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March 12, 2007

Are better crack sentences on the horizon?

This USA Today article, entitled "Lawmakers consider lessening crack penalties," provides some encouraging news for those hoping for congressional action on crack sentencing.  Here are a few details:

Momentum is building in Congress to ease crack cocaine sentencing guidelines, which the American Civil Liberties Union and other critics say have filled prisons with low-level drug dealers and addicts whose punishments were much worse than their crimes. 

Federal prison sentences for possessing or selling crack have far exceeded those for powder cocaine for two decades. House Crime Subcommittee chairman Robert Scott, D-Va., a longtime critic of such sentencing policies, plans to hold hearings on crack sentences this year. In the Senate, Republican Jeff Sessions of Alabama is drawing bipartisan support for his proposal to ease crack sentences. "I believe that as a matter of law enforcement and good public policy that crack cocaine sentences are too heavy and can't be justified," Sessions says. "People don't want us to be soft on crime, but I think we ought to make the law more rational."...

Sessions' bill would lessen the sentencing disparity by increasing punishments for powder cocaine and decreasing them for crack. Crimes involving crack would still draw stiffer sentences, but the difference would not be as dramatic. The bill has drawn support from Democratic Sen. Ken Salazar, a former state attorney general from Colorado, Democratic Sen. Mark Pryor, a former state attorney general from Arkansas, and Republican Sen. John Cornyn, a former Texas Supreme Court justice and attorney general. In the House of Representatives, two bills calling for Congress to equalize the sentences for powder cocaine and crack were filed in January.

"We're going to address all the mandatory minimums," said Scott, chairman of the House Judiciary Committee's Subcommittee on Crime, Terrorism and Homeland Security. "The crack cocaine is probably the most egregious because of its draconian number of years for relatively small amounts." Opposition to weaker sentences has come from police, prosecutors and law enforcement agencies such as the Justice Department and the Drug Enforcement Administration.

UPDATE:  Marc Mauer and Kara Gotsch of The Sentencing Project have this new commentary, entitled "Seeking Justice In The Drug War," that calls for congressional action on crack sentencing.  Here is the final paragraph:

With champions for criminal justice reform like Rep. John Conyers,D-Mich., and Senator Patrick Leahy, D-Vt., heading the judiciary committees in Congress, the opportunity to redress the misguided crack sentencing policy is upon us.  Hearings before both committees are long overdue in this arena and would provide the necessary evidence to dispel the misinformation and hysteria that clouded the public debate on crack cocaine in the past.  These myths have done a disservice to developing responsible drug policy, while exacerbating the tragic racial disparities that plague our prison system.  Now is the time for congressional attention and action.

March 12, 2007 at 09:05 AM | Permalink


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Tracked on Mar 12, 2007 1:57:34 PM


Watch, it'll be all talk, no action, again, again, again.

There isn't a single member of congress that has the guts to fix this problem and do the right thing. Not one.

Posted by: BabbuLu | Mar 12, 2007 10:10:14 AM

This is how change should happen. Like it or not, the 100:1 ratio is a policy choice made by Congress, and individual unelected judges should not undermine that choice.

That being said, I personally think the 100:1 ratio is bad policy. But Congress made this mess, and Congress should clean it up.

Posted by: Law Clerk | Mar 12, 2007 10:15:11 AM

Law Clerk: the provisions of 3553(a) were also a "policy choice made by Congress" and judges have to implement that, too, especially because the crack guidelines (as opposed to the mandatory minimums) was a policy choice made by the US Sentencing Commission.

Posted by: Doug B. | Mar 12, 2007 10:17:37 AM

I think law clerk needs to specify which of the policy choices he chooses between. He seems to want to ignore some sets of policy choices in favor of the ones that result in the greater number of moths of incarceration of poor people. If a judge (perhaps an unelected one) chooses between two choice, it would seem that he actually is “making” policy.

Perhaps, putting poor people in jail, is a defensible policy choice. After all, poor people do commit most of the crimes, and almost all of the violent ones. Even if most drug crimes are not violent, it is only a matter of time before a given poor person commits a felony, right?

Finally, I wonder why Law Clerk has a problem with “unelected” judges. Most decisions regarding the amount of time (a likely poor person) will spend in jail is made by people that are unelected. For example:

1) Federal Prosecutors are not elected (and until last week the current administration took the position that they need not be confirmed by Congress);

2) State prosecutors, while elected, do not campaign on individual cases;

3) Judges are rarely elected – though the implication of Law clerk’s comments is that an elected judge can legitimately “make” policy (though, as I showed above, most of his comments are somewhat problematic);

4) Juries are completely unelected an accountable to nobody! Why don’t people complain about this. The juries don’t even need to explain their reasoning. They can send someone to jail for life (as a policy matter) or set them free (as a policy matter) without even explaining their reasoning. There is no requirement that jurors even have a basic level of education; and

5) I bet most members of the public can’t name a single person on the US Sentencing Commission. This isn't accountability.

Posted by: S.cotus | Mar 12, 2007 10:48:11 AM

I am a student but more of a concerned citizen. Do you know if there is a date set for the claiborne rita vs united states case. Any response would be greatly appreciated and I thank you in advance for you information.



Posted by: Junisha | Mar 12, 2007 11:13:36 AM

No decision yet. It has aleady had oral argument. You might be able to dl the mp3s here:


Posted by: S.cotus | Mar 12, 2007 11:19:39 AM

Anybody know the bill number of the Sessions bill?

The reason why policy-making by judges with life tenure is particularly problematic is that they cannot be removed for abusing their authority and making up new restrictions on the people's constitutional right of self-government that the people never agreed to. Such action is also illegitimate when done by judges who must stand for election periodically, but the problem has a more ready solution, e.g. California in 1986.

Posted by: Kent Scheidegger | Mar 12, 2007 1:27:11 PM

But wait a minute, Kent, first you say judges can’t be removed, and then you provide an example of where similar functionaries were removed. There have been no serious efforts recently to impeach federal judges for specific sentences. This is, perhaps, a result of the fact that most sentences can be appealed. Indeed, post-Booker sentences are generally longer, rather than shorter, which is fine by me because I feel safer with a larger jail population.

Kent, As it stands, if “the people” want to govern themselves, they have to work via Congress and the Constitution. Since the constitution is ambiguous, yet supreme, any “rights” that the people have need to be resolve via a constitutional amendment. The process for changing the constitution is quite clear, and is provided in Art. V. However, “the people” are far more interested in the threat to their lives caused by gay marriage then they are to the relative threat caused by crack.

In most cases, Kent, legal questions revolve around some ambiguity or contradiction between various sources of law. In the sentencing context we see this in the conflict between 1) the guidelines; 2) 3553(a); and 3) the sixth amendment. Some don’t see it as a conflict. Most will concede that the issues are close. Therefore, if a judge (or judges) get an issue wrong, the “people” are free to amend the constitution. In fact, life tenure for federal judges could be removed. So could the sixth amendment. 3553(a) could also be removed. In fact, with a few constitutional amendments, ALL sentencing could be done by the USSC! This would preserve the right to a jury trial, but leave sentencing to an administrative process that might be more subject to the political whims that you so desire. I would also eliminate adversarial proceedings at sentencing, and provide for administrative determination of the sentence based solely on the record at trial.

Unfortunately, there has been no effort to abrogate any interpretation of the 6th amendment. Most efforts to change the constitution have concentrated on 1) amendment the 1st amendment to exclude flag-burning; and 2) gay marriage. Now, if you propose a constitutional amendment that would abrogate the 6th (eliminating Booker and Blakely in the process) I would be interested.

Posted by: S.cotus | Mar 12, 2007 1:41:01 PM

"But wait a minute, Kent, first you say judges can’t be removed, and then you provide an example of where similar functionaries were removed."

Read before you reply. I didn't say judges couldn't be removed. I said life-tenured judges can't be removed. I then gave an example from a state where judges do not (quite) have life tenure as an example of a better system.

The rest of your comment has nothing to do with anything I have said.

Posted by: Kent Scheidegger | Mar 12, 2007 1:47:48 PM

Life tenured judges can be removed. By impeachment. The discretion of Congress to remove judges via impeachment is unfettered. They can be removed for any reason that can be termed bad “behavior.” For instance, they could be removed for sentencing someone too high, making silly speeches at sentencing, or admitting evidence that people don’t like. I imagine they could also be removed for sentencing people too low, but that never really happens.

Instead, Congress has opted to provide case-by-case review of decisions of District Court judges, which seems to make people happy. Indeed, in a post-Booker world, as I said, sentences have gone up! There should be some rejoicing.

While you state that the rest of my comment did not relate to yours, it seems rather apparent that it was a response to your comment that actions of judges (that you disapprove of) is bad because “life tenure is particularly problematic is that they cannot be removed for abusing their authority and making up new restrictions on the people's constitutional right of self-government that the people never agreed to.”

Instead, I argued (and you did not respond to it) that judges are simply not abusing their power when they have to weigh conflicting and ambiguous legal provisions. I suggested that if there really is such a thing as “the people's constitutional right of self-government” (a dubious, and, I think, silly, proposition) it can be most easily vindicated via changes to the constitution if judges, making a first cut are at odds with “the people.” I provided a number of suggestions for changes to the constitution that might make it less ambiguous, and perhaps easier for Congress to put more people in jail for longer periods of time, thereby increasing the general welfare in the US.

Posted by: S.cotus | Mar 12, 2007 1:58:40 PM

To be more precise, since you apparently insist, life-tenured judges can't be removed as a practical matter, although it's theoretically possible.

Posted by: Kent Scheidegger | Mar 12, 2007 2:17:22 PM

Perhaps what you mean to say is that it is politically impossible. There simply does not exist enough political will to impeach a federal judge. Though, strangely enough, federal judges have been impeached with quite lower standards of proof. Alcee Hastings comes to mind, and he had the last laugh.

The other alternative would be to simply amend the constitution to either 1) abrogate the sixth amendment (probably the most intellectually honest approach); or 2) provide for executive or legislative review of judges or their decisions. This would appear to be a much easier way to accomplish your goals of increasing the percentage of human life spent in prison.

Posted by: S.cotus | Mar 12, 2007 2:36:58 PM

It is a remarkable thing that an impeached and removed federal judge could have the "last laugh". Alcee Hastings should be a pariah, since he is a man who abused his office. Yet, he is not. There is nothing we can do about his electorate--however, he should have no committee assignments, and members of Congress ought to shun him.

Posted by: federalist | Mar 12, 2007 5:15:37 PM

So, let me get this straight. Some people can be elected to Congress by the electorate. Then, they should not be treated as equals by their members of Congress because their fellow members think that they are somehow not worthy.

This is amazing. Somehow people think that Congress should second-guess the choices of a given state’s citizens by simply treating its members with less respect, and treating other members with more respect.

Strangely enough, Rep. Hastings was never convicted of anything. In fact, he was acquitted by a jury. But this isn’t good enough for Federalist. He thinks that Congress should exercise figure out a way to oppress the man and anyone that thinks that he might adequately represent them.

Perhaps Congress was simply wrong to impeach him. They spoke.

Posted by: S.cotus | Mar 12, 2007 6:30:37 PM

Congress was not wrong to impeach him--as the evidence of his wrongdoing was pretty clear.

And there is nothing untoward about Congressmembers being treated differently, happens all the time, like for example, it's no coincidence that all the committee chairs are members of one party. And somehow, I don't think that a jury voting to acquit absolves a person of all of his sins, nor do I think it binds Congress on how it deals with members like Hastings.

Posted by: federalist | Mar 12, 2007 7:17:22 PM

Or maybe the jury knows better than Congress. But, I am with you: juries are stupid. They can and should be overruled by Congress or the executive when their decisions are “clearly” wrong. For example, I know many people in jail who say that the jury was “Clearly” wrong, and therefore, they should be freed. I am sure that you are talking about these folks.

Absolution of sins is for god. Not juries or Congress. It would be pretty neat, however, if Congress could absolve large geographic areas of the country for political gain. I would clearly have dibs on absolving the south for its racist past, and California for CHIPS.

Note: Not all the committee chairs are of the same party. Homeland Security and Government Affairs is chaired by Lieberman who is an Independent.

Posted by: S.cotus | Mar 12, 2007 7:45:49 PM

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