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March 13, 2012

Notable comments on sentencing policy reform from AAG Breuer

This DOJ release, headlined "Assistant Attorney General Lanny A. Breuer Speaks at the Benjamin N. Cardozo School of Law," provides the text of a speech given today by the head of Justice Department's Criminal Division. Intriguingly, the text includes a lot of sentencing reform discussion and merits a full read.  These notable passages seemed especially worth highlighting:

Although the Criminal Division’s primary mission is to investigate and prosecute crime, because we are in Washington, D.C., the division also plays a unique role in the development of criminal law policy. And I consider it to be a critical aspect of the Division’s work to advocate for reforming those aspects of the criminal justice system that we view as not working, or in need of improvement....

Today, I want to tell you about one example in particular, involving sentencing policy....

Twenty-six years ago, in the Anti-Drug Abuse Act of 1986, Congress instituted a stringent sentencing policy that created, among other things, an extreme difference in sentencing policy for crack cocaine and powder cocaine offenses....

Data compiled by the U.S. Sentencing Commission indicated that, among other effects, the extreme disparity in sentences for crack and powder cocaine offenses had a disproportionate impact on African Americans.  For example, in 2006, according to the commission, 82 percent of individuals convicted of federal crack cocaine offenses were African American, while just 9 percent were white.

As a result, the crack and powder cocaine regime came to symbolize a significant unfairness in the criminal justice system, and the Sentencing Commission and others began advocating many years ago for the 100:1 ratio to be reduced.  But it was not until 2010, when President Obama signed the Fair Sentencing Act, or FSA, into law that something was done about it.

Early in this administration, the Justice Department began advocating to completely eliminate the disparity in crack and cocaine sentencing, and reduce the ratio to 1:1. Indeed, days after I joined the Justice Department, in 2009, I was proud to testify before Congress on behalf of the administration in favor of eliminating the disparity.

The FSA reduced the ratio from 100:1 to 18:1. In doing so, it did not go as far as we had urged. But the act was nevertheless hugely important, going a long way toward eliminating the appearance of racial bias in the sentencing system.

Of course, our work in the area of sentencing is not done.  As I’m sure many of you know, the U.S. Sentencing Guidelines went into effect in 1987, prescribing specific sentencing ranges for particular crimes, depending upon the defendant’s criminal history and other factors.  In 2005, however, the U.S. Supreme Court decided in the case of Booker v. United States, that federal judges could treat the sentencing guidelines as advisory only. And there is evidence that unwarranted sentencing disparities have been increasing in recent years. One area among others in which we have seen significant such disparities is financial fraud.  With increasing frequency, federal district courts have been sentencing fraud offenders -- especially offenders involved in high-loss fraud cases -- inconsistently and without regard to the federal sentencing guidelines.  For example, we have seen defendants in one district sentenced to one or two years in prison for causing losses of hundreds of millions of dollars while defendants in another district receive 10 or 20 years in prison for causing losses a fraction of the size.  This is another challenge in sentencing that we will need to address in the coming months and years.

The Fair Sentencing Act is just one example, albeit a very important one, of many I could give you where Criminal Division lawyers and others in the department have worked hard to advance needed legislation and reform an aspect of the criminal justice system in need of repair.  Your own Benjamin Cardozo once said, “Justice is not to be taken by storm. She is to be wooed by slow advances.”  In Washington, certainly, change rarely comes quickly, and because it is always the product of compromise, usually no one gets exactly what they were hoping for.  That was indeed the case with respect to the Fair Sentencing Act.  At the same time, when you see what is involved in moving a dramatic piece of legislation, or reforming something as fundamental as sentencing policy, such “slow advances” represent enormous achievements.

I adore the notion of seeking to "woo" Lady Justice though slow advances; extending the metaphor, I think we might well view debates over sentencing reform as a product of a number of different suitors pitching woo at Lady Justice.

March 13, 2012 at 07:36 PM | Permalink

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"especially offenders involved in high-loss fraud cases -- inconsistently and without regard to the federal sentencing guidelines. For example, we have seen defendants in one district sentenced to one or two years in prison for causing losses of hundreds of millions of dollars while defendants in another district receive 10 or 20 years in prison for causing losses a fraction of the size."

Could that be because the fraud guideline is broken? Or that "loss amount" is not a good indicator of culpability?

If you are seeing "disparity" with regard to a particular crime and/or guideline, I think it's more plausible there's a problem with the guideline rather than a problem with the judges. It's just so easy to proudly proclaim a fight against "unwarranted disparity," but so much more difficult to truly explain what's really going on.

Posted by: DEJ | Mar 13, 2012 8:37:24 PM

It is only lawyers who see justice as a "lady".

"What is the law?" asked the curious neophyte as he sat down at the table. Said the old professor, as he looked up from his pottage, "the sparkle of a bangle on a dress of a whore. That is law."

Posted by: justmeagain | Mar 13, 2012 9:01:10 PM

Crack wasnt and still isn't the only racial disproportionate item. Psuedo is 5 times higher than meth, the feds give the ratio of pure meth.. Even if plain meth is found, when psuedo is found...zit doesn't make sense than the main ingredient that is broken down and has lose, is 5 times higher than the end product.. Whites are in the area of 70%, while rest is mexican.. Kicker is 25% of the mexicans are illegal aliens..

So when will the whites see a break, 26 yrs from now....Need to charge the ratio of psuedo based on the the drug thst was found.. If they were making crystal then psuedo is half its rastio...But if roughly %50 pure meth was found, then the psuedo should no more than the meth ratio...One could cook the entire batch and get a substantial less sentence
than if caught with psuedo...Doesn't make any sense. There is no big meth epidemic anymore.

Crack is to blacks as meth is to whites.....You may not like to hear this but the truth is too easily buried..

Posted by: Midwest Guy | Mar 14, 2012 10:36:18 AM

I agree with DEJ. Perhaps that was not the right metric to use.

Posted by: Lee | Mar 14, 2012 12:23:36 PM

i have to agree. a drug is a drug is a drug... the time for each should be the same. What should matter is HOW MUCH! if gang related, gun, reoffence that sort of thing!

Posted by: rodsmith | Mar 14, 2012 6:46:21 PM

rodsmith - whats the odds the Bill would agree? 10 trillion to 0

Posted by: Midwest Guy | Mar 15, 2012 11:25:39 AM

he might suprise you. There are any number of things we do agree on completly!

Posted by: rodsmith | Mar 15, 2012 4:43:22 PM

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