Federal district court judges are ignoring Congressional sentencing rules regarding crack defendants, but the Justice Department, to its credit, is opposing this judicial rewriting of the law, reports the New York Times’s Adam Liptak. In 2010, Congress narrowed the disparities between federal sentences for crack and cocaine trafficking, but did not make the revision retroactive. Some district judges are choosing to apply the 2010 revisions to defendants who committed their crimes before the law took effect, even though it is Congress’s prerogative, not the judiciary’s, to decide the scope of a law.
Senators Richard Durbin and Patrick Leahy, the principal sponsors of the revised sentencing law, wrote to Attorney General Eric Holder asking him apply their law retroactively in Justice Department prosecutions. Not only did DOJ not take up their offer, it appealed a recent sentence imposed on a crack seller in Maine on the ground that it was too lenient under the relevant sentencing law.
Whatever one thinks of the federal crack penalties, such adherence to the plain meaning of a Congressional statute is admirable. If Durbin and Leahy erred in not making the revisions retroactive, they should amend the law through the usual procedures, not pressure DOJ into doing their work for them. Perhaps, however, Congress did not intend retroactivity. That Holder would buck their pressure is particularly admirable, since there are few areas more susceptible to racial demagoguery than federal crack penalties.
Here, for the record, are some common misconceptions about the federal crack law:
–“The crack-cocaine sentencing disparities result from racial bias.” In fact, black leaders were the first to sound the alarm about the drug. In 1986, Queens congressman Alton Waldon called on his colleagues to legislate against crack: “For those of us who are black this self-inflicted pain is the worst oppression we have known since slavery. . . . Let us . . . pledge to crack down on crack.” The bill that eventually passed, containing the crack/powder distinction, won majority support among black congressmen, none of whom objected to it as racist.
No one calls the federal meth laws anti-Hispanic or anti-white even though the federal methamphetamine-trafficking penalties are identical to those for crack under the previous sentencing guidelines: five grams of meth net you a mandatory minimum five-year sentence. In 2006, the 5,391 sentenced federal meth defendants (nearly as many as the crack defendants) were 54 percent white, 39 percent Hispanic, and 2 percent black; by contrast, 81% of federal crack defendants were black.
–“Federal crack penalties account for the high rate of black incarceration.” In fact there are only about 5000 federal crack defendants a year. In 2006, there were a little over 560,000 blacks in federal and state prisons. Federal crack defendants are a drop in the bucket of black criminality. If you remove all drug prisoners from the state prison population (where the vast majority–about 88%–of the nation’s prisoners are held), the proportion of black prisoners drops a miniscule amount: from 37.5% to 37%.
To be sure, as I write in City Journal, a legislative bidding war drove federal crack penalties ultimately to an arbitrary and excessive point; the reduction of those penalties is appropriate. But if Congress had ignored black legislators’ calls to increase cocaine-trafficking penalties, the outcry among the groups now crying racism would have been deafening. What led to the crack-sentencing scheme wasn’t racism but legal logic. Prosecutors rely on heavy statutory penalties to induce defendants to spill the beans on their criminal colleagues. When you tell someone he is facing 150 years to life but has the possibility of getting out after eight if he tells you who committed a string of homicides, he suddenly develops a strong sense of public-spiritedness.
Eric Holder is hardly immune from racial politics. His department plans to sic its civil rights attorneys on police departments, saddling them with costly, inefficient consent decrees. But here, at least, he deserves credit for following the law.