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February 28, 2007

The sad (unchanged) politics of federal sentencing

Boston Globe columnist Derrick Jackson has this new strong commentary entitled, "The politics of drug sentencing."  Responding to the Claiborne case, here are some highlights of a piece which rightly wonders why Senators filed a brief in support of the government:

Two years ago, the Supreme Court ruled that federal guidelines could be only advisory, not mandatory.  But the 100-to-1 [crack-powder] ratio still stands. That may have been what Claiborne's judge in St. Louis was trying to acknowledge in the 15-month sentence.

One might have thought that such history would lead [Senator Edward] Kennedy to side with Claiborne. But [Senators] Kennedy, Hatch, and Feinstein wrote that while they "respect the thoughtfulness with which the court conducted the sentencing of Mr. Claiborne," and while "the court may indeed have been correct that a sentence of 15 months, not 37 or 46 months was warranted in light of the specific facts of the offense and the defendant's background," there is no guarantee "that another court applying the same factors considered by the court below would reach the same or a similar result."

In a phone interview, Christine Leonard, Kennedy's counsel on the Judiciary Committee, said that the senator is actually "comfortable" with Claiborne's 15-month sentence. Kennedy has long been a critic of the 100-to-1 ratio, citing its "massive racial discrimination."  Leonard said the judge simply did not provide enough reasons to justify it, leaving the door open for a conservative judge to say, "I won't give him 15 months, I'll give him 15 years." The concern, Leonard said, was that you cannot throw out the baby of sentencing reform with the bathwater of this individual case. "We're not necessarily seeking to disturb the verdict," she said. "We want to maintain a system of fairness and accountability for how [the judge] got there."

That sounds reasonable. But there is also the danger of "fool me once, shame on you. " Kennedy has played ball with the Bush administration before on issues involving massive racial impacts, most notably No Child Left Behind. Kennedy worked with Bush to enact it only to see Bush fund it at a fraction of its needs. 

There is also the question of how hard the new Democratic majority in Congress will fight the fear of being seen as soft on crime to end the 100-to-1 ratio.  House Judiciary Committee member Marty Meehan of Massachusetts expects chairman John Conyers of Michigan to hold hearings in the spring. Conyers is a longtime opponent of the ratio. Republican Senator Jeff Sessions of Alabama has proposed a 20-to-1 ratio, but 20-to-1 is not grounded in facts , either. "I don't think we'll get it passed in this session," Meehan said. "I would hope that in the next session of Congress there would be the will to change. I wish I could tell you we'll have hearings, the American people would be outraged, and this would pass with bipartisan support. I can't tell you that. But we can start laying the foundation."

What is needed is less a foundation than a wrecking ball.

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February 28, 2007 at 09:36 AM | Permalink

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