Congress Blewett by not explicitly making the Fair Sentencing Act of 2010 retroactive.

• Author: Cockroft, Andrew

In 2013, the Sixth Circuit Court of Appeals was the first Circuit Court to retroactively apply the Fair Sentencing Act of 2010. The Fair Sentencing Act sought to end the discriminatory effects of the Anti-Drug Abuse Act of 1986 and its treatment of one gram of crack cocaine as the equivalent to one hundred grams of powder cocaine. The Fair Sentencing Act was meant to remedy the injustices brought about by the infamous 100:1 ratio in crack-cocaine and powder cocaine minimum sentencing. Despite this purpose, the Fair Sentencing Act does not contain language that explicitly and unequivocally requires that the new mandatory minimums be applied retroactively. Thus, a narrow reading of the Fair Sentencing Act would mean that individuals sentenced under mandatory minimums that the law acknowledged were, at the very least, perpetuating a racially discriminatory system, would have to serve out those sentences. The Sixth Circuit in Blewett v. United States held that a reading of the Fair Sentencing Act that did not allow for retroactive application of the more lenient and less dubious mandatory minimums created equal protection concerns that mandated reading the text to allow for retroactive application. Although the original Blewett panel decision has been heavily criticized, vacated, and eventually overturned en banc, this Comment argues that the original Blewett panel was correct in holding that equal protection requires reading the text of the Fair Sentencing Act to allow for retroactive application.

TABLE OF CONTENTS INTRODUCTION 326 I. BACKGROUND 328 II. THE CONSTITUTIONAL JURISPRUDENCE ON WHICH THE BLEWETT PANEL RELIES 335 A. Equal Protection and State Action 335 B. Equal Protection and the Requirement of Intent 337 C. The Doctrine of Constitutional Avoidance 343 III. APPLYING THE JURISPRUDENCE TO THE BLEWETT DECISION 344 A. Obligations of the Court as a State Actor 345 B. The Requirement of Intent 346 C. Constitutional Avoidance 353 CONCLUSION 357 INTRODUCTION

Congress passed the Fair Sentencing Act of 2010 ("FSA") (1) in an attempt to remedy the discriminatory effects of the Anti-Drug Abuse Act of 1986 ("the Drug Act"). (2) The Drug Act included mandatory minimums for the possession of crack cocaine; it "treat[ed] one gram of crack cocaine as equivalent to one hundred grams of powder cocaine for sentencing purposes." (3) The sentencing regime based on the 100:1 ratio led to the mass incarceration of offenders, most of whom were black. (4) The dramatic racial disparity in drug sentencing led to the passage of the FSA. (5)

The FSA lessened the mandatory minimum ratio between crack and powder cocaine from 100:1 to 18:1. (6) However, in passing the FSA, Congress did not include explicit language requiring that the new mandatory minimums be applied retroactively. That is, the FSA did not include explicit, undeniable language that would allow offenders sentenced under the old sentencing regime of the Drug Act to benefit from the new, fairer mandatory minimums.

In 2013, the original panel in United States v. Blewett faced the problem raised by this lack of explicit language. (7) Because the FSA lacked such language, the original Blewett panel was left to find ways to make the FSA realize its purpose: reducing the racial disparities in drug sentencing. (8) The panel relied on equal protection jurisprudence as well as the doctrine of constitutional avoidance in holding that the FSA ought to apply retroactively. (9) Although the opinion has been heavily criticized and ultimately overturned after a rehearing en banc, (10) this Comment argues that the original Blewett panel correctly decided that the FSA ought to apply retroactively.

This Comment will proceed with the following parts. Part I describes the history of crack sentencing, beginning with the passage of the Drug Act in 1986. This part will detail the events leading to the passage of the Drug Act and its effects, ultimately resulting in the passage of the FSA and the original Blewett decision. Part I concludes with an overview of the reasoning of the original Blewett decision. Part II will analyze the jurisprudence on which the Blewett decision relies, including the law surrounding equal protection and the doctrine of constitutional avoidance. Part III will demonstrate how the original Blewett panel correctly articulated and used these doctrines to hold that the FSA ought to apply retroactively. This Part also provides an in-depth discussion of the various criticisms of the court's decision. A brief conclusion summarizes the discussion of the preceding parts and discusses the implications of the original Blewett decision and its ultimate reversal.

1. BACKGROUND

   Although the federal government's "War on Drugs" began with the Nixon administration, (11) in the 1980s, law enforcement officials increased their effort to stamp out casual drug use. These efforts coincided with the proliferation of a new drug trend in the United States: in the late seventies and early eighties cocaine began growing in popularity. (12) Crack cocaine came to the national spotlight following the death of basketball star Len Bias, who died after reportedly using the drug following his selection by the Boston Celtics in the first round of the 1986 NBA Draft. (13) Congress, amid the hysteria surrounding this new drug, passed the Anti-Drug Abuse Act of 1986 ("the Drug Act"), (14) which created new mandatory minimum sentences for defendants convicted of possessing or using a series of drugs, including crack cocaine. (15) The Drug Act instituted a 100:1 ratio between crack cocaine and powder cocaine, treating one gram of crack cocaine as equivalent to one hundred grams of powder cocaine for sentencing purposes. (16) A first-time possessor of a small amount of crack cocaine would face a mandatory sentence of five years in prison; (17) however, the same person found to be possessing powder cocaine would have to be in possession of one hundred times that amount to warrant the same five-year sentence. (18)

   The circumstances surrounding the enactment of those mandatory minimums led to many constitutional challenges to the law. Challengers claimed the law violated the Equal Protection Clause and cited various news articles introduced in the Congressional Record that labeled crack dealers as black youths and gangs, (19) and expressed concern that crack cocaine "would spill out of the ghettos" and find its way into the suburbs. (20) Moreover, challengers argued that the procedural irregularities surrounding the passage of the new mandatory minimums indicated a discriminatory purpose behind the law. (21) For example, Congress held very few hearings on the enhanced penalties and although the penalty ratio was originally set at 50:1 between crack and powder cocaine, the ratio was doubled for arguably no reason. (22) Despite this evidence, these challenges were not successful and the Drug Act was upheld. (23)

   Since its enactment, the Anti-Drug Abuse Act has had disastrous consequences on the African-American community. The 100:1 crack cocaine ratio has led to the imprisonment of thousands of offenders, most of whom are black. (24) The statistics are alarming. The U.S. Sentencing Commission projected that approximately 30,000 federal prisoners would be serving crack cocaine sentences by the end of 2011. (25) In 2011, 83% of those prisoners were black. (26) In just one year, 2010, 92.7% of all crack cocaine defendants were non-white, and the majority of them (78.5%) were black. (27) Between 1988 and 1995, federal prosecutors did not bring a single case against a white person "under the crack provision in seventeen states, including major cities such as Boston, Denver, Chicago, Miami, Dallas, and Los Angeles." (28)

   After acknowledging that the 100:1 sentencing ratio was the "primary cause of the growing disparity between sentences for Black and White federal defendants," (29) the United States Sentencing Commission recommended that Congress reduce the sentencing ratio in 1995 (30) and unanimously recommended reducing the ratio in 1997 (31) and 2002. (32) Even after adjusting the length of sentences for crack in 2007, Congress made no changes to the 100:1 ratio. (33)

   Finally, in 2010, Congress passed the Fair Sentencing Act of 2010 (FSA), (34) scaling back the harsh and racially disparate mandatory sentences for crack offenses. (35) The FSA changed the ratio between crack and powder cocaine from 100:1 to 18:1 in order "to restore fairness to Federal cocaine sentencing." (36) The statute took effect on August 3, 2010. (37)

   When it was passed, it was unclear how the FSA would affect individuals sentenced under the old regime. (38) In passing the act, Congress failed to include language that the FSA ought to apply retroactively--that is, there was no explicit language stating that the act's new sentencing standards should apply to individuals convicted or sentenced prior to the enactment of the FSA. In May 2011, the United States Sentencing Commission produced a study which indicated that if the FSA were to apply retroactively, more than 12,000 offenders would be eligible to receive a reduced sentence. (39)

   In 2012, in Dorsey v. United States, the Supreme Court considered the case of several offenders who were charged with and convicted of crack offenses prior to the enactment of the FSA, but had not been sentenced until after the law had passed. (40) After acknowledging that the passage of the FSA was, in part, motivated by public outcry over unjustified race-based differences in sentencing, (41) the Court held in favor of the criminal offenders. (42) The Court held that "Congress intended the Fair Sentencing Act's new, lower mandatory minimums to apply to the post-Act sentencing of pre-Act offenders." (43) However, the Court left open the question of whether the FSA would apply retroactively to all pre-Act offenders, regardless of when their sentencing occurred. Even with the holding in Dorsey...