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July 29, 2013

New Slate pitch for Prez to use clemency powers to address crack sentencing disparities

Thanks to the suggestions, and insights and energy of Harlan Protass, a criminal-defense lawyer in New York and an adjunct professor at the Cardozo School of Law, some ideas expressed in this recent post concerning the President Obama's words and (lack of) actions now find expression in this new Slate commentary.  Here is how the piece, co-written by me and Harlan, starts and finishes:

President Barack Obama, commenting last week on George Zimmerman’s acquittal in Trayvon Martin’s death, remarked on “a history of racial disparities in the application of our criminal laws — everything from the death penalty to enforcement of our drug laws.”  A few months earlier, Attorney General Eric Holder similarly lamented new government data suggesting that even today “black male offenders” are sentenced to federal prison terms “nearly 20 percent longer than those imposed on white males convicted of similar crimes.”  These statements reveal that our nation’s first African-American president and first African-American attorney general are aware of serious racial discrimination in the administration of our nation’s criminal laws.  The question is what they plan to do about it?

Neither the president, nor his attorney general, has followed-up or suggested a fix for the problem.  Yet with one signature, Obama could make a remarkable difference: He could use his constitutional powers to commute the sentences of thousands of disproportionately black inmates serving excessive prison terms for crack cocaine offenses.  Put bluntly, rather than dropping occasional comments about high-profile criminal-justice incidents with racial overtones, both the president and the attorney general should make a focused and sustained effort to redress longstanding criminal justice disparities....

Back in 2009, Holder famously described us as a “nation of cowards” in dealing with race issues.  And while both Holder and the president seem to have the courage to speak about high-profile cases, they have yet to show the fortitude and focus needed to turn high-profile controversies into constructive opportunities.  If President Obama is genuinely committed to addressing racial disparities in the enforcement of our criminal laws, he can grant clemency today, and then make a sustained commitment to addressing these issues throughout his second term.  If he fails to do so, he can, justifiably, be called our nation’s “Coward-in-Chief” where race is concerned.

July 29, 2013 at 06:54 PM | Permalink

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Comments

right and Bill Otis and federalist and Karl Rove and the Republicans would scream and howl and and would hold it over every Democrat forever. Get real.

Posted by: observer | Jul 29, 2013 7:46:01 PM

Doug --

I'm still not sure whether you intend to be saying that race should be considered by the President in decisions whether to grant clemency. Are you? Also, should race be considered by judges in handing down sentences to begin with? If it should be considered, how much weight should it have? Should judges be required to consider race, or just allowed? Should judges who consider white people superior be allowed to factor that into sentencing? If Judge A considers race, while Judge B across the hall does not, would defendants in the respective courtrooms have Equal Protection challenges available to them?

Lots of questions arise when one makes an explicitly racial pitch about sentencing and clemency.

Posted by: Bill Otis | Jul 29, 2013 8:37:54 PM

observer --

I don't know what Karl Rove thinks, but you might want to ask Mrs. Bias about how wonderful crack and crack dealers like Brian Tribble are, and get back to me.

Thanks.

Posted by: Bill Otis | Jul 29, 2013 8:44:01 PM

The crack hysteria back in 1986 was fueled by incorrect assertions and beliefs, like the one asserted by Bill Otis above! Len Bias died from snorting POWDER COCAINE, not crack. I will give Bill a semi-pass on this one because he is usually factually correct, but in this one he is 100% wrong.

Posted by: Kelly | Jul 30, 2013 11:48:12 AM

Wake me up when Messrs. Obama and Holder are willing to talk about the disparate racial impact of the federal gun laws. On the one hand, the racial-disparity talking point is one the Administration itself endorsed for crack sentencing reform, so it's perfectly legitimate to ask for their deeds to match their rhetoric. On the other hand, there are substantial questions about the excessiveness of sentencing for certain offense categories currently statistically dominated (in the federal system, at least) by non-Hispanic white defendants, e.g. meth cases and child porn cases, so making but-what's-the-demographic-angle the sine qua non of public discourse about sentencing reform may be a counterproductive strategy for the medium and long term.

Posted by: JWB | Jul 30, 2013 12:52:44 PM

@JWB:
The worst about is meth is actually quite a bit.

FSA added a 2 level increase for running a drug house. You can't make meth without having or storing the chemicals or in the building.

The conversion of psuedo is 5 times higher than meth. Not 100% pure meth. So if the meth they GOT charged for wasnot pure meth, how does it justify making the psuedo that they most likely didn't get caught with convert to 5 times of the end product..(others testify on shopping trips is all it takes, fabricate whatever the AUSA needs to get them to the next higher Level, done everyday in America)
Its not valid to say they are cracking down on manufacturing. They guy who cooked his batch last night, gets 20% conversion to MARY jane EQUIV...If they made pure meth, it converts to 50% of what pure meth does..

FSA also adds 2 levels if threats were made.. All that has to be done is for another to tell the AUSA, yes he said he was going kick my @ss across town. Whether it was in jest or not, Bingo. End result a very "Handsome Sentence" for 3-4 enhancements...

Posted by: MidWest Guy | Jul 30, 2013 2:17:48 PM

Berman and Protass: " These statements reveal that our nation’s first African-American president and first African-American attorney general are aware of serious racial discrimination in the administration of our nation’s criminal laws."

Were you guys hit on the head and suffer mutual amnesia?

This "serious racial discrimination" was originally pushed for HARD by the black community, including notable black preachers who were watching their communities crumble under their feet because of crack. At the time, NOT supporting it was considered racist by many, who saw it as being content to watch black kids die.

Then in 1995, the USSC pushed for equal treatment of crack and powdered cocaine, only to be overturned by legislation supported by Janet Reno and signed into law by the REAL first black President, Bill Clinton.

Stop the race baiting already. There was no racism involved in the "administration of our nation's criminal laws." The law may very well be misguided and even result in unfair outcomes for blacks but that does not make it racist any more than laws against burglary are sexist because more men than women break are in prison for it.

Posted by: TarlsQtr1 | Jul 30, 2013 2:30:33 PM

Kelly --

The initial reports from the emergency room doctors were that he had ingested crack cocaine. Nonetheless, having jogged my memory, I think you are correct. The evidence came out later that he had been snorting lines of cocaine, meaning that it was very likely powder, not crack.

I appreciate the correction. I would nonetheless note that (1) Bias's death (the most prominent among many, many others) debunks the "drugs are victimless" narrative I see again and again here, and (2) crack was and remains more dangerous than even the lethal powder that Bias took, accounting for the fact that Congress, with a big bi-partisan consensus, has now adopted a ratio that still treats crack much more seriously.

Posted by: Bill Otis | Jul 30, 2013 2:35:21 PM

Well Bill, I don't want to beat a dead horse, but you are wrong again. I checked to make sure that what I read almost 20 years ago was correct (thank goodness for the internet). I am going to quote directly from the Commission's 1995 Crack Report, and as you can see, the major phrase to be ingested (pun intended) is "the method of cocaine ingestion that killed Bias was not known at the time of his death." The emergency room doctor said he "PROBABLY died of free-basing cocaine" which can be done by powder OR crack cocaine:

Another example is the coverage surrounding the death of Len Bias in June 1986. Bias died of cocaine intoxication the day after he was the second player drafted in the National Basketball Association's college draft in 1986. The method of cocaine ingestion that killed Bias was not known at the time of his death. Nonetheless, following Bias's death, newspapers across the country ran headlines and stories containing a quote from Dr. Dennis Smyth, Maryland's Assistant Medical Examiner, that Bias probably died of "free-basing" cocaine. Newspapers that ran such headlines included the Los Angeles Times, USA Today, the Chicago Tribune, The Atlanta Constitution, and the Washington Post. Dr. Smyth based his assertion on the fact that there were high concentration levels of cocaine in Bias's bloodstream. The previous week, however, Dr. Yale Caplan, a toxicologist in Maryland's Medical Examiner's Office said that the test of cocaine found in the vial at the scene "probably was not crack." And Maryland's Chief Medical Examiner, Dr. John E. Smialek, stated that the evidence suggests that Bias snorted cocaine due to the residue of cocaine in the nasal passages. Dr. Smyth's assertions, however, received the bulk of the coverage.

A few weeks after Bias's death, on July 15, 1986, the United States Senate's Permanent Subcommittee on Investigations held a hearing on crack cocaine. During the debate, Len Bias's case was cited 11 times See transcript of the "Crack Cocaine" hearing before the Permanent Subcommittee on Investigations of the Committee on Governmental Affairs, United States Senate, 99th Congress. in connection with crack. Eric Sterling, who for eight years served as counsel to the House Judiciary Committee and played a significant staff role in the development of many provisions of the Drug Abuse Act of 1986, testified before the United States Sentencing Commission in 1993 that the "crack cocaine overdose death of NCAA basketball star Len Bias" See testimony of Eric Sterling before the United States Sentencing Commission on proposed guideline amendments, public comment, March 22, 1993. was instrumental in the development of the federal crack cocaine laws. During July 1986 alone, there were 74 evening news segments about crack cocaine, many fueled by the belief that Bias died of a crack overdose. Reinarman and Levine, supra note 42, at 117.

Not until a year later, during the trial of Brian Tribble who was accused of supplying Bias with the cocaine, did Terry Long, a University of Maryland basketball player who participated in the cocaine party that led to Bias's death, testify that he, Bias, Tribble, and another player snorted powder cocaine over a four-hour period. Tribble's testimony received limited coverage.

Posted by: Kelly | Jul 30, 2013 2:57:22 PM

This http://articles.philly.com/1986-07-10/news/26098045_1_crack-dealer-tv-cameras was actually the best piece of ridiculous hype in the run-up to the ill-advised '86 legislation. The crack epidemic had reached such proportions that it had spread beyond the black community and was victimizing politically-ambitious middle-aged white guys trying to pull off a publicity stunt in an election year. Clearly, Congress had to act to protect Rudy Giuliani and Al D'Amato from themselves before they ended up like poor Len Bias.

Posted by: JWB | Jul 30, 2013 3:22:44 PM

Kelly --

You're certainly a better historian than I am, at least on the Len Bias case.

I am confused, however, by your initial use of the word "hysteria." When young people are dying from overdosing, whether crack or powder, being plenty concerned about it -- and acting aggressively to curb it -- is sensible, not hysterical.

Posted by: Bill Otis | Jul 30, 2013 3:28:08 PM

JWB --

"Clearly, Congress had to act to protect Rudy Giuliani and Al D'Amato from themselves before they ended up like poor Len Bias."

Your plain implication is that Giuliani and D'Amato were snorting cocaine, and doing so in amounts that created a danger that they would have "ended up like poor Len Bias."

Do you have any credible evidence for that?

Posted by: Bill Otis | Jul 30, 2013 3:43:32 PM

Fair point, Bill. Giuliani and D'Amato were buying crack, rather than powder, so I guess it's been established that Len Bias is the wrong baseline. The story gives the amounts they purchased in dollars rather than grams, but I assume if you multiplied however many grams they bought by 100 it would probably have been a large enough amount of powder to be very medically foolhardy for them to try to consume it in a single session. (I should perhaps note that I remember seeing this publicity stunt on the NYC local tv news back in '86 and its preposterousness made an impression on me then - it's not like I've been recently digging back through the media-hype "legislative history" of the '86 statute.)

Posted by: JWB | Jul 30, 2013 4:20:45 PM

JWB --

You say (emphasis added)"... I ASSUME if you multiplied HOWEVER MANY GRAMS THEY BOUGHT by 100 it would PROBABLY have been a large enough amount of powder to be very MEDICALLY FOOLHARDY for them to try to consume it in a single session."

That sure is a lot of assuming and guessing and stretching to support your original assertion that Giuliani and D'Amato needed to be "protect[ed]" before they "ended up like poor Len Bias," i.e., dead.

Of course the major problem here is that Giuliani and D'Amato were buying cocaine as part of a (well publicized, as you point out) undercover sting, and not to consume. But you directly implied that each was a cocaine consumer -- if they weren't, there was zero prospect that they would have, as you put it, "ended up like poor Len Bias."

So the issue, stripped of the cuteness, is whether you have any evidence to support what you directly implied, to wit, that Giuliani and/or D'Amato was a cocaine user. Do you?

Posted by: Bill Otis | Jul 30, 2013 4:55:09 PM

Whether the buyer subjectively intends to consume the drugs is not an element of the offense, and some significant percentage of federal drug prosecutions involve drugs purchased by undercovers or informants without (one hopes) such intent. So a lot of people are doing substantial federal prison time for crack offenses when all they did was help the government get allegedly dangerous drugs off the street by (unwittingly) delivering those drugs to an agent of the government.

It is to be honest not quite clear to me why anyone thought that airing footage of D'Amato and Giuliani buying crack would be a good argument for enacting more draconian crack laws. But obviously someone did think that, or the whole publicity stunt would not have been conducted. For what it's worth, I thought recalling this preposterous-yet-multicultural (white buyers, Hispanic dealers) anecdote might help put the racialized aspect of the issue in perspective. The racial-disparity-focused narrative of crack sentencing is, I believe, largely driven by hindsight. There was a whole lot of non-racial stupidity and moral panic in the media and political classes in 1986 that led to the 100:1 ratio, and I would like to think that at least some of the legislators who signed on to reform in 2010 accepted that that ratio had proved in practice to be a very bad idea for any number of reasons separate and apart from the disparate racial impact.

Posted by: JWB | Jul 30, 2013 6:40:46 PM

Sadly, perhaps because of the limits of a Slate piece, you all are failing to get fully that the main point of this piece was not to assert crack/powder distinctions are "racist" or claim that drugs are good or that imprisonment is always bad. Rather the point was to highlight that Obama and Holder talk about these problems but fail to back up their talk with action to just administer the new FSA crack punishment level to folks sentenced prior to 2010.

As JWB notes, there was a near universal conclusion reflected in the votes for the FSA that the 100-1 proved "in practice to be a very bad idea for any number of reasons separate and apart from the disparate racial impact." Why not fix this "very bad idea" for those still suffering its consequences, especially given that doing so would also address the disparate racial impact that Obama and Holder are eager to lament.

In short, whether on race or other issues, do not talk the talk unless willing to walk the walk. That is the main point of this commentary.

Posted by: Doug B. | Jul 30, 2013 7:03:35 PM

Doug B.

It is a shame that your piece did not phrase it in the same way as your last post.

If you do not want accusations of racism to be the topic, do not make the accusation, especially when you completely fail to provide a history of these laws and the previous support of them in the black community.

I am not at fault because I pointed out a false (or at least entirely unsupported) premise of your piece, that these laws are racist.

Posted by: TarlsQtr1 | Jul 30, 2013 8:23:48 PM

I am laughing at Bill Otis. The "gentlemanly" thing to do would have been for you to say, "I am sorry, I was inaccurate." but instead you act arrogantly and sarcastically concede that I have a better memory (I am not a historian, nor do I play one on television, nor did I stay at a Holiday Inn Express) than you...at least on that point. Very arrogant statement.

As to your second point with my use of the word "hysteria," I stand by that word. First of all, I love how you injected powder cocaine into your reasoning why the "hysteria" was sensible. There never was media hysteria over powder cocaine, it was over the "crack epidemic", "crack babies" and other "crack (fill in the blank)" issues. Hence the 100 to 1 ratio between powder and crack cocaine. Of course we have learned that there is no such thing as "crack babies" but rather "cocaine babies"...that there is no difference in effects between the two drugs on an infant. We have realized that you can't have crack without powder and punishing the form of the same drug may not be sound policy. Though the immediate media hype was how crack was being used in the inner cities, we have learned that the majority of crack users are white, non-inner city residents.

So, thanks for the early morning laugh during my commute! Your arrogance has no boundaries. Next time YOU ARE WRONG, please just humbly admit it and move on instead of trying to make a point that fails!

Posted by: Kelly | Jul 31, 2013 6:55:56 AM

@ Kelly:

Actually, the "hysteria" was not over the "crack baby" epidemic but is going on now over these so-called "racial disparities."

Items almost never mentioned in this discussion:

-The black community leaders were overwhelmingly for these "disparities", and the Congressional Black Caucus pushed for even HARSHER crack penalties.

-Drug possession accounts for less than 2% of Federal prison sentences. We are talking about a VERY SMALL group of people.

-Only 13 states have crack sentences that are longer than powder and the disparity is much smaller than the Federal guidelines.

-The "race" view only looks at the perspective of drug criminals, not the communities that are better off with them off the streets (a reason the black communities supported these guidelines in the first place).

-Meth has the same guidelines as crack and are prosecuted Federally at almost the identical rate(5391 meth versus 5619 crack), yet no one is shedding tears for the overwhelming majority of whites who are prosecuted under them (only 2% of Federal meth defendants are black). Note that NOT A SINGLE WORD of this was mentioned in Doug's piece of legal hand wringing.

Yet, you want to claim that the 1980's was engulfed in "hysteria?"

Too funny.

Posted by: TarlsQtr1 | Jul 31, 2013 12:58:31 PM

"commute the sentences of thousands"

This will have no negative effects, of course, including in trying to do other things that can in various respects address the situation by making him seem "radical" or some such thing. Commutation of "thousands" of people very well might be great in an ideal world, but no, I don't expect radical things of that sort to be done by a moderate President.

This constant reference on this blog to the race of Obama and Holder, which comes off as a bit of a sneer, doesn't change this. The pope simply saying a few sane things about gays matters a big deal, underlining the more limited talk and yes actions of this administration helps to some degree. The desire for more a more radical President is common on blogs, and I see it includes a more moderate leaning one like this one.

Posted by: Joe | Jul 31, 2013 1:12:16 PM

Otis,

Have you no sense of decency? You have dedicated your life to advocating sadistic mandatory punishment schemes having no grounding in empiricism or justice. You mischaracterize all points in favor of considering diminishing marginal returns to punishment scale and seeking to address this country's embarrasing punitive exceptionalism as a plea to simply open all prison gates. You are enabler of populism and the idiots over sophistication, expertise, and empirics. You should know better. Shame on you.

Posted by: Mark | Jul 31, 2013 1:22:31 PM

Mark,

You made a significant error. I am the sadist. "Otis" is a Presbyterian.

PS Do you pi$$ yourself like my dog when you get that hysterical?

Just wondering...

Posted by: TarlsQtr1 | Jul 31, 2013 1:33:17 PM

TarisQtr1:
You are the first ever to acknowledge what I have been saying for yrs:
Thank You..I thought maybe part of mind was on a diff planet.

Your response:
-Meth has the same guidelines as crack and are prosecuted Federally at almost the identical rate(5391 meth versus 5619 crack), yet no one is shedding tears for the overwhelming majority of whites who are prosecuted under them (only 2% of Federal meth defendants are black). Note that NOT A SINGLE WORD of this was mentioned in Doug's piece of legal hand wringing.

Yet, you want to claim that the 1980's was engulfed in "hysteria?"

Too funny.

Taris, a long time ago I jerked your chain really hard and was rude to you...I'm sorry...Live and learn...

My response to the DOJ:
So it wouldn't be too big a jump to give whites a 2 level drop and cut the psuedo conv rate to Mary Jane equiv down a bunch. Then make it retro active....I have never heard racial comments on Meth.
But, Meth is to whites as Crack is to Blacks...Aren't whites as deserving as well...This will never have legs, falls upon closed minds.

Posted by: MidWest Guy | Jul 31, 2013 3:01:20 PM

TarlsQtr1 --

Were these guys mentioning something about "hysterical?"

Yikes.

Posted by: Bill Otis | Jul 31, 2013 6:14:09 PM

MidWestGuy --

TarlsQtr1 is one smart dude, as I see you've found out. Very few people can stay with him.

Posted by: Bill Otis | Jul 31, 2013 6:16:55 PM

Mark --

You say that I "...address this country's embarrasing punitive exceptionalism as a plea to simply open all prison gates. You are enabler of populism and the idiots over sophistication, expertise, and empirics. You should know better. Shame on you."

Gosh, Mark, you must be on to something. I'll be sure to turn myself in to the Dean for lacking sophistication and expertise. As Bluto would say, "seven years of college down the drain."

Posted by: Bill Otis | Jul 31, 2013 6:21:18 PM

Kelly --

That's some blast! Next time, you should sign your name (first and last) to be able to take credit for such a now-get-this-straight scolding. And well aimed, too, since I am indeed your servant.

Oh well. At least I gave you a fun-filled morning commute. Not all is lost!

Cheers.

Posted by: Bill Otis | Jul 31, 2013 6:27:03 PM

There was a statement that drug possession offenses account for less than 2% of federal sentences. According to the BOP, this is not true or even close, unless you are referring to some subcategory of drug offenses, like simple possession --- which would make the statement very misleading. According to the BOP, drug offenses account for 47 % of federal offenses.

http://www.bop.gov/news/quick.jsp

Posted by: Tim Holloway | Aug 1, 2013 11:09:16 AM

Tim Holloway stated: "There was a statement that drug possession offenses account for less than 2% of federal sentences. According to the BOP, this is not true or even close, unless you are referring to some subcategory of drug offenses, like simple possession --- which would make the statement very misleading. According to the BOP, drug offenses account for 47 % of federal offenses."

You misread what I said. I quote (emphasis added later):

"-Drug POSSESSION accounts for less than 2% of Federal PRISON sentences. We are talking about a VERY SMALL group of people."

I made it quite clear that I was talking about possession, not sales or trafficking, which make up the rest of the BOP number.

I would also point out that of that 2%, a considerably smaller number are probably in for crack, the subject of this thread.

In other words, my statement was not misleading at all. The poor old "guy who tried crack once and got busted for 20 years" story is mostly a myth.

Posted by: TarlsQtr1 | Aug 1, 2013 11:25:21 AM

Otis,

Tellingly you have nothing to say for your positions, and their lack of rigor, and resort to your usual pathetic attempts at sarcasm. Do you deny that you and your ilk appeal to emotions rather than reason and ignorance rather than informed analysis and empirics? If you do not, say something intelligent or quit polluting this otherwise learned blog. Why do you devote your learning to ruining lives and contributing and trying to enable the idiots and rubes favoring mass over-incarceration?

Posted by: Mark | Aug 1, 2013 3:59:53 PM

Mark --

Gosh, I guess you don't like me. Ruins my day.

P.S. My name is "Bill Otis" or "Bill" or "Prof. Otis." It won't hurt you to get some manners.

Posted by: Bill Otis | Aug 1, 2013 4:57:30 PM

Bill,

Do you answer to "Otis! My MAN!"?

Trust me that I'm smiling as I type that. Your Bluto reference has me remembering that movie.

Posted by: Def. Atty. | Aug 1, 2013 6:58:38 PM

Def. Atty. --

One of the great movies of all time. My favorite scene is the one where the 13 year-old boy exclaims, "Thank you God!"

Why wasn't that me when I was 13?

Posted by: Bill Otis | Aug 1, 2013 8:04:23 PM

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