Examining Barrett’s Record on Criminal Justice

Criminal justice issues haven’t been the focus of Amy Coney Barrett’s scholarship, but when she has written about them, the results…haven’t been great. We discussed her comments on Miranda rights in our previous post, but it’s time to take a look at another troubling element of her record (okay, one of the other troubling elements of her record. There are so many.): Barrett’s comments about a 2008 amendment to the sentencing guidelines by the United States Sentencing Commission.

Okay, wait: what is the Sentencing Commission, and why should I care?

The Sentencing Commission is part of the judicial branch, and was created in the 1980’s to reduce “sentencing disparities and promote transparency and proportionality in sentencing.” Basically, they look at the data on federal sentencing practices and put out guidelines for judges to try and equalize the sentences people receive around the country. Judges use the guidelines the Sentencing Commission puts out to decide on sentences in federal cases.

What happened in 2008?

In 2008, the Sentencing Commission issued an amendment to its guidelines aimed at fixing the sentencing disparity between powder and crack cocaine. The Sentencing Commission made the change retroactive, meaning that inmates who had already been sentenced under the old guidelines could possibly have their sentences reduced.

What, exactly, did Barrett say?

In a post at PrawsBlag, Barrett took issue with the amendment’s retroactivity, complaining that it would likely affect 20,000 inmates and put a major strain on “the courts, prosecutors, probation departments, and marshals.”

So what’s the problem?

Two things: One, the Sentencing Commission had already considered a bunch of testimony that stated that any “administrative burdens” related to making the amendment retroactive were manageable (as we’ve )– before Barrett wrote her blog.

But the bigger problem is what Barrett didn’t bother to address: the underlying injustice the old sentencing guidelines had imposed on communities of color.

The Anti-Drug Abuse Act of 1986 had originally set a crazy-high sentencing ratio for offenses involving crack cocaine versus powder cocaine. The ACLU puts it in perspective this way: distribution of just 5 grams of crack carried a minimum 5-year sentence – the same minimum sentence for distribution of 500 grams of coke.

As the ACLU notes: “[B]ecause the majority of people arrested for crack offenses are African American, the 100:1 ratio resulted in vast racial disparities in the average length of sentences for comparable offenses. On average, under the 100:1 regime, African Americans served virtually as much time in prison for non-violent drug offenses as whites did for violent offenses.”

To put it lightly, that’s kind of a huge deal.

To write a blog post — on a subject you admit you aren’t an expert on — questioning an effort to fix the crack versus coke disparity, and make NO mention of the tremendous harm the disparity had caused communities of color, is unacceptable.

Anyone who disregards the horrific impact these guidelines have had on communities of color has no business on a federal court.

P.S.: for a little more on the crack vs coke disparity, check out the ACLU’s video Crack the Disparity