The Supreme Court’s 2007 term began October 1. The Court has 19 new cases on its docket, including three that deal with issues of racial justice. Two of the cases, Kimbrough v. United States and Crawford v. Marion County Election Board, et al. deal with issues that are not per se issues of race, but that historically fall disproportionately hard on minorities— mandatory drug sentencing and voting restrictions. The third, CBOCS West Inc. v. Humphries, deals with employment discrimination based on race.

 

 

Kimbrough is a case challenging the federal sentencing guidelines for possession of crack cocaine—specifically, the huge disparity in how the federal government treats crack cocaine versus powdered cocaine. The penalty for crack cocaine is one hundred times that for the powdered version of the drug, meaning that a defendant possessing five grams of crack cocaine faces a five-year mandatory minimum sentence—the same sentence he or she would face for 500 grams (over one pound) of powder.[i] Pharmacologically, the drugs are identical.[ii] The sentencing disparity arose from a belief that crack cocaine was significantly more dangerous than the powdered variety, and a media frenzy over the sudden death of basketball star Len Bias in 1986, which was widely attributed to crack cocaine use.[iii] Politically, creating mandatory drug sentencing was a way for Congressional Democrats of the era to appear “tough on drugs.”[iv]

 

The Anti-Drug Abuse Act of 1986, one of the more vilified aspects of the federal government’s War on Drugs, has had an egregiously disproportionate impact on African Americans, especially in urban areas. Over 80% of all people sentenced for crack possession in the United States in 2006 were African American; just over 16% were Caucasian or Latino, despite government data that the latter groups represent two-thirds of crack users.[v] Studies have disproved myths about crack cocaine, concluding that it has a similar effect on the body as other so-called “hard” drugs.[vi] Despite this, sentences for crack cocaine are nearly four years longer than those for heroin, and it remains the only drug that carries a mandatory sentence for first-time offenders.

Derrick Kimbrough, a Persian Gulf war veteran, pled guilty to two counts of possessing and distributing more than 50 grams of crack cocaine in Norfolk, Virginia. Combined with his criminal record (misdemeanors only) and a weapons charge that carried its own mandatory five-years, the recommended sentence for Mr. Kimbrough was 19-22 years in prison. The federal district court judge sitting in the case, Judge Raymond A. Jackson, called the recommended sentence “ridiculous” and refused to impose it. He sentenced Mr. Kimbrough to 15 years. On appeal, the U.S. Court of Appeals for the Fourth Circuit overturned Judge Jackson’s discretionary sentence, ruling that trial judges act unreasonably if they decline to follow sentencing guidelines based solely on a desire to “avoid the sentencing disparity caused by the 100 to 1 ratio.”[vii]

 

However, Judge Jackson’s ruling is not unusual. In light of the criticisms of the disparity, other federal judges have declined to follow sentencing guidelines as well, often finding ways to impose lighter sentences than the law stipulates. In 2005, in the case of United States v. Booker, the Supreme Court declared sentencing guidelines “advisory,” for fear that they took too much responsibility away from juries.[viii] But the issue of exactly how much discretion judges have against sentencing guidelines remains undecided, and the courts have struggled to come up with standards for reducing the disparity while maintaining uniformity in the system. Due to a move by the Sentencing Commission to reduce crack cocaine mandatory sentences by 30%, which will go into effect November 1 absent action by Congress, the Court’s decision may not have much of an impact.[ix]

 

The questions for review by the Supreme Court this term are 1) When imposing a sentence for distributing crack cocaine, may a District Court judge consider the impact of the 100-to-1 crack/powder ratio and the Sentencing Commission's view that the ratio leads to exaggerated sentences for crimes involving crack cocaine? and 2) May a District Court judge, in an effort to avoid a sentencing disparity, impose a sentence that is below the range recommended by the 100-to-1 crack/powder ratio in the Guidelines?[x]

 

 

These two cases are Constitutional challenges to a voter identification statute in Indiana. The legal bases for the challenges are the 1^st and 14^th amendments. Public Law 109-2005, known popularly as the Vote with ID law, requires Indiana residents to present a photo ID (issued by the State of Indiana, another state, the federal government, or an Indiana state school) at the polls in order to vote. Previously, Indiana only required a signature to vote, a photocopy of which was kept on file.

 

The U.S. Court of Appeals for the Seventh Circuit, in an opinion written by conservative Judge Richard Posner, held that the law is not an unconstitutional infringement on voter rights. Posner articulated his decision based on his finding that the real burden was on the Democratic Party to ensure that its key voters were not dissuaded by the law, and that the individual benefits from voting are “elusive” as elections are not decided by one vote[xi]. He punctuated this by asserting his belief that it is “exceedingly difficult to maneuver in today’s America without a photo ID… and as a consequence, the majority of adults have such identification.”[xii] A 2005 study by the University of Wisconsin, however, seems to show just the opposite for minority groups. In a survey of Milwaukee County adults, it found that less than half of both African Americans and Latino-Americans had a valid driver’s license, compared with 83% of Caucasian residents. In fact, the Justice Department refused to pre-clear a similar law in Louisiana, based on a finding that African Americans in that state were four to five times less likely to have a driver’s license than Caucasians.[xiii]

 

Poll taxes and ID laws have historically been implicated in discrimination against racial minorities and the poor. Opponents of the Vote with ID law rely on a 1966 case, Harper v. Virginia State Bd. of Elections[xiv] in which the Supreme Court found that a $1.50 poll tax unconstitutionally disenfranchised poor voters in several southern states. The court famously and unequivocally stated that any restrictions on voting must be “closely scrutinized and carefully confined.”[xv] Although Indiana has a stated exemption for indigent people and those who have a religious objection to being photographed,[xvi] statistics show that groups the least likely to have photo identification are the elderly, college students, and racial minorities[xvii]; they also show that Indiana has never had a documented case of a person trying to vote by claiming they were someone else—the issue the law purportedly addresses.[xviii] A study by Rutgers University found that states with ID or signature laws saw a 4% overall drop in voter turnout, as well as a 6% drop among African American voters and 10% among Latin-Americans in the 2004 election season.[xix]

 

A federal judge in Arizona recently held that state’s voter ID law did not constitute a poll tax, asserting that the mere threat of voter fraud was a more significant danger to a meaningful right to vote than the burden of producing a photo ID.[xx] The Arizona law, according to its critics, is a naked attempt to bar Mexican immigrants and the state’s comparatively large Native American population—two groups that historically vote in Democratic blocs—from voting[xxi]. In 2006, USA Today reported that 21,000 voter registration applications in Arizona had been rejected due to inadequate identification.[xxii] At least one lawsuit is pending in Arizona on this issue.

 

The question for review by the Supreme Court this term is: does the Indiana statute requiring voters to present a government-issued photo identification violate the First and Fourteenth Amendments?[xxiii]

 

 

Hedrick Humphries, an African American man, was an associate manager at a Cracker Barrel restaurant (which is owned by CBOCS West). He claims he was fired after complaining about his supervisor’s racially discriminatory acts.[xxiv] The U.S. Court of Appeals for the Seventh Circuit, while dismissing Humphries’ Title VII discrimination claim[xxv], held that Humphries made a prima facie case for retaliation, and that Section 1981 of the U.S. Code recognized such a claim.

 

The issue in Humphries is whether retaliation claims are in fact recognized under 42 US 1981. Section 1981, enacted during Reconstruction as part of the Civil Rights Act of 1886, stipulates that all persons, regardless of race, have equal rights with regards to making and enforcing contracts. CBOCS West, in its brief to the Supreme Court, alleged that Congress would have included language establishing a retaliation claim when it amended the Section in the 1991Civil Rights Act if it had intended such a claim to exist. CBOCS argues that only racially discriminatory acts are recognized by Section 1981, and that retaliatory firing is based on an employee’s actions (i.e. complaining about racial discrimination), not his race.[xxvi]

 

Under Supreme Court precedent, however, Humphries does have a claim. In Sullivan v. Little Hunting Park, Inc.[xxvii], the Court recognized a retaliation claim in Section 1982—the companion legislation to 1981 that extends its protections to property rights. Further, in Jackson v. Birmingham Board of Education[xxviii], the Court recognized that retaliation itself is a form of racial discrimination.

 

In granting certiorari to Humphries, the Supreme Court departed from its usual practice of only hearing cases which are disputed in the lower courts. In this case all federal appeals courts which have decided the issue have recognized the retaliation claim. According to the New York Times, when the Court agrees to hear a case in which there is no lower-court conflict, it is often in order to advance a particular agenda[xxix]. This summer, the Court made a similar move when it granted certiorari to hear the two school integration cases.[xxx]

 

The question for review by the Supreme Court this term is whether Congress intended for Section 1981 to recognize a retaliation claim.

---