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May 23, 2006

Crack sentencing news and notes

Here are two items of interest for folks continuing to follow post-Booker crack/powder cocaine sentencing stories:

1.  The First Circuit Federal Defender Blog has this post that provides a link to this brief from the Federal Defender Office for the Eastern District of Pennsylvania that addresses the crack/powder sentencing in a pending Third Circuit case, US v. Ricks.  As detailed in this post, I helped out with an amicus brief filed in Ricks.

2.  Speaking of amicus efforts, some blog friends alerted me to the interesting news that the Eighth Circuit recently issued this order soliciting amicus briefing on the crack/powder issue.  Here is the text of the order in US v. Spears:

Interested persons are invited to file amicus curiae briefs addressing the question raised in the government's cross-appeal, that is, whether it may be reasonable for a district court, post-Booker, to impose a sentence which utilizes a crack cocaine/powder cocaine ratio of less than 100 to 1.  Such amicus briefs may be filed on or before Friday, June 2, 2006, without the need to obtain leave of court to do so pursuant to Fed. R. App. P. 29.

I suppose it would be a bit too cheeky for me to file a letter brief with the Eighth Circuit that simply references the following links to these prior posts and amici efforts in this area:

May 23, 2006 at 05:34 PM | Permalink


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» Eighth Circuit Mulling Crack/Cocaine Sentencing Disparities from Drug Law Blog
This blog recently noted that it didn't take long (only about two sentences, in fact) for the Sixth Circuit to conclude that a challenge to the crack/cocaine sentencing disparities was fruitless. But as the Sentencing Law and Policy Blog noted [Read More]

Tracked on May 24, 2006 6:07:53 PM


Go for it Professor Berman!

Posted by: Patrick S. O'Donnell | May 23, 2006 5:51:25 PM

Punishment is really society’s concept of retribution, and like most criminal or civil proceedings, the harm society perceives is measured by society’s great measuring stick, the almighty dollar.
If something of value is taken the determinative sentence is purely a conversion to dollars, if a finger is cut off the loss is converted to dollars, if a leg or even the loss of a loved one, all are converted to dollars to establish the remedy to satisfy some part of society. So, using the dollar as the yardstick for punishment; as the Sentencing Commission has done in most section, see 2B1.1 which covers all kinds of taking; §2B1.1 - Larceny, Embezzlement, and Other Forms of Theft; Offenses Involving Stolen Property; Property Damage or Destruction; Fraud and Deceit; Forgery; Offenses Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United States.
The theft of $5,350,000 would result in punishment at BOL 24 of 51 to 63 months,
A comparable amount of cocaine powder would result in a BOL 36 imprisonment of 188 to 235 months.
The theft of $57,500 converts to a BOL 12, imprisonment of 10 to 16 months.
But, $57,500 worth of cocaine if it is crack, will result in a BOL 36, imprisonment of 188 to 235 months.
Most crack cocaine cases do not involve $57,500 worth of the drug, the prisons are full of young men serving 20 to 30 years for a hundred dollars of the dreaded smokable rock.
A $100 theft was described by the Supreme Court as the “crime of uttering a "no account" check for $100 is viewed by society as among the less serious offenses” SOLEM v. HELM, 463 U.S. 277 (1983), but $100 worth of crack is among the most severely punished crimes.
There would be no crack if there were no powder, like there would be no methamphetamine without the precursors, which are punished more severely than the finished product. But would punishing powder more severely reduce drug abuse, just look at the prevalence of crack today as compared to 1985 and you can answer your own question.
The lure of the drug market like the gold rush to California or the more severe gold rush to Alaska, was taken up by some, for the dollar has immense magnetism, and there are those pulled toward the chance of big money no matter the harshness of conditions or the severity of the trek.
Education is the answer, not drug education, but education which provides the draw of the gold, the chance to make a better life in a society which is foreign to the street urchins who follow the rainbow. Take the money wasted on the “War on Drugs” and prisons and educate the youth, introducing them to the world that fenced them out, then fenced them in.

Posted by: Barry Ward | May 24, 2006 10:15:18 AM

If I'm not mistaken Barry, I think we might then refer to the guidelines for sentencing as (if only metaphorically) a species 'commodity fetishism.'

Posted by: Patrick S. O'Donnell | May 25, 2006 2:17:06 AM

Patrick, I think you have said in two words, what I struggled to state in a page. The magical power that turns “rock” into gold is a fetish that exists in most capitalistic societies, for money is the measure of success in America. I have the T-shirt, been there and done that, but you have the concept encapsulated in “commodity fetishism”, a euphuism that describes the mysterious attraction exerted by the “Crack” magnet.

Posted by: Barry Ward | May 25, 2006 9:17:39 AM

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