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August 23, 2006

Nice Slate commentary on crack sentencing

Larry Schwartztol writing for Slate has this thoughtful essay entitled, "Rocks and Powder: Will Congress listen to the courts and fix drug sentencing?".  The whole piece is great, and here is an extended snippet:

For years judges have railed against the heavy crack sentences as unfair, and Congress has considered amending them before.  What's different this time is that the judges are doing more than complaining.  Seizing on a Supreme Court decision that expanded their discretion over sentencing, judges have justified less harsh punishments for some crack offenders by trumpeting the sentencing scale's many faults.  And rather than ignoring the judges or trying to silence them, Congress may actually be listening, for a change....

In the year and a half since Booker, about two dozen district courts have issued sentences below the ranges in the sentencing guidelines at least in part because the crack penalties were too harsh.  But three appellate courts around the country have refused to go along. They have thrown out the reduced sentences for crack offenders on the grounds that Booker allows courts to take into account the specifics of each case at sentencing, not to disregard a penalty because it has statistically pernicious effects. Other appellate courts may see the matter differently, and eventually, the Supreme Court may weigh in. But for the time being, the maneuvering room eagerly claimed by many district courts may be disappearing.

This is why the senators' new bill to remake the sentencing ratio is so remarkable. Some members of Congress are heeding the trial judges' call — and they're proposing to make some sentences more lenient, hardly the usual congressional course.... The proposed change to the crack-vs.-powder sentencing scale doesn't reflect a newfound lenient disposition. Recalibrating the 100-to-1 ratio is an easy call because the crack penalties have become an embarrassment.  Still, it's nice to see a group of Republican and Democratic lawmakers taking a cue from the judiciary. 

The legitimacy of both branches is enhanced if they are seen as engaging each other rather than constantly clashing.  It is rare for judges to use their opinions as a forum for editorializing about what Congress should be doing. So, when a particular policy attracts persistent judicial protest, Congress does well to listen carefully. This is especially true when it comes to potentially discriminatory laws.  Courts have a special role to play in protecting minorities when lawmakers appear indifferent to policies with uneven effects across racial lines. Judges are also insulated from the kind of frenzied politics that drove the initial adoption of the drug penalties. And they operate the machinery of the criminal justice system on a daily basis. Congress should respond, finally, to what judges are telling them about drug sentencing.

Some related posts on crack sentencing after Booker:

August 23, 2006 at 06:43 PM | Permalink


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I suspect that very few of my readers are crack addicts, so you might not be familiar with the "powder/crack" controversy:In federal court, crack offenses generate sentences 100 times greater t... [Read More]

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