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August 24, 2013

AG Holder's speech at "Dream March" stresses fairness and "equal justice" (... as federal crack prisoners keep waiting)

Gty_martin_luther_king_obama_tk_130116_wgI just got an e-mail providing this link to the text of Attorney General Eric Holder's prepared remarks which he delivered today in Washington DC as part of the "National Action to Realize the Dream March." Here are some excerpts that caught my eye (with my emphasis added):

It is an honor to be here — among so many friends, distinguished civil rights leaders, Members of Congress, and fellow citizens who have fought, rallied, and organized — from the streets of this nation, to the halls of our Capitol — to advance the cause of justice.

Fifty years ago, Dr. King shared his dream with the world and described his vision for a society that offered, and delivered, the promise of equal justice under law.   He assured his fellow citizens that this goal was within reach — so long as they kept faith with one another, and maintained the courage and commitment to work toward it.  And he urged them to do just that.  By calling for no more — and no less — than equal justice.  By standing up for the civil rights to which everyone is entitled.  And by speaking out — in the face of hatred and violence, in defiance of those who sought to turn them back with fire hoses, bullets, and bombs — for the dignity of a promise kept; the honor of a right redeemed; and the pursuit of a sacred truth that’s been woven through our history since this country’s earliest days: that all are created equal....

But today's observance is about far more than reflecting on our past.  Today’s March is also about committing to shape the future we will share — a future that preserves the progress, and builds on the achievements, that have led us to this moment.  Today, we look to the work that remains unfinished, and make note of our nation's shortcomings, not because we wish to dwell on imperfection — but because, as those who came before us, we love this great country.  We want this nation to be all that it was designed to be — and all that it can become. We recognize that we are forever bound to one another and that we stand united by the work that lies ahead — and by the journey that still stretches before us.

This morning, we affirm that this struggle must, and will, go on in the cause of our nation’s quest for justice — until every eligible American has the chance to exercise his or her right to vote, unencumbered by discriminatory or unneeded procedures, rules, or practices.  It must go on until our criminal justice system can ensure that all are treated equally and fairly in the eyes of the law.  And it must go on until every action we take reflects our values and that which is best about us.  It must go on until those now living, and generations yet to be born, can be assured the rights and opportunities that have been too long denied to too many.

The America envisioned at this site 50 years ago — the “beloved community” — has not yet been realized.  But half a century after the March, and 150 years after Emancipation, it is finally within our grasp.  Together — through determined effort; through a willingness to confront corrosive forces tied to special interests rather than the common good; and through devotion to our founding documents — I know that, in the 21st century, we will see an America that is more perfect and more fair....

To AG Holder's credit, back in April 2009, his Justice Department went to Capitol Hill to tell Congress that the current Administration then believed (and still believes?) that a commitment to fairness and equal justice required completely eliminating the differential treatment of crack and powder cocaine in federal sentencing law.  But since that time, the Obama Administration has suggested it is content with Congress's decision to merely reduce — from 100-1 to 18-1 — the differential treatment of drug quantities for crack and powder.  Moreover, this Administration has made no real effort to help those sentenced before the passage of the Fair Sentencing Act to get any fair or equal benefits from the new law's reduced crack sentencing terms.

Indeed, from its initial advocacy to limit "pipeline" cases from getting the benefit of the FSA's reduced mandatory minimums, to its continued disinclination to seek to help folks still serving excessively long sentences based on the pre-FSA 100-1 crack laws, the Holder Justice Department's actions suggest they do not really think a commitment to fairness and equal justice calls for doing much of anything to help crack offenders sentenced before August 2013. 

Please understand that I know full well the range of forcefully legal arguments and political considerations which can be made to justify preventing thousands of federal prisoners still serving excessively long crack sentences from getting any benefits from the FSA.  But I also know full well that if Dr. King were alive today, he surely would be advocating forcefully for this Administration to live up to its commitment to fairness and equal justice and to do something to help those federal prisoners still languishing in prison based on the unfair and unequal sentences required by the pre-FSA crack laws.

Indeed, with current federal prisoners in mind, I think we still are awaiting the day that Dr. King dreamed of and spoke about when he ended his speech in this way:

[I dream of] the day when all of God's children will be able to sing with a new meaning, "My country, 'tis of thee, sweet land of liberty, of thee I sing. Land where my fathers died, land of the pilgrim's pride, from every mountainside, let freedom ring."

And if America is to be a great nation this must become true.  So let freedom ring from the prodigious hilltops of New Hampshire.  Let freedom ring from the mighty mountains of New York. Let freedom ring from the heightening Alleghenies of Pennsylvania!

Let freedom ring from the snowcapped Rockies of Colorado!  Let freedom ring from the curvaceous slopes of California!

But not only that; let freedom ring from Stone Mountain of Georgia!  Let freedom ring from Lookout Mountain of Tennessee!

Let freedom ring from every hill and molehill of Mississippi. From every mountainside, let freedom ring.

And when this happens, when we allow freedom to ring, when we let it ring from every village and every hamlet, from every state and every city, we will be able to speed up that day when all of God's children, black men and white men, Jews and Gentiles, Protestants and Catholics, will be able to join hands and sing in the words of the old Negro spiritual, "Free at last! free at last! thank God Almighty, we are free at last!"

I suppose we all need to just keep dreaming, while still stressing the "fierce urgency of now."

August 24, 2013 at 01:16 PM | Permalink

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Comments

I was going to write a longish post about the ridiculousness of Eric Holder yapping about equal justice (because, you know, Marc Rich, a fugitive, only got what was available to the rest of us). But why. Anyone with any sense of propriety would be thoroughly embarrassed by this dishonest hack as Attorney General. And those who aren't are not worth my time.

Posted by: federalist | Aug 24, 2013 3:50:10 PM

With all due respect, this may be the silliest sentence every written by a very serious man: " But I also know full well that if Dr. King were alive today he surely would be advocating forcefully for this Administration to live up to its commitment to fairness and equal justice and to do something to help those federal prisoners still languishing in prison based on the unfair and unequal sentences required by the pre-FSA crack laws."

You don't "know full well" any such thing.

It is at least equally likely that Dr. King would have offered full support for these disparities when they were being debated, like most of the leaders in the black community. Of course, that would not exclude him from being against them NOW but I believe that the man had enough integrity to at least admit his (and the black community's) complicity in getting them established rather than making it an issue of racism and cloaking it in the aura of "Civil Rights."

Repeatedly implying the same thing (playing the race/civil rights card) is downright shameful on the part of this administration and Professor Berman. Once again, the fact that meth has the same disparity, is prosecuted at roughly the same rate, and overwhelmingly puts whites in prison never crosses your keyboard.

Posted by: TarlsQtr1 | Aug 24, 2013 11:39:03 PM

There are only three certainties:

1. Death.

2. Taxes.

3. That over the next few days, every advocate from coast to coast is going to be saying, "If Martin Luther King were alive today, he'd be fighting for ______." Then just fill in the blank with the advocate's favorite cause.

Posted by: Bill Otis | Aug 25, 2013 12:22:16 AM

The last comment is evenhanded -- advocates come in all sizes, and these days MLK is as likely to be cited by liberals as conservatives for some cause. But, the temperate nature of Bill Otis is well known on this blog. I mean that in a good way. I just am saying it somewhat "elliptically."

BTW, "White women sent to Ohio prisons in record numbers, reports say" was a recent post on this blog. Was it written by a guest contributor?

Posted by: Joe | Aug 25, 2013 3:02:49 AM

"But I also know full well that if Dr. King were alive today he surely would be advocating forcefully for this Administration to live up to its commitment to fairness and equal justice and to do something to help those federal prisoners still languishing in prison based on the unfair and unequal sentences required by the pre-FSA crack laws."

To elaborate on Tarls' point--it's my understanding that MLK Jr. didn't have a whole lot of sympathy for black criminals. Doug, care to re-evaluate your comment?

Posted by: federalist | Aug 25, 2013 9:31:32 AM

What about the future black victims of these gangbangers, and organized criminal cartel members, including the property owners of ghetto property seeing massive losses of value, as these ultra-violent predators are loosed by the heartless lawyer?

And how does one know if a criminal is non-violent, since the adjudicated charge is fictional? Try setting up shop in the wrong block, and see what happens.

Posted by: Supremacy Claus | Aug 25, 2013 10:05:05 AM

I appreciate all the comments, and I believe TarlsQtr1 is wise/justified in making sure we recall that leaders in the black political and civil rights community played a significant role in the tough-on-drug-crime movement that led to, inter alia, the Rockefeller drugs laws in NY in the 1970s and the extreme crack sentencing scheme for federal offenses in the 1980s.

But the black political and civil rights community has now seen the impact of these laws for decades, and it has come to the wise/justified view the these mandatory/tough sentencing laws (1) do not appear to have significantly reduced drug use/abuse, and (2) clearly have had some significantly harmful impacts on some communities of color. That is why most, if not all, modern black civil rights leaders have called for repealing/reforming the laws in some way. It is also why a disproportionately WHITE Congress voted overwhelmingly to lower federal crack sentences and allow, roughly speaking, 75% of old crack offenders to benefit retroactively from the reduced federal crack sentences in the FSA.

My nuanced point, which I still maintain (and which none of the comments above really address), is that MLK today surely would be urging --- like many other members of the modern civil right community --- that AG Holder and Prez Obama not completely ignore the 25% of prisoners who have not gotten any benefit from the decision by a disproportionately WHITE Congress to lower federal crack sentences.

I would be eager to hear of any modern civil rights leaders --- or really anyone --- who vocally supports for equal justice/fairness (and not just finality) reasons requiring 25% of (mostly less serious) old crack offenders to still serve out now-repeals sentencing terms while 75% of (mostly more serious) offenders have gotten their old crack sentences reduced due to the FSA. If/when folks point me to such claims based on equal justice/fairness considerations rather than finality concerns, I will THEN have reason to reconsider my assertion in this post that "Dr. King, [if] alive today, surely would be advocating forcefully for this Administration to live up to its commitment to fairness and equal justice and to do something to help those federal prisoners still languishing in prison based on the unfair and unequal sentences required by the pre-FSA crack laws."

Understand, everyone? I know folks like things in black and white when we talk about race, but I am trying to make a nuanced point here. I hope this explanation makes that point (which I still stand by) more clear for all.

Posted by: Doug B. | Aug 25, 2013 11:51:29 AM

Finality is a parochial lawyer concern, that limits rent seeking by ending the cost of endless disputes on the taxpayer clock. It is a marginal public interest.

The main public interest is to incapacitate these murderous savages for as long as possible. The adjudicated charge is fictitious. The mandatory guideline is to lengthen sentences to protect the physical safety of the public, especially minority crime victims.

By analogy, Prof. Berman would miss the point of Al Capone's income tax violation. It was not because he failed to hand in paper work that he went to federal prison. It was because he killed 100's of people, and the St. Valentine's Day massacre, that was the last straw with the fed up public. Why can't a proficient philosophy student understand the person is the problem? Why? Because the criminal generates more government make work jobs from the devastation he does on the outside of prison, far more than any he can from inside prison.

Posted by: Supremacy Claus | Aug 25, 2013 1:10:19 PM

A few points.

1. Professor Berman, it is very difficult to take your assertion of a "nuanced view" seriously when it was you that said you "full well know" what MLK would say or think. MLK WAS a very nuanced man and it is you who is operating in "black and white" thinking. To make that charge against those calling you on it takes a lot of chutzpah.

2. You seem to confuse the 1960's Civil Rights movement with the race hustlers of today. The only thing Al and Jesse have in common with MLK is melanin. Alveda King is much closer to the spirit of MLK than these mountebanks. I would note that her reaction to the Trayvon Martin case was also VERY different than those you would consider "modern civil rights leaders." Although I do not know Alveda's stance on the crack issue, I suspect that she, like her uncle, would at least acknowledge the role of the black community and not cloak this in "race".

3. Again, this is not a race issue, as much as you want it to be. That is why you STILL cannot allow the word "meth" to cross your keyboard. Your call for fairness IS a legitimate argument. Your "Appeal to the Race Wars" is beneath you and what little is left of the civil rights movement.

Posted by: TarlsQtr1 | Aug 25, 2013 2:27:15 PM

I normally don't interject politics into this forum as I strictly rely on Constitutional solutions as opposed to "conservative/Republican" vs "liberal/Democrat". In this case, though, there are factors that go well beyond the legal sphere of which is referred to by Prof. Berman. In fact, the lack of a strong moral conscience in many black youths lives (most notably through lack of strong family structure) have led to the point where the current racial divide is permanent UNTIL the Democratic Party returns to the center of the political spectrum. With an emphasis on government assistance, both in economic and societal aspects, coupled with an easy race card argument, the racial divide will NEVER be bridged until either the Democratic Party is beaten by the conservatives, or when the Democrats have taken this country so far to the left that armed revolution will trump law.

I don't mean to be mealy-mouthed, but racial tensions will only solidify and get worse over time unless the change happens.

Posted by: Eric Knight | Aug 25, 2013 2:29:02 PM

TarlsQtr1 nails it. The idea that race-hucksters and hoax-promoters like Al Sharpton (i.e., a "leader of the modern civil rights movement") bears any moral resemblance to M.L. King is outlandish. And since when did Martin Luther King embezzle hundreds of thousands to buy himself Rolex watches, like Jesse Jackson Jr.?

I'll ask just one question out of many I could to illustrate this point: Does anyone think that Martin Luther King would be leading the charge for the feds to run George Zimmerman through the ringer twice after Zimmerman was correctly (although to some disappointingly) acquitted in state court?

Good grief.

Posted by: Bill Otis | Aug 25, 2013 2:53:44 PM

I don't know, but even if many blacks (including one Manhattan congressman in particular) supported heavy prison time, it is unclear MLK would -- long prison sentences is not the ideal "Christian" approach many ministers would support, especially for many kinds of drug offenders.

Prof. Berman's statements as to the changing understanding of the effects are well taken and as usual it is appreciated when he steps in and responds, especially when his bona fides directly are challenged. BTW, again, "White women sent to Ohio prisons in record numbers, reports say" was a recent post on this blog. Was it written by a guest contributor? His "keyboard," unless there was a guest contributor writing under his name, included this excerpt:

"I tend to believe that judges in the more rural counties tend to sentence people more harshly," said Mike Huff, a former assistant Athens County prosecutor who now handles criminal defense work. "In rural counties, it is a big deal when someone gets caught making methamphetamine or selling drugs. People talk about it. They don't want that stuff around. Small newspapers and radio stations report it. It's big news, and judges realize that."

Posted by: Joe | Aug 25, 2013 3:08:01 PM

As to "race hucksters" -- there always were on any side.

The major alternative black voice to MLK was Malcolm X. His inspiration was largely someone who spoke of "white devils," etc., though eventually (before he was assassinated, most likely by someone upset he challenged such racism) shifted to a more united vision, especially after a pilgrimage to Mecca.

Al Sharpton and to a less extent Jesse Jackson is but one breed of civil rights activist. There remains a diverse range of black leaders today, some with a conservative ideology. Anyway, Malcolm X is an interesting case. He was a criminal who cleaned up his life. But, if he was just warehoused in prison as would be quite possible under various drug laws, that wouldn't have been possible. That is the goal here -- not "coddling criminals," but treating the crime and what is behind it wisely.

Posted by: Joe | Aug 25, 2013 3:18:14 PM

Joe --

"The major alternative black voice to MLK was Malcolm X."

Gads, Joe, you are showing your age. Not that I'm in any position to complain about it.

"His inspiration was largely someone who spoke of "white devils," etc., though eventually (before he was assassinated, most likely by someone upset he challenged such racism)..."

He was almost certainly assassinated by rival black leaders who were bitter toward and jealous of him.

"Al Sharpton and to a less extent Jesse Jackson is but one breed of civil rights activist."

They are the two leading ones by leaps and bounds, and they are, as TarlsQtr1 correctly says, shameless race hucksters.

BTW, the overwhelming reason Malcolm X became the person he was (gutsy and wonderfully well-spoken, if ideologically extreme to say the least), was that he understood that he was responsible for, and had to take control of, his own life and decisions.

He wasn't "rehabilitated" and would furiously have rejected the idea that he was. He took a sober look at his life and changed it, from force of will and conscience.

That is the real path, in the long run, to overcoming crime. We know now that government rehab programs usually fail. What succeeds is what Malcolm X found -- the will to change yourself. With that, many things are possible. Without it, nothing worthwhile is.

Posted by: Bill Otis | Aug 25, 2013 4:13:42 PM

Hey, Doug.

Let's play WWMLKD with this. The Obama/Holder Justice Department sues to keep poor black kids in crappy public schools. Where are all of your "modern civil rights leaders" on this issue?

http://www.foxnews.com/politics/2013/08/25/justice-department-tries-to-block-louisiana-school-voucher-program/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+foxnews%2Fpolitics+%28Internal+-+Politics+-+Text%29

Posted by: Tarlsqtr1 | Aug 25, 2013 11:44:11 PM

Though I know Tarlsqtr1 and Bill and others are eager to beat up on the likes of Al Sharpton and the Jacksons, this post was not about them nor was it really about race (or George Zimmerman or pubic schools or Malcolm X). Rather, as the title of the post highlights, and my follow-up comment was meant to stress, it is about fairness and equal justice for ALL crack offenders -- both black and white -- whose sentences were based on the now-repealed 100-1 crack/powder ratio. (Note that I used neither the term race nor black in my original post. Rather, I repeated and stressed the terms used by AG Holder in his speech: fairness and equal justice.)

-------
Side Note to Tarlsqtr1: On the topic of meth, I view most federal drug sentences, for whites and blacks, especially when no violence was involved, to generally be too long and counterproductive to long-term public safety and public health goals. I suspect you know this as a regular reader. The "nuanced" difference here is that Congress has not yet repealed nor reduced any mandatory minimums (or required guideline changes) to meth sentencing terms. (I do wish Congress would reduce meth guideline sentences and eliminate all drug mandatory minimums, do you?)

If/when Congress passes the Leahy/Paul bill and/or the Durbin/Lee bill, you can be confident that I will be calling for AG Holder and others legal leaders to seek to apply these reforms fairly and equally to all drug offenders, both white and black. And, again, that is the "nuanced" point here: All future and most past crack offenders have gotten the benefits of new reduced crack sentences under the FSA, but a percentage have not.
-------

As I said before, I am still waiting to find a single claim by ANYONE --- white or black --- that the interest of fairness and equal justice (as opposed to finality) call for denying benefits of the FSA to only some (less serious) older crack offenders still serving prison terms under the now-repealed 100-1 crack/powder ratio.

I hope Tarlsqtr1 and Bill and others will actually speak to the issue of this post: Do you know of ANYONE claiming --- or can you yourselves explain how --- the interest of fairness and equal justice provide support for the FSA benefiting only some (more serious) older crack offenders? Has any advocate --- white or black, conservative or liberal --- made a substantive "fairness/equal justice" argument for requiring only some (less serious) older crack offenders to have to serve out prison terms under the now-repealed 100-1 crack/powder ratio (which Congress obviously considers excessive based on the new terms of the FSA law in place today)?

Until I see a substantive fairness/justice argument (rather than a finality/crime control claim) for keeping excessive repealed sentences in place, I feel confident asserting that today MLK --- like everyone else, white and black --- would think fairness and equal justice call for allowing everyone sentenced under now-repealed laws to be eligible to benefit from the new "Fair Sentencing Act."

Please understand, I have no interest via this post to make any assertion about what a modern-day MLK would say about the likes of Sharpton or the Jacksons or George Zimmerman or pubic schools or Malcolm X. But I am very interested to hear if those eager to (over)react to this post about imprisoned crack offenders can show me or make a substantive fairness/justice argument for keeping only some (less serious) old crack offenders imprisoned based on the now-repealed 100-1 crack sentencing mandates.

Posted by: Doug B. | Aug 26, 2013 9:57:53 AM

Doug, I will give my .02 on crack and meth both.
crack....I don't believe there will ever be anything done retroactively to give relief for the old school boys.
Why not?....Because they were the ones that was in the middle of the epidemic, gangs, and started the crack baby syndrome.
Is this my thoughts? Somewhat, but mostly I think its what is on the minds of Congress and the people in Power.

Meth....The whites will never ever get a break on Meth..Psuedo conv to weed equiv is 5 times higher than meth itself.
Pretty rare to make pure meth. Feds peddle psuedo is only half of meth.. Balony...half of Pure meth. If the PSR stated some meth
was found and it was converted at 1/5 the rate that there psuedo, that is my big point.. They werenot involved in PURE meth,
so whats with that huge disparity in conversion?
Its becasue the feds think they are being tougher on manufacturing, even though they are missing the boat...Those that make the stuff,
get rid of the blister packs as evidence, are charge 5 time lower that ones caught with the blister packs..
Its just that they are such a mess they have blister packs all over and when crammed in a corner, all the local boys
sign Soprano to the feds on the shopping trips and qty of psuedo bought/trip, for substantial assisstance...Its a guess and at times is
forced, so they get over the 700 klgm or next higher Level for a much longer sentence..

Like I've always said, on the flipsiest of evidence... Nothing will ever be done, because there needs to be another drug
come out and be the huge rage...Then 20 yrs after that, congress will give a 2 level drop for
the new cases, zero for the ones rotting away...Its just how the world works...
CYA prevails with the Gravy positions....It will never change, ever...

Posted by: MidWest Guy | Aug 26, 2013 10:23:06 AM

Doug --

You are really straining here.

1. "Though I know Tarlsqtr1 and Bill and others are eager to beat up on the likes of Al Sharpton and the Jacksons, this post was not about them NOR WAS IT REALLY ABOUT RACE..." (emphasis added).

It's only not about race if you don't read it. Care to look at the pictures you put at the top of it? Care to recall what's the driving force of this whole "reduce crack sentences" campaign? It's not about race?

Doug, as this post and many, many others you have put up demonstrate beyond serious argument, that whole campaign about crack sentencing is about little EXCEPT race.

2. "...it is about fairness and equal justice for ALL crack offenders -- both black and white..."

Only again and again and again, you (and the others in this campaign, like Al Sharpton (from whom you wisely distance yourself)) have pointed out that crack sentences are given grossly disproportionately to blacks, while the lighter powder sentences are given mainly to whites. And, so the argument has gone (up to now), it is this disproportion, more than anything else, that cries out for (what you view as) remediation.

3. Tarls also nails it in pointing out that you have gone after crack sentencing vastly more -- I would estimate 20 times as often -- as you have gone after meth and heroin sentencing combined.

4. I agree that you have a broader future agenda here, that being the one you identify: The reduction in sentencing for all hard drugs, to be followed by lightened enforcement, to be followed by de facto legalization, to be followed by de jure legalization. That is the libertarian (and your) wish list, is it not? If not, I will stand to be corrected. But as a longtime follower of this blog, that certainly seems to me to be where this movement wants to wind up.

5. Being a shrewd and savvy man, you know you can't get there all in one fell swoop. Hence the easiest targets first, and the ones with the most active (and politically connected, in Democratic circles) advocacy groups. That means focusing on racial resentment about crack sentencing, and there is simply no way to read your post here without knowing that that is its subject.

The subject for now, anyway. As I say, you are a far-sighted man, and, like most such men, you build on present victories (the FAIR Act and the Dorsey case) to seek future ones on the path to wholesale legalization.

Posted by: Bill Otis | Aug 26, 2013 11:04:49 AM

Is Jesse Jackson relevant at all any more? When he ran for President (a somewhat low bar given some of the candidates on both parties), maybe. Now, I never hear about him, though his son got some negative attention.

Al Sharpton has a bit of relevance, but even the Trayvon Martin thing was a lot more than about him, and he likely rode the thing as much as being a leading voice. Like him or not, someone like Booker, who is running for the U.S. Senate, or the governor of MA, or any number of other people down (again, some conservative), seem more relevant these days. Such special focus on Al Sharpton only helps his ego. It's a tad ironic. I am with Prof. Berman on not making it about him.

Posted by: Joe | Aug 26, 2013 11:44:54 AM

Doug,

I have nothing to add to Bill's excellent response.

Posted by: TarlsQtr1 | Aug 26, 2013 11:58:02 AM

Doug, your posts have raised the following point:

" Do you know of ANYONE claiming --- or can you yourselves explain how --- the interest of fairness and equal justice provide support for the FSA benefiting only some (more serious) older crack offenders? Has any advocate --- white or black, conservative or liberal --- made a substantive "fairness/equal justice" argument for requiring only some (less serious) older crack offenders to have to serve out prison terms under the now-repealed 100-1 crack/powder ratio (which Congress obviously considers excessive based on the new terms of the FSA law in place today)?'

I agree with you that despite your having repeated this query (argument)our distinguished bloggers (and I mean that seriously), still fail to address the argument. As we've all written in briefs many times, our opponents failure to address the argument should be considered an implicit concession to its merits.

Posted by: Michael R. Levine | Aug 26, 2013 12:57:13 PM

Joe --

C'mon, you're straining just like Doug is.

"Like him or not, someone like Booker, who is running for the U.S. Senate, or the governor of MA, or any number of other people down (again, some conservative), seem more relevant these days."

Really? What's the evidence for that?

If 100 adults were asked to name a living civil rights activist, who do you think they would say? The first two choices by a huge margin would be Jesse Jackson and Al Sharpton. No one else would even be close. I doubt one in a hundred would name Booker, and even fewer would name Deval Patrick.

"Such special focus on Al Sharpton only helps his ego."

The chances that Big Al reads this blog are about zip. But for however that may be, nothing said here by anyone will "help his ego," which can't get any bigger anyway.

"I am with Prof. Berman on not making it about him."

I believe you're with Doug in not WANTING to make it about him, because he and Rev. Jackson so thoroughly and embarrassingly expose the huckstering, dishonesty, and racial bullying (Mr. Acquitted, George Zimmerman, call your office) that now suffuse what used to be the civil rights movement.

When these two are in the forefront of the reduce-crack-sentences-campaign, that, of course, instantly reduces its credibility, so a pretense must be made that they don't count any more. But it's still just a pretense.

Posted by: Bill Otis | Aug 26, 2013 1:16:36 PM

Michael R. Levine --

Now you DO know how to get a rise out of me, don't you?

Here's the argument. I'll try to keep it short, for once.

1. The courts must follow a governing statute unless they hold it unconstitutional.

2. The governing statute is 1 USC 109, which has never been held unconstitutional.

3. Section 109 provides:

"The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability. The expiration of a temporary statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the temporary statute shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability."

4. That language is, obviously, written as broadly as Congress can write.

5. Having never been found unconstitutional, it must be followed by the courts.

Which is more important in maintaining the rule of law: Debatable notions of "fairness" for crack dealers, or judicial obedience to valid and longstanding statutes? Once appointed judges start walking past existing statutory law WITHOUT finding it unconstitutional, what is left of democratic rule?

Posted by: Bill Otis | Aug 26, 2013 1:55:45 PM

Michael R. Levine --

I should add one note.

The Constitution also provides the President with unreviewable power to pardon or commute a sentence. All the unfairness that you and Doug see in keeping crack dealers in for their legally imposed sentences could be remedied this afternoon by President Obama.

Indeed, he could hold a nationally televised commutation ceremony, in which he could say, in effect:

"Our country has been unfair to several hundred crack dealers now in federal prison, so I'm commuting their sentences. It's not that they're innocent. It's not that they're behavior wasn't wrong. It's not that they didn't know it was wrong, and illegal to boot. It's not that crack isn't a dangerous and addictive drug. It's not that those who wanted to make a fast buck dealing in it didn't know they would face hard federal time if they got caught. It's not that crack dealing isn't associated with considerable gun violence.

"No, it's not that. And it's not that Congress has not addressed the question whether people who got sentenced before a change in penalty should get the benefit of the change. In fact, Congress addressed exactly that. Its answer was, and remains, "no."

"What it is, is that some of my activist constituencies are really boiling about this, and I'm feeling the heat. I've also really screwed up this Syria/Egypt/Russia business, so it would be nice to have the press talking about something else for a while. I just thought you should know that." ###

Somehow, I don't think Mr. Obama is going to say anything like that, although I believe everything I've written here is correct.

Posted by: Bill Otis | Aug 26, 2013 2:15:55 PM

I am always interested to see good folks like Prof. Berman and others advocate for the early release of, or shorter prison sentences for, "non-violent" drug dealers. The argument almost always involves a claim that incarcerating these "non-violent" drug dealers in the Bureau of Prisons for substantial periods of time is ruining communities. That argument misses the mark.

The reality, of course, is that incarcerating drug dealers is not ruining communities. Rather, the drug dealers themselves are the ones ruining the communities. It has been my experience that the law-abiding citizens in drug-plagued communities want the drug dealers sent away for as long as possible. The retired truck driver who can no longer enjoy his garden because his neighbors have decided to operate a crack house wants the drug dealers sent away because they are ruining his community. The teacher who is afraid to let her children play in the yard because it is littered with dirty needles discarded by heroin addicts who buy drugs at the house down the street wants the drug dealers sent away because they are ruining her community. The motel housekeeper who fears for her life because some idiots have decided to cook meth in their motel room wants the drug dealers sent away because they are ruining her community. The ER nurse who gets his face scratched to shreds by some guy who is hopped up on bath salts wants the drug dealers sent away because they are ruining his community.

It is very easy for Prof. Berman and others similarly situated to carry the flag of the "release the drug dealers" movement. Why? Because those "non-violent" drug dealers will not be relocating from federal prison to the nice suburban neighborhoods where most of the folks who comment on this blog live. Would you folks be so quick to say "release the 'non violent' drug dealers" if you knew those drug dealers were going to take up residence right next door to you? If those "non-violent" drug dealers were going to be standing around outside your child's school? If those "non-violent" drug dealers were going to be hanging out on the street corner where your elderly mother catches the bus to her doctor's appointment?

As a matter of fact, why don't you invite one of the recently released "non-violent" crack dealers to rent a room out of your house? (I am sure the U.S. Probation Office would welcome your assistance in finding a suitable residence for a recently released drug dealer). Or, how about offering to let the "non-violent" meth cook babysit your kid? (He is probably looking for employment). I mean, these are all nice, "non-violent" people who have been trampled on and abused by an unfair judicial system full of rogue police officers and satanic prosecutors who are enforcing draconian laws that were put in place for no good reason by the elected representatives of an unenlightened citizenry.

I have read this blog for years. And, I am sick of hearing the tired refrain of "oh, the poor non-violent drug dealers, they never hurt anybody." Nonsense. Go visit your local Neonatal Intensive Care Unit, hold a crack baby or an oxycodone baby as their tiny bodies writhe with pain from the withdrawals, and then tell me about the "poor non-violent drug dealers" who never hurt anybody. Or, go sit with a family in the morgue as they identify the body of their teenage son who just overdosed on heroin that his "non-violent" drug dealer sold him. Or, go walk down the streets of a drug-riddled neighborhood and look into the empty eyes of an 80-pound prostitute who once had a promising future ahead of her until she took that first hit from a crack pipe that some "non violent" drug dealer was pushing at a high school party. As the Fifth Circuit so eloquently put it years ago, "Except in rare cases, the murderer's red hand falls on one victim only, however grim the blow; but the foul hand of the drug dealer blights life after life and, like the vampire of fable, creates others in its owner's evil image-others who create others still, across our land and down our generations, sparing not even the unborn." Terrebonne v. Butler, 820 F.2d 156 (5th Cir. 1987). Please, stop with the "non-violent" drug dealer stuff.

Posted by: How about it | Aug 26, 2013 4:53:34 PM

Just to clarify your various points, Bill, you agree with what I have co-written in Slate and have suggested here: If AG Holder and Prez Obama really care about fairness and equal justice for all crack defendants, AG Holder could (and I think should) ASAP urge his boss to use his clemency power to take care of this issue. That was the very point to this post: that if Holder and Obama are really committed to fairness and equal justice, they should do something for this group of offenders still serving sentences that Congress has overwhelmingly voted to be excessive.

I will readily/happily admit that I am uniquely concerned about this issue --- as has been the US Sentencing Commission for almost 20 years, as well as nearly every member of Congress who voted for the FSA --- because the crack/powder difference is the most tangible example of foolish federal sentencing excessiveness that has a profound impact on societal perceptions of racial injustice. If you and Tarls think meth and heroin are other notable examples example of foolish federal sentencing excessiveness that has a profound impact on societal perceptions of injustice, you can join the many groups calling for across-the-board cuts in drug sentences.

Meanwhile you both know (or at least should know) that I DO make a very big deal about other tangible examples of foolish federal sentencing excessiveness that disproportionately impact white offenders -- namely the crazy-high guideline sentences provided for child porn downloaders and fraud offenders. Do you think my "campaign" or those of others complaining about excessive CP or fraud sentences are "about little EXCEPT race"? Does the fact that you and others advocate for very long guideline sentences for (disproprotionately white) federal CP and fraud offenders mean that you "hate white people" (hat-tip to Kanye here)?

The mere fact that you and many others (on both the left and the right) want to look at lots of issues primarily through the lens of race does not mean every issue is about race. Crack sentences before the FSA --- according to the USSC for deaces and to Congress now --- were far too long relative to powder sentences. CP and fraud guidelines sentences remain too long. I also think lots of other federal drug sentences are too long, too. But my "campaign" against long prison sentences is not about race --- it is about my affinity for liberty and my disaffinity for wasting too much taxpayer money trying to control markets in vice. (Of course, all issue of crime and punishment have racial echoes in the US, and those who want to focus on the racial angle can sell a lot of books that way --- see, e.g., The New Jim Crow, written by my collegue Michelle Alexander. But my main focus is excessive and costly restrictions on human liberty for both black and whites. As suggested above, my heart swells when I hear "My country, 'tis of thee, sweet land of liberty, of thee I sing. Land where my fathers died, land of the pilgrim's pride, from every mountainside, let freedom ring." )

Getting back to our agreement that AG Holder and Prez Obama should take care of this issue via clemency, here is what I would have him exactly say/do at your proposed "nationally televised commutation ceremony":

1. Congress unanimously passed the Fair Sentencing Act to reduce crack sentences across the board and ordered the US Sentencing Commission to take steps that now have allowed over 7,000 MORE serious crack offenders sentenced to excessively lengthy prison terms under now-repealed laws to ask a judge to reduce their sentences should doing so pose no risk to public safety.

2. I believe it is unfair and unequal that a few thousand LESS serious crack offenders sentenced to excessively lengthy prison terms under these now-repealed 100-1 crack laws have been prevented from being able to ask a judge to reduce their sentences should doing so pose no risk to public safety. I hereby grant a conditional commutation of sentences to for these LESS serious crack offenders: the condition is that their sentences will be reduced only if and after (and to the extent) a judge concludes that a reduced sentence will pose no risk to public safety.

3. I feel a constitutional obligation to grant these conditional commutations because Professor Berman has so forcefully argued --- and no one has yet provided a substantive response to his argument --- that it is now, after the passage of the FSA and the relief given to more than 7,000 MORE serious crack offenders, both cruel and unusual (and thus a violation of the Eighth Amendment) to not provide similar relief to LESS serious crack offenders.

4. I am also doing this now, in large part, because it may be the only way to get Profs Berman and Otis to shut up. In addition, I have appointed Bill Otis and TarlsQtr1 and federalist to be part of a new communtation task-force. Professor Otis is to recommend to me, on a weekly basis, which .001% of the federal prison population (e.g., two prisoners) to whom I may be able to grant communtations in order to save money from federal incarceration and provide more resources to reinvest in hiring more NSA agents to help continue to keep our country safe and free.

Posted by: Doug B. | Aug 26, 2013 5:26:40 PM

How about it:

Might want to cut back on the coffee, not cutting it.

Posted by: MidWestguy | Aug 26, 2013 6:42:28 PM

Bill Otis, both might be "civil rights" people that some people might be able to name, but I still don't see Jesse Jackson specifically having much relevance these days. Al Sharpton, thanks in part to people like yourself making him important (in this case negatively), might be more important but not as much as a young up-and-coming mayor/likely senator or the governor of Massachusetts.

If I am "straining" akin to Prof. Berman, I am glad for the company, though don't take that as an invite to debate me. I'm too "elliptical."

Posted by: Joe | Aug 26, 2013 6:55:36 PM

Prof. Berman, you write that the President should "appoint[] Bill Otis and TarlsQtr1 and federalist to be part of a new commutation task-force" and that Professor Otis is to recommend to the President "on a weekly basis, which .001% of the federal prison population (e.g., two prisoners) to whom" the President "may be able to grant commutations in order to save money from federal incarceration and provide more resources to reinvest in hiring more NSA agents to help continue to keep our country safe and free."

I like the idea (especially since it sounds familiar), but maybe the President would raise the percentage to .002%. By the way, Bill Otis, please send me your e-mail. Mine is michael@levinemchenry.com

Posted by: Michael R. Levine | Aug 27, 2013 8:52:01 AM

Michael R. Levine --

As I was saying the other day, the President has already appointed me to a commission -- the On-Site Commission to Study the Backside of the Moon. I understand the President will be sending Ted Cruz to visit me.

Email coming up.

Posted by: Bill Otis | Aug 27, 2013 10:29:58 AM

Bill, when you get to the Dark Side of the Commision, please send me a few slabs of cheese.. They must have some good wine and crispy crackers
to go along with it... The check is in the mail...

Posted by: MidWest Guy | Aug 27, 2013 11:55:24 AM

just picking out three points from the comments. 1. i'd say fairness is more important to maintaining the rule of law than judicial obedience to valid and longstanding statutes. Some of the valid and longstanding statutes are not fair. When the population sees that a statute they must live within is not fair, either fairly applied or fair on its face, I'd say fairness is more important to maintaining the rule of law. When the statutes are fair, than, I'd say it is more important that judges interpret the statutes as the legislature wrote them.

2. the fact that meth has the same disparity, is prosecuted at roughly the same rate, and overwhelmingly puts whites in prison
in 2012...It appears that meth and crack is prosecuted at roughly the same numbers, 4500 and 4300, but more than 80% of those convicted of crack crimes are black, 6% white, and it appears meth convictions are about 10% for those who are black, 40% for those who are white, and 40% for those who are hispanic. http://isb.ussc.gov/content/pentaho-cdf/RenderXCDF?solution=Sourcebook&path=&action=table_xx.xcdf&template=mantle&table_num=Table34

it seems that meth and crack convictions, at least federally in 2012, are fairly distinguishable when it comes to race of those convicted.

3. and, Zimmerman shouldn't have to face a federal indictment. It's a legal fiction that there is no double jeopardy between federal and state jurisdictions.

Posted by: = | Aug 28, 2013 12:26:07 AM

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