Daily Independent (Ashland, KY)

May 23, 2013

Resentencing

Old crack cocaine offenders merit new terms under law


The Independent

ASHLAND — The U.S. District Court of Appeals has rightly ruled that even those sentenced for crack cocaine violations before the approval of a 2010 law that restored a bit of sanity and fairness to federal sentencing laws can be resentenced under the 2010 law.

The decision to expand the Fair Sentencing Act to people whose cases played out before the law’s passage potentially opens the door for thousands of inmates to ask federal judges to lower their prison time. That’s not being soft on crime; it is being fair and consistent in meting out punishment for drug crimes

The ruling by the federal appeals court based in Cincinnati involved the case of two Kentucky men each sentenced to 10 years in prison for possession and distribution of crack cocaine, It expands upon a U.S. Supreme Court ruling from June 2012. In that case, the justices ruled that people who committed crack cocaine crimes before more lenient penalties took effect in 2010 and received their prison sentence afterward should benefit from the new rules.

The high court didn’t specify if the law applied to people whose cases were over before the passage of the law. Prior to the enactment of the Fair Sentencing Actn there was a huge disparity between crack cocaine sentences and powder cocaine sentences.

Why? Well, there were a number of reasons, but the fact the powder cocaine users were typically whie and wealthy indiviuals who snorted coke of recreation, while crack users were overwhelmingly black and poor was a major facror.

In the appeals court ruling, Judge Gilbert Merritt, writing for the majority, said the law “can and should” be interpreted to replace “the old, discriminatory mandatory minimums,” which weighed heavier on black defendants. Letting discriminatory sentences go forward is unconstitutional, Merritt wrote.

Judge Ronald Lee Gilman said the fact that a disparity still exists, but somehow is constitutional, cannot be explained by the majority. “In my opinion, the lack of any constitutionally relevant distinction between the old ratio and the new ratio further undermines the majority’s equal protection rationale,” Gilman wrote.

“Congress is of course free to amend the Fair Sentencing Act to make it fully retroactive, but that is a legislative prerogative and not appropriate for this court to simply decree,” Gilman wrote.

Because the case against the two defendants is still active, the U.S. attorney’s office in Louisville wisely and properly declined to comment on the latest ruling. If an appeal is to be filed, the federal Solicitor General must first review the case before it goes through several levels of the Justice Department. Only after that process is complete is a decision made about whether to ask the U.S. Supreme Court to hear the case.

Our hope is that this ruling is not appealed to th Supeme Court because it is the right one.