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Court: Reduced crack sentences not retroactive

By AMANDA LEE MYERS
Associated Press

CINCINNATI (AP) – A 2010 law designed to eliminate harsher sentences for black offenders convicted of crack cocaine crimes should not apply retroactively, a federal appeals court ruled in a deeply divided decision that several dissenting judges wrote amounts to furthering racial discrimination.

In its 10-7 Tuesday decision stemming from a Kentucky case and splitting largely on party lines, the 6th Circuit Court of Appeals in Cincinnati vacated an earlier decision from a three-judge panel of the court that found prisoners convicted under the old sentencing guidelines have a right to resentencing hearings.

Tuesday’s majority’s opinion found that when Congress passed the Fair Sentencing Act in 2010, signed by President Barack Obama, it was not meant to apply retroactively to the thousands of prisoners sentenced under the old guidelines and that they must adhere to the law’s intent.

The law changed the federal government’s previous 100-to-1 ratio in sentencing people for possession of crack cocaine versus powder cocaine, meaning someone caught with 5 grams of crack was sentenced the same as someone caught with 500 grams of powder.

The disparity had long been criticized as racially discriminatory because it disproportionately affected black defendants, who more commonly were convicted of crack cocaine offenses.

For instance, black people made up 30 percent of reported crack users but 83 percent of federal crack convicts, according to the U.S. Sentencing Commission. In contrast, white people accounted for 62 percent of users but just 7 percent of convicts, the commission found.

The 6th Circuit majority rejected arguments that inmates who can’t get their sentences reduced under the new law are being subjected to cruel and unusual punishment in violation of their Eighth Amendment rights.

“The Eighth Amendment is not a ratchet that makes a harsher system of penalties unconstitutional the moment a more lenient one is … adopted, a theory that would have the perverse effect of discouraging lawmakers from ever lowering criminal sentences,” according to the opinion, written by Judge Jeffery S. Sutton, a George W. Bush appointee.

The justices did express some regret, writing that they’re not arguing against the law being applied retroactively, just that it doesn’t and that “Congress should think seriously about making” that change.

Five of the seven dissenting judges each wrote their own opinions about why they strongly disagree, with some criticizing the majority opinion of falling on the wrong side of justice.

“It is not Congress’ but this court’s decision to create the vast disproportionately in sentencing,” wrote Judge Gilbert S. Merritt, a Carter appointee. “Both the Department of Justice and this court know the facts, the degree of disproportionately, the irrationality of the disparity, and the racial makeup of the prison population that must suffer the consequences.”

Judge Eric L. Clay, a Clinton appointee, wrote: “This court’s opinion furthers the injustice that has resulted from such an unequal sentencing regime.”

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