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March 3, 2010

NY Times editorial advocates (long overdue) federal crack sentencing reform

This morning's New York Times has this new editorial about crack sentencing reform headlined "Bad Science and Bad Policy."  Here are excerpts:

The federal law that mandates harsher prison terms for people arrested with crack cocaine than for those caught with cocaine powder is scientifically and morally indefensible.  Bills to end the disparity are pending in both the House and Senate.  Democrats who worry about being pegged as “soft on crime” will have to find their backbones and push the legislation through....

The United States Sentencing Commission, which sets guidelines for the federal courts, found several years ago that more than 80 percent of those imprisoned for crack offenses were black.

The tough sentencing guidelines also drive drug policy in the wrong direction — imprisoning addicts for years when they could be more cheaply and effectively treated in community-based programs.  An analysis by Senator Richard Durbin, a Democrat of Illinois, estimates that ending the sentencing disparity could save the country more than a half-a-billion dollars in prison costs over the next 15 years.

In the House, a bill that ends the disparity has been voted out of committee but has yet to go to the floor.  The Senate bill is having trouble attracting support, including from Democrats.  It is time to finally put aside crack myths and hysteria.  This isn’t a question of being soft on crime. It is an issue of fairness and sound public policy.

March 3, 2010 at 09:06 AM | Permalink

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Comments

Finally.

The Times and the Washington Post should run a front-page story daily calling the Democrats out as the cowards they are until they finally end this travesty.

The Dems are going to lose in November anyway, what's the worry?

Posted by: Ferris Bueller | Mar 3, 2010 9:36:28 AM

Ferris, the worry is that once the "Dumb on Crime" crowd takes control in November none of the worthy legislation like this one or HR1475, the "Good Time" bill or HR 1529 the real "Second Chance Act" will ever see the light of day.

Posted by: HadEnough | Mar 3, 2010 12:58:14 PM

Strictly as a matter of logic, of course, disparity can be ended by raising the sentencing for powder to the level currently imposed for crack.

I am not proposing that, but it's true. The reason I point it out is that this debate is not really about "disparity." It's about getting lower sentences for crack dealers.

As for the racial angle taken by the NYT, it's appalling. A defendant's race could scarcely be less relevant to his treatment before the law. In my 18 years as an AUSA, not one time did I see or even hear of a black defendant being prosecuted for LSD. Does this means we were discriminating against whites by their "over-representation" in the defendant population?

What nonsense. The reason that whites comprise virtually all the LSD defendants is that, for cultural reasons the government does not control, LSD is a white drug. Crack is apparently predominantly a black drug. The answer, for both whites and blacks, is to CUT IT OUT and obey the law until you persuade Congress to change it. It's depressing, though not surprising, to see the NYT lecturing the rest of the world about morality while simultaneously shamelessly engaging in race-based huckstering.

Posted by: Bill Otis | Mar 3, 2010 3:25:28 PM

The point is DISPARITY. Raise the powder cocaine penalties or reduce the crack penalties or have the penealties for both meet in the middle. Regardless of the reason for the creation of the dispartity, at this point, it is truly a bipartisan conclusion that there is no basis for treating powder differently from crack.

Posted by: John | Mar 3, 2010 3:34:19 PM

John --

Then I take it that it makes no difference whether the equalizaiton comes about by lowering crack penalties or raising powder penalties. Is that correct?

Posted by: Bill Otis | Mar 3, 2010 3:58:19 PM

Perhaps I am not as sensitive to this but how does the editorial mentioning that the Sentencing Commission (which is well known for being soft on crime) says "that more than 80 percent of those imprisoned for crack offenses were black" amount to shamelessly engaging in race-based huckstering.

LSD prosecutions of black people...lol...now that is greatness. How the heck would you know if you never prosecuted the white man for his "white drug"?

Here are the stats from the Sentencing Commission from the Eastern District of Virginia where you practiced:
Fiscal Year 1995
LSD prosecutions 1 - Crack prosecutions 183
Fiscal Year 1996
LSD prosecutions 2 - Crack prosecutions 158
Fiscal year 1997
LSD prosecutions (so small its not listed) - Crack prosecutions 276
Fiscal year 1998
LSD prosecutions (so small its not listed) - Crack prosecutions 293
Fiscal Year 1999
LSD prosecutions (so small its not listed) - Crack prosecutions 269
Fiscal Year 2000
LSD prosecutions (so small its not listed) - Crack prosecutions 301

You get the picture. Of course I am probably just engaging in some shameless race-based huckstering.

Posted by: Jason | Mar 4, 2010 10:45:01 AM

Raising the powder penalties to make them as absurd as the crack ratio is the same as deciding after you've lost a foot (perhaps you were captured by the "Saw" guy) to chop the other one off so your legs match.

Five years for crack valued at less than $200? Forget disparity, what about WASTED TAX DOLLARS to prosecute petty friggin' offenses?

Bill, I like you, but when you start talking about crack, or worse, marijuana, I get the sense that you have signed some superty-secret DOJ contract that states you have to support idiotic past policies or be shipped to Gitmo for testicular shocks.

Posted by: Ferris Bueller | Mar 4, 2010 5:20:50 PM

Jason --

Nice job looking at the trees and ignoring the forest. I'll just note that (1) I never purported to be talking about JUST the Eastern District of Virginia; (2) you don't deny that virtually all LSD defendants are white; and (3) the reason that they're virtually all white has to do with their behavior, not their race.

Ditto for crack offenses. The tacit suggestion is that crack prosecutions are nudged along by a plan to "get" blacks. In fact, the "overrepresentation" of blacks in that particular category of drugs is a product of behavior, not the racism of federal prosecutors.

Since you seem to be interested in my work in EDVA, however, you might want to take a look at United States v. Olvis, 97 F.3d 739 (4th Cir. 1996). My colleagues were on the receiving end of this same tired, phony racism complaint. I represented them in the Fourth Circuit. See for yourself what the Court thought.

Incidentally if you don't believe me that the supposed racism of federal prosecutors is a phony charge, ask the Number One federal prosecutor, Eric Holder.

Posted by: Bill Otis | Mar 6, 2010 1:05:10 AM

Ferris --

Actually, it was a lifetime vow of poverty. Still, there was one good thing about working for the feds: Your health insurance, though expensive, carries over into retirement. I just hope this monstrosity of a healthcare bill doesn't renege on that promise.

Posted by: Bill Otis | Mar 6, 2010 1:12:05 AM

Bill,

"(1) I never purported to be talking about JUST the Eastern District of Virginia; "

Ok then lets look at it nationally. From FY 1995 to FY 2000 there were 27,293 federal prosecutions for crack cocaine while there were 176 prosecutions for LSD.

"2) you don't deny that virtually all LSD defendants are white."

Yes I agree and you don't deny 80% of all crack defendants are black. Nor do you deny that the office you were in only prosecuted 3 people for LSD, but prosecuted 1480 people for crack. I am not saying its racism, I am just saying.

"(3) the reason that they're virtually all white has to do with their behavior, not their race."

Yes and the reason that AUSA's nationally prosecuted 27,793 people for crack and only 176 for LSD has to do with the prosecutor's behavior, not their race...we hope.

Believe me, I am not interested in your work, but I am just pointing out the flaw in your comparison. The NYT wasn't engaged in shameless race-based huckstering when it states, "The United States Sentencing Commission, which sets guidelines for the federal courts, found several years ago that more than 80 percent of those imprisoned for crack offenses were black." It is simply stating a known fact.

Posted by: Jason | Mar 8, 2010 10:49:48 AM

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