Occasionally you’ll hear people talk about America having a long history of racism as it relates to the war on drugs. If you’re someone who tends to push back on any claims of racism thanks to race-baiters who make a living off of exploiting racism, and even making it up when they can’t find it (Not mentioning any names, but we’ll call our fictional example Jesse Sharpton), hear me out.
Let me tell you that while I agree, there is a lot of non-racist things that people are calling racism, the war on drugs is not one of them. It is absolutely rooted in racist philosophy.
For instance, laws against marijuana were promoted and enforced by the long time (1930-1962) head of the Federal Bureau of Narcotics, Harry Anslinger, a Democrat from Pennsylvania. He has a long history of racist comments, although apparently some of them are disputable as to whether they were from him or not. I won’t post them here, because I don’t know which ones he actually said, and they’re kinda disgusting enough that I’d rather not share them. But feel free to follow this Google search on the matter.
But think about this; while alcohol was the drug of choice for white people, the black community loved that ganja.
It doesn’t take a legal scholar to understand that despite both being pretty benign, the one that black people like is illegal, while white people are allowed to get shitfaced on the daily with few repercussions.
But this case revolves around another racist drug law. Crack cocaine vs the good ole powdery cocaine. Because despite both of them being cocaine, crack was way more popular in the black community, while the powdery nose candy was the version white people tended to use. Yet, despite both being cocaine, the mandatory minimums and sentencing for crack have been significantly higher than the sentences for powdered cocaine over the years, which resulted in black people being convicted and incarcerated for much longer than white people for essentially the same offense.
For instance, under the old laws 5 grams of crack had the same penalty as 500 grams of the powdery shit. That 100:1 ratio, had no justification for it, and you have to ignore a lot of shit to think it was anything other than racist in its nature.
Some Republican and Democrat presidents have acknowledged this problem, and over the years, have pardoned people who were sentenced under these unfair regimes, often using their pardon powers to release those who were tried in federal court.
Eventually, congress did act in 2010, to pass the Fair Sentencing Act (FSA), reducing these overtly biased laws, and then in 2018, they passed the First Step Act (also, FSA, so I guess we’ll call it FSA2), making the FSA retroactive. Within a year, over 2,000 non-violent drug offenders got their sentences reduced. I specify non-violent because if they had other crimes related to their drug convictions, where they used violence, they tended to have their claims rejected for being violent assholes. The point of the law, was to let peaceful drug abusers go on about their life, not to let murderers and shit go free.
Now, about this case…
Carlos Concepcion, was a dude who needed a fucking J-O-B. Apparently, being rather talentless, he failed in most occupations, but eventually found his dream job—he was going to sell some fucking crack.
In 2009, that shit got him in trouble though when he decided to sell that shit to a DEA agent who was working undercover. He was quoted as saying, “Whoops! Do over.”
Carlos was hit with a long-ass 19 year sentence, as the law required because it wasn’t his first time getting busted for shit like this.
But once FSA and FSA2 were passed, Carlos was like, “Yo, dawg. Can I get the fuck on up outta here? These new FSA laws are the shit, man. Besides, you know some of that old shit you had me on, got vacated. Not to mention, that 2015 Johnson v. United States shit says my other crimes weren’t violence, either. So like, I totally don’t belong here. Not to mentioned, I got some job training so I don’t have to sell that shit no more, and I’m clean as a new dollar now.”
But a district court was like, “No, dawg. We think you’re special, and we’re going to keep you where you’re at. Enjoy this prison food and a gentle ass-raping later.”
So he went to the US Court of Appeals, who were also like, “No dawg. Stay put. Sure congress laid the framework for you to get an early release, but it doesn’t mean we fucking have to do it.” We think you’re fine right where you are. Did the district court tell you about the food and ass-rapings?”
One of the issues arises from whether other new developments should be considered. Like, if other laws were changed between their conviction and now, if they showed signs of rehabilitation, or any other shit that might suggest their sentence be reduced, should courts look at those too, or just the two FSAs, while ignoring any other new shit.
So despite Concepcion’s valid points that some of his other cases had either been vacated, or were no longer considered violent crimes after that SCOTUS decision in Johnson, coupled with all the shit he’d done in prison to rehabilitate himself, the court determined shouldn’t be considered, and as such, his 19 year sentence, was fairly appropriate for someone who did all the shit he did, even when considering the FSAs.
As per usual, SCOTUS doesn’t really so much care about the interesting shit in all this, they care about some nerdy ass procedural shit, in this case, one simple question: Does they statute mean they MUST or MAY consider new information, or may they only consider the specific changes in the FSAs.
As arguments began, counsel Charles L. McCloud for “Latino Heisenberg” was like, “listen, we’d LOVE for you to say the courts MUST consider other new relevant information, but we’d settle for MAY consider. Just help us out, dawg!”
Justice Roberts and Gorsuch seemed to question the “MAY” interpretation. Justice Roberts started by offering a hypothetical:
It’s like a police officer—you know, you can’t park here or you pay—you have to pay, you know, $20.
You know, it’s one thing to say, yeah, the officer can say, you know, I’m not going to give you a ticket, I see you’re coming down the street or whatever it is.
Doesn’t have to, you know, enforce whatever discretion he has.
But the officer can’t say I think people ought to be able to park here, so I’m never going to give anybody a ticket for that. What is—what is this “may” argument?
The point he was trying to make, which justice Gorsuch also questioned, was if you give courts this much leeway, then you might get some ideological prick of a judge who is like, “I fucking hate druggies, so I’m never going to consider new info. I’ll do what you tell me and consider the FSA x 2 rules, but outside of that, these miscreants can suck a bag of dicks.”
It seems odd that congress would allow such a thing, and there doesn’t seem to be any law where congress authorizes the courts to do so.
But justice Breyer, apparently thinking Justices Roberts and Gorsuch have all of a suddenly lost their marbles chimed in and argued that the courts use discretion all the time. And this debate over “May” seems stupid. He’s like, “Hell, man, it’s written in the fucking statute.
Since there was a party of justices shitting on other justices going on, Justice Elena Kagan who fucking LOVES to argue, and was keen to join this party was like, “Justice Breyer, did you even read this shit? Or are you so close to retirement that you couldn’t even fucking bother. The statute says, “May impose reduced sentencing” it doesn’t say “May use discretion.” I mean, what the fuck, man? I know you’re old, but do your job.”
Counsel McCloud, responding to justice Kagan’s argument, decided to attempt to use this confusion to push for the MUST interpretation by pointing out:
One advantage of the “must consider” rule is that it does not lead to a situation where courts are able to ignore information that everyone would agree is relevant. To go back to the example that I gave in my introduction, it’s inconceivable to me that Congress would have wanted a court to make a decision about sentencing without accounting for the fact that the defendant is suspected in the murder of the prison guard.
Justice Alito, also jumping into the hypotheticals, went in a totally different direction:
Now somebody’s been sentenced to, let’s say, 10 years for an offense but behaves really badly in — while in prison, and so Congress says, under those circumstances, you can bring that person back before the sentencing judge and impose a new sentence so that the person is sentenced to a longer term?
Counsel McCloud, assuming justice Alito had hit the crack pipe just deflected, and was like, “The FSA doesn’t have a provision to make the sentence longer, you idiot. What the fuck are we even talking about?”
Eventually, justice Kavanaugh chimed in and asked an interesting question. Let’s say congress makes some change to other laws, like in this case, such as career offender laws, that are related drug laws. But when they make those changes, they don’t make them retroactive like the FSAs, does it makes sense that under FSA resentencing cases, they can really consider these other changes to laws, since they’re not retroactive? Because if so, you may have a career offender in another non-crack crime get no consideration for reduction based on career offender law changes, while an identical crack offender does.
Counsel’s response was to agree with the premise, but point out that the point of the law was specifically about crack offenders, so career offenders slinging other drugs…well…fuck ’em.
The United States had their turn, and counsel Matthew Guarnieri was having none of this “Must/May” shit. He opened with:
Mr. Chief Justice, and may it please the Court: Section 404 of the First Step Act authorizes a limited sentence reduction proceeding, not a plenary resentencing. By its plain terms, Section 404 only requires a district court to take account of one new development, namely, the changes to crack cocaine sentencing made by Sections 2 and 3 of the Fair Sentencing Act. Section 404 does not entitle a defendant to insist that the court consider other unrelated factual and legal developments since the original sentencing, including the more than 75 non-retroactive amendments to the Sentencing Guidelines that the Commission has adopted since 2010. Reading Section 404 to create such an entitlement would result in a significant and unjustified windfall for a select subset of crack cocaine offenders who were sentenced before the effective date of the Fair Sentencing Act. Petitioner’s principal argument, as you’ve heard this morning, in favor of such an entitlement rests on the term “impose” in Section 404, which Petitioner would read to incorporate a requirement to redo the Section 3553(a) analysis that a court does in imposing an initial sentence. That argument is inconsistent with the text of Section 404 as a whole, in particular, with the text of Section 404(c), as well as with the undisputedly limited scope and nature of sentence reduction proceedings. As the statutory text reflects, the lodestar of any proceeding under Section 404 is the defendant’s existing lawful sentence. At every single proceeding under Section 404, the district court has already fully considered the Section 3553(a) factors at the original sentencing, and the only question before the court is whether to reduce that current sentence. In that context, we think that Congress chose to require district courts to consider only the changes made by Sections 2 and 3 of the Fair Sentencing Act, and it sensibly left the consideration of other developments to the Court’s discretion. I welcome the Court’s questions.
So much for president Biden being a friend of the black community. Don’t forget, it’s his DOJ who’s fighting this. He could absolutely instruct them to adopt Concepcion’s view, and go with the notion that the courts must consider this new information, but he didn’t.
But counsel Guarnieri’s argument is that the FSAs aren’t suggesting we ignore the sentencing phase that occurred originally, and resentence them by today’s standards with todays current laws and other knowledge, it’s just saying, “Hey, these discrepancies are bullshit, and you should fix that particular sentence, if someone was sentenced under old guidelines. Here’s how you do it.”
That being said, they were inclined to agreed with the “May” interpretation, and seemed willing to concede that. The part they have beef with, is the “Must” consideration. They are not OK with telling judges ruling on an FSA claim, to throw out all sentencing, and start over from scratch in every case. Sometimes, judges might have reasons not to do that, and they should be given that freedom.
Justice Neil Gorsuch, seemed rather skeptical of the government’s argument, when he asked:
We’re positing two district courts, one of whom who says looking at the person before me and deciding how many years this person must spend in federal prison, I take cognizance of the fact that sentencing guidelines have changed and here is the Commission’s current recommendation. And the other one says: I choose not to do so, for no reason, for no reason.
Now, if he had a bad behavior in prison, that might be a reason, okay, not — not to — not to impose a lower sentence.
I get that. But just to say “I choose not to” traditionally has never been a good enough reason under this Court’s precedents to ignore the changes in Commission guidance, intervening law, intervening facts, in looking at an individual in the eye at the time he stands before the court. But your submission, I understand it, is different.
And I’m just — I just don’t know another area in which we give lower courts that kind of latitude.
Are you aware of any?
In an unsigned bipartisan opinion where justices Gorsuch and Thomas joined the Democratic appointees, Justice Sotomayor wrote the opinion that indeed they may consider this new information outside the FSAs, but the other Republican appointees were like, “Y’all are some bleeding hear mother fuckers. That’s not what the law says, and you’re just inferring that because you want to. Also, Clarence, what the fuck are you doing? We thought you were with us, bro. Is this about the black thing, because Carlos Concepcion is a Spanish name, you know that, right?