A Stitch in Haste

I suspect that very few of my readers are crack addicts, so you might not be familiar with the "powder/crack" controversy:

In federal court, crack offenses generate sentences 100 times greater than comparable powder-cocaine crimes. In other words, while it takes 500 grams of cocaine to trigger a five-year mandatory minimum sentence, 5 grams of crack earns the same punishment.
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The 100-to-1 penalty ratio dates from 1986, when lawmakers established mandatory minimum sentences in response to widespread fear of a crack epidemic. For years judges have railed against the heavy crack sentences as unfair, and Congress has considered amending them before. What's different this time is that the judges are doing more than complaining.

There are other components to the controversy, particularly the demographic truth that blacks are more likely to use crack cocaine and are therefore likely to be punished more severely than whites (who, demographically, tend to use powder cocaine and therefore get lighter sentences when caught). That is not my subject here, however.

I want to focus on the Booker backlash:

In [U.S. v. Booker, 543 U.S. 220 (2005)] the court found that mandatory sentencing guidelines violate a defendant's constitutional right to a jury trial (by requiring courts to assign a sentence based on facts found by judges, after the jury has issued a conviction). The federal sentencing guidelines, mandatory since they went into effect in 1987, became merely "advisory."

Stated differently, a judge can now disregard (up to a point), a legislatively-dictated sentence if that judge considers the Sentencing Guidelines to be "unreasonable."

Or, instead of "unreasonable," might we say "irrational"? As in, not satisfying "rational basis review"?

The Booker backlash is just one manifestation of a fundamental judicial responsibility -- one under attack by those who toss around the meaningless canard of "judicial activism." Regardless of the context, regardless of the litigants, regardless of which particular provision of the Constitution is at issue, it is always -- always -- the prerogative and the duty of judges to strike down irrational laws. It is never -- never -- the duty of judges to defer to the legislature (or the executive or the electorate) merely for the sake of deference.

The Slate op-ed sums it up nicely:

It is rare for judges to use their opinions as a forum for editorializing about what Congress should be doing. So, when a particular policy attracts persistent judicial protest, Congress does well to listen carefully. This is especially true when it comes to potentially discriminatory laws.

Whether it's the impact of an irrational "powder/crack" penalty ratio on a racial minority, or the impact of an irrational marriage law on a sexual minority, it is indeed proper for judges to invoke that "rare forum."

And note too that the less often that the non-judicial parts of government behave irrationally, the rarer that "rare forum" would become. In other words, if you don't want judges striking down laws, then don't pass those laws in the first place.

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For those particularly interested in Booker and the Sentencing Guidelines, your best source is without question the excellent blawg Sentencing Law & Policy.