concurring:
The rationality of the 100:1 crack/powder ratio and its implications for equal protection will no doubt be the subject of continuing examination both within the judiciary and without. The enduring constitutional viability of the crack/powder distinction has been questioned by at least two judges in other circuits on grounds similar to those to which Reddrick alludes. In concurring opinions, these judges have suggested that new information might undermine the rationality of the extraordinary sentencing disparity. United States v. Smith, 73 F.3d 1414, 1418 (6th Cir.1996) (Jones, J., concurring); United States v. Then, 56 F.3d 464, 466 (2d Cir.1995) (Calabresi, J., concurring). The Ninth Circuit, on the other hand, has recently rejected such a prospect, stating that “[w]e do not agree that the Commission’s report, or Congress’s decision to reject it, affects the prece-dential value of our ruling that Congress had a rational basis for the 100:1 ratio.” United States v. Jackson, 84 F.3d 1154 (9th Cir.1996).
The “no longer rational” argument rejected in Jackson may be distinct from an argument based on discriminatory intent. In that regard, Judge Calabresi wrote in his concurrence:
If Congress, for example, though it was made aware of both the dramatically disparate impact among minority groups of enhanced crack penalties and of the limited evidence supporting such enhanced penalties, were nevertheless to act affirmatively and negate the Commission’s proposed amendments to the Sentencing Guidelines (or perhaps were even just to allow the 100-to-l ratio to persist in mandatory minimum sentences), subsequent equal protection challenges based on claims of discriminatory purposes might well lie.... As the Supreme Court has pointed out, faeially-neutral legislation violates equal protection if there is evidence that the legislature has “selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282, 2296, 60 L.Ed.2d 870 (1979).
Then, 56 F.3d at 468.
Whether there could be a basis for the sort of argument suggested by Judge Calabresi is surely unclear. But even without it, the extraordinary impact of the 100:1 ratio will provoke examination and reexamination however many efforts are made to lay the matter to rest.