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July 28, 2006

Hoping for more buzz on Senate crack sentencing bill

The Senate bill introduced this week to reduce the notorious 100:1 crack/powder sentencing ratio (background here) is starting to generate a little buzz.  This piece from the Drug War Chronicle provides nice background on the issue, and today's Montgomery Advertiser has this editorial supporting the bill with these insights:

Alabama Sen. Jeff Sessions ... has ample law-and-order credentials and plenty of credibility when proposing reforms in the glaringly unbalanced sentencing for cocaine offenses. This is not a question of coddling criminals, but rather a move toward a more equitable sentencing structure for offenses involving the different forms of the drug....  A 100:1 disparity is hard to defend under any circumstances....

A great friend of the blog has sent me a copy of the Senate bill, which can be downloaded here: Download senate_cocaine_bill.pdf

The Senate bill, by adopting a 20:1 crack/powder ratio for triggering statutory sentencing minimums, follows the latest advice from the US Sentencing Commission as reflected in its 2002 report to Congress.  Consequently, it would seem appropriate for the USSC to issue press releases and author letters to key persons in Congress expressing robust support for this important bill and urging Congress to move forward quickly.  But, given the USSC's recent track record on this issue, I am not holding my breath.

July 28, 2006 at 07:15 AM | Permalink


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Equalizing the punishment for crack and cocaine at 20 to 1 makes no more sense than the “equal but separate” established in Plessy v. Ferguson. The Supreme Court played politics with racial issues until Brown v. Board of Education and finally admitted that Plessy was wrong, and so is a 20 to 1 equalization of punishment for the same chemical. Cocaine is cocaine whether, boxed, bagged, blocked or rocked and the possession of a pound no matter the shape should be the same, unless the concept is to continue to punish the race that smokes the rock more severely. Correct the disparity one time and get it right

Posted by: Barry Ward | Jul 28, 2006 9:31:20 AM

I have to agree with Barry. Going from 100:1 to 20:1 is definitely half a loaf.

Honestly, the solution ought to be to ditch weight as the central element of drug sentencing. Two alternatives immediately present themselves.

First: look strictly at the nature of involvement (i.e. user, retail dealer, underling in drug scheme, direct supevisor of drug dealers or wholesaler, and supervisor of drug dealer supervisors (i.e. drug kingpin)).

Second: look to street value of the drugs, and punish people based on the street value in their possession. For administration purposes, have the Justice Department issue a new regulation on street value to weight conversions each year.

The other virtue of a street value approach, is that it represents a recognition that at the dealer level, drug dealing is basically an economic crime, and would allow the USSG to compare the apples of property crimes, with the oranges of drug crimes, on a reasonable and proportionate basis (perhaps with an adjustment say $150 of property crime ought to be punished the same as $100 of drug crime, on the theory that the harm from drugs (in terms of ruined lives) is greater than the harm from property crime.

Similar approaches could be applied to other vice ofenses such as pimping and illegal gambling.

Posted by: | Jul 28, 2006 11:53:50 AM

I'm a disabled former cop, and speaker for a national law enforcement group, who feel our drug war has failed. Drug sentences don't make sense to me. We've spent over 30 years doing this silly dance of drug prohibition. Today drugs are cheaper and easier to get than ever before. School kids tell us they can get illegal drugs, easier than alcohol or tobacco. I've seen cops take one ounce of cocaine, add 7 ounces of cut found during a search, and presto, you have a half pound of cocaine. As long as it tests positive for cocaine, it's cocaine.

E. Jay Fleming
Law Enforcement Against Prohibition
Mohave Valley, AZ
LEAP Introduction Video http://www.leap.cc/audiovideo/LEAPpromo.htm

Posted by: Jay Fleming | Jul 28, 2006 1:22:49 PM

Interesting bill. Thanks for posting it, Doug!

In addition to adjusting the crack/powder cocaine ratio, the bill includes another fair-minded provision for offenders who play a lesser role in drug offenses. Section 202 provides that any defendant’s whose actions qualify her for a “minimal role” reduction can’t receive a base offense level that exceeds 32. That section also provides an additional 2 level reduction for such defendants if they (a) were to receive “little or no compensation” from the transaction, and (b) acted on “impulse, fear, friendship or affection” and were otherwise “unlikely to commit such an offense.”

I think this is a great provision that takes account of the complex personal relationships that underlie drug conspiracies. While clerking for a district court judge, I regularly saw girlfriends, elderly aunts, younger brothers, and others whose involvement in a drug conspiracy was clearly motivated by a personal relationship with one of the major conspirators. Because DOJ has decided to indict these minimal participants, because conspiracy law makes them responsible for the entire amount of drugs at issue in the conspiracy, and because these low-level players’ involvement was so limited that they usually did not have any information to trade in return for a substantial assistance departure, the sentencings of these individuals to incredibly long periods of imprisonment were the starkest examples of injustice under the Guidelines that I saw during the clerkship.

Glad to see that a few senators had the courage to introduce this legislation.

Posted by: C. Hessick | Jul 28, 2006 3:24:38 PM

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