act of discrimination by judges that the Equal Protection clause forbids. Here’s the key part of the opinion:
In view of the statistical facts and the widespread congressional consensus leading to the adoption of the Fair Sentencing Act’s remedial provisions [replacing the 100-1 ratio in 2010 with an 18-1 ratio], there can be no doubt that the old crack law was racially discriminatory in effect. As a matter of legal doctrine, there is no equal protection violation without discriminatory intent. See Washington v. Davis, 426 U.S. 229 (1976). When the old 100-to-1 crack cocaine statute was adopted, it presumably did not violate the Equal Protection Clause because there was no intent or design to discriminate on a racial basis. Its adoption was simply a mistake. Since 1986, however, we have gained knowledge of the old statute’s devastating effect on blacks. Congress itself acknowledged this problem by enacting the Fair Sentencing Act.
The Fair Sentencing Act was a step forward, but it did not finish the job. The racial discrimination continues by virtue of a web of statutes, sentencing guidelines, and court cases that maintain the harsh provisions for those defendants sentenced before the Fair Sentencing Act. 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. 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.
As I understand the reasoning, Judges Merritt and Martin work around the requirement of invidious purpose to discriminate by saying that judicial application of laws with known discriminatory effect forces the judges to have invidious purpose to discriminate when they apply the law. In other words, discriminatory effect plus awareness of it amounts to intentional discrimination in the act of applying the law. And the need to avoid discrimination not only trumps the law but also trumps binding precedents saying that the law is constitutional. The argument doesn’t work on its face, as a judge who applies binding law that may have a discriminatory effect does so not because she wants to achieve a discriminatory result but because that result is what the controlling law requires. But in any event, Judge Gilman’s dissent nicely points out the binding precedent to the contrary. The majority doesn’t even bother with much of a response to Judge Gilman’s dissent: See Footnote 6, which for the most part doesn’t even track forms of legal argument.
I agree that the 100-1 disparity was terrible policy. But the majority’s constitutional analysis strikes me as not just wrong but obviously so.