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November 19, 2007

Thoughtful review of crack amendment retroactivity debate

At FindLaw, Mark Allenbaugh and Paul Hofer have this effective new piece discussing the debate over the US Sentencing Commission's new crack amendments.  The piece is entitled "The U. S. Sentencing Commission Considers Shortening Terms for Imprisoned Crack Offenders: Should the Reduction of the Disparity Between Crack and Powder Cocaine Sentencing Be Retroactive?". Here are excerpts:

On November 13, the Commission held a day-long hearing in Washington, D.C., to consider the retroactivity question, after having received over 30,000 letters in support of retroactivity....

The hearing demonstrated the willingness of the Commission, the federal judiciary, the defense bar, and many others to work together to correct a longstanding injustice in federal sentencing. Despite these efforts, however, the Commission made clear when it promulgated the crack amendment that it represents "only a partial solution to some of the problems associated with the 100-to-1 drug quantity ratio. Any comprehensive solution to the 100-to-1 drug quantity ratio would require appropriate legislative action by Congress." In particular, the mandatory minimum penalty statutes need to be repealed or amended to reflect the actual seriousness of crack offenses.

The behavior of offenders who benefit from the Commission's actions through early release will also affect future efforts to reform our nation's harsh drug laws.  All eyes will be on them to see how responsibly they handle the earlier freedom the Commission might make possible. A return to addiction or crime will make future reform more difficult, and will disappoint the many supporters who worked to make crack penalties more just.

Near the end of the hearing, Julie Stewart, testifying for Families Against Mandatory Minimums, asked persons in the audience with family members in prison to stand and make their presence known.  The room fell silent as mothers, fathers, siblings, and children who had traveled to Washington from around the country rose and held aloft pictures of their loved ones who are still behind bars.

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November 19, 2007 at 07:59 AM | Permalink


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Its an interesting idea, but since the USSC can't really change the fact that felons let out of jail have difficulty finding gainful employment, your very posting of this article has depressed and discouraged me.

Posted by: S.cotus | Nov 19, 2007 8:35:07 AM

My sentiments exactly, SCOTUS you took the words right out of my mouth...
I know of some many ex cons who simply have not been able to find long term, gainful
employment. With parole and probation fees adding up, (as just one good example) they are forced to somehow make ends meet and thus, "the streets come calling". A job fair was held at MLK center put together by our local radio station and church Pastors,where over 400 ex cons showed up. According to the DJ hosting the event, where only a few employers showed up... leaving the ex cons disappointed and frustrated...
So relying on the success of released offenders to set the example and future determinations will probably prove fatal to drug reform...

Posted by: Stiff | Nov 19, 2007 10:09:06 AM

If unemployment and poverty rate are a bigger factor than the self discipline the article suggests the released offender's exhibit, then why was it that while crime nosedived in the mid to late '90's the unemployment rate and poverty rate ticked up nationally -- and in some locales like NYC the actually jumped up while crime plummeted?

It is an unpersuasive argument to people who have actually lived hand to mouth that ex-cons "have no choice" but to return to their winning ways.

While it is true that economics is a big factor in whether you end up behind bars, and if you have money and low moral fibre you can always fall back on becoming President of the United States, the fact that an individual hears the siren call of the streets and answers is more a reflection on his/her personal makeup than the economics involved. I mean, if facts mean anything.

Posted by: dweedle | Nov 19, 2007 10:56:55 AM

Dweedle, Nobody is saying that cons “have no choice” but to reoffend. Possession and distribution of crack is a volitional act. But, crack addicts are generally not evil people. They are stupid, irresponsible, and sometimes annoying. But, they generally mean people no harm. The same can’t be said for the legions of people accused or convicted of assaults or robberies. There are some mean people out there.

Unfortunately, I don’t put much weight in crime statistics. Police departments can enforce and code reports however they want. “Aggressively” enforcing some crime will mean higher crime rates. Likewise, “conservatively” reporting some crimes will mean lower ones.

But, the problem that Stiff and I are getting at, is that the people leaving prison won’t necessarily be able to develop the skills that most of us have to make us not appear intelligent, responsible, employed, and not annoying. They will have nothing. So, as the saying goes, “Idle hands do the devil’s work.” And these people are likely to go back to their old ways, which, as you say, is a reflection of their personal makeup.

There are programs that can effectively place (some) ex-cons in the workforce. But, they are few. They also require that cons be trained in a real skill while they are in jail. Again, these programs have declined over the years.

Posted by: S.cotus | Nov 19, 2007 12:12:12 PM

S.cotus: Certain crimes stats are pretty conclusive. Take murder for instance, since the evidence tends to attract flies and attention the police can do little to hide the results. Additionally, Andrew Karmen has pointed out in much of his work that auto theft also is highly and accurately reported by a third party (insurance companies) and that statistic can't be massaged by the PoPo either. What's interesting is that, in the specific case of NYC, the murder and auto theft rates mirrored each other ("highly correlated") in declines and increases over the years from the 1970's through the crime crash of the 1990's, so despite your fear that Officer Donutmuncher is fudging the numbers it is pretty conclusive that crime did indeed go down in the '90's while the poverty rate and unemployment rate stagnated or increased (depending on the year). These trends are well documented by people well above our pay grade.

Second, have all the after-jail programs you want, these guys (and a few gals) are going to be facing the same lack of opportunity and advancement they faced before they went inside, and having seen the results of these programs, just as with drug treatment (which we discussed ad nauseam a few weeks back), the trends are not in their favor and the statistics for those without aid of any program tend to be very similar. The sad fact I have come to realize after 10 years in the criminal justice system is that there is a population of men between the ages of 15 and 30 that will always be involved in crime, and probably always have been involved in crime long before the English sent them to Australia, long before the Romans conscripted whole slums for service in Gaul, and long, long before the Congress invested their hopes in mandatary minimums. The good news for the 3000-odd fellows that are going to be "retroactivated" out into the world in the next few years is that they are somewhat older, on average, and thus statistically less likely to re-offend.

Third, it is not accurate to suggest that the typical federal crack offender is simply an unlucky angel. Only .07 of those convicted in 2006 were convicted of possession, so first off these were drug dealers -- perhaps small time, but they were engaged in the enterprise of selling illegal narcotics, not unlucky party goers. 65% of all offenders convicted in '06 had a criminal history category of III or higher. 24.1% had a criminal history of VI. Fully one quarter had multiple felony convictions. By comparison, only 12.2% of heroin offenders and a measly 7.1% of powder cocaine offenders had a criminal history category of VI. They seem to forget to leave their guns home too, as 26% of crack cases involved the use of a weapon. Of note, this is TWICE the rate of weapon use for offenders convicted of heroin sales (10%) and powder cocaine sales (12.8%). It is three times the rate of weapon use for marijuana sales (8.4%). I'm guessing that since most pot dealers never had to deal with you on a Saturday night when you only have half the cash for a dime bag, they never really needed a gun. While I disagree with the 100 to 1 ratio and mandatory minimums, the statistics lend weight to the DOJ's old argument that the crack offender is typically more dangerous than the powder offender. Additionally, while a lot of focus is placed on the 5g threshold mandatary minimum, a whopping 86.1% of all crack offenders have more than 50g to their credit. 50g does not a make a "harmless crack addict" S.cotus, it makes a crack dealer.

While I have no problem with heaping as many programs on the releasees as possible, I think the best news is that demographics may favor them (and the public) more than their rehabilitative instincts. I also think the USSC will be doing the right thing, but let's not get to misty-eyed when we read FAMM testimonials, most of these guys have a long, long criminal history and they aren't in prison for their choice of drug, they're in prison for their choice of profession.

Posted by: dweedle | Nov 19, 2007 1:42:56 PM

Oh, those extra spectacular '06 stats are from the handy-dandy 2006 Sourcebook of Federal Sentencing Statistics, the discriminating gentlemen's choice for bathroom reading, available in dark alleys in DC, behind any Woolworth's lunch counter, and online at the USSC (www.ussc.gov) website. But be careful, the Government tracks you and may reset the chip in your head when you go to their websites.

Posted by: dweedle | Nov 19, 2007 1:54:16 PM

Dweedle, I agree with you about murder statistics. I differ as to why I think that murder statistics are more reliable than most, but in the interest of time, I will agree with you. Auto theft is usually accurate, but there are some problems with some autothefts gets coded or reported as an “unauthorized use” of a vehicle, which in some contexts means joyriding, but in other contexts might mean a homeless person sleeping in a car. I have seen both examples. I don’t know who was documenting these trends, and how they could be “above” our pay grade. The “above my pay grade” line is usually used to mean “I didn’t make that decision” not “It must be true.” So, I really have no idea what you were talking about there.

I probably do agree with you that the opportunities for these losers will be just about as low as it was before they went in. Though I think it will be slightly lower. In the not too distant past people could count on being offered a chance to learn a trade in jail. Now, it is hit or miss whether they will have the opportunity, and whether they will ever be able to practice that trade.

As to whether people in jail are unlucky. The crack trade (unlike the marijuana or coke trade) has a fair tendency to merge “users” and sellers. Very often poor people simply finance their crack habit by being the smallest of small-time dealers. Not that this excuses their crime or whatever, but crack, as a drug seems to find a ready market with poor people. Since poverty criminal records, and even violence all seem to go together, I think we agree that the people in jail for crack are really come from bad areas and probably wouldn’t do too much better for themselves if they were not in jail.

The federal government’s statistics either come from their own record collection and state’s collection which is again prejudiced though the coding and political problems seen above. I have no doubt that you are reporting the stats correctly.

I rarely read FAMM stuff, anyway.

Posted by: S.cotus | Nov 19, 2007 2:10:31 PM


What I meant to convey is "who the hell knows what number-twiddlers really do," but I do have more faith in the murder numbers, and I do believe different crimes broadly trend together and the mirroring of auto theft and murder is pretty convincing on that point.

I still have to disagree with your characterization of offenders caught with distributable amounts. I hardly think that a street tout is going to be given charge of 50g of product since crackheads don't always make the most reliable employees and your talking about 350-500 doses (depending on the cut) worth anywhere from $3500 to nearly $10K. I think a drug dealer letting a crackhead have charge of such resources is about as likely as me letting my brother-in-law borrow my new Honda to drive 2000 miles to his next piercing and tattoo festival with his girlfriend Doombaby — assuming he gets out of rehab in time for the festivities.

Posted by: dweedle | Nov 19, 2007 2:39:21 PM

I see where you are going on this. There probably isn't any way to know for sure, so the best we have to go on is our common sense about the way "dealers" operate. Strangely, the way dealers operate is different from the way "drug quantity" is determined at sentencing.

Posted by: S.cotus | Nov 19, 2007 2:45:50 PM

Drug User/Drug Dealer,
just who I am, repeat offender/product of enviroment or circumstance,
bad guy/harmless offender
(or as you Dweedle seem to specify Crack user/Crack dealer) or whatever the classification is:
Statistics (and opinions) can be argured til the end of time. Bottom line, at least give them a choice (REAL chance to be employed and the other essentials to being a productive citizen ). Then NOBODY can argue employment issues...
You'll know the "just who I am, repeat criminals" from the "if you give me a chance I can change men/women. Those just who I ams will go back to prison and serve out their time with no sympathy...

Posted by: Stiff | Nov 19, 2007 2:52:48 PM

S.cotus, I can see you're trying to make me engage in self-torture, trying to force me to find DOJ testimony about crack that includes the rationale for the thresholds.

I. Will. Resist.

I wish there was a website for the CDSAA (Crack Dealer Standards Ass'n of America), but inexplicably I cannot find one, nor can find the agreed upon break points for dealers to distribute to touts and the occasional well-behaved street fiend. You'd think that such a big business would be better organized.

What I can offer is, yes, my common sense notion that somebody running a business isn't likely to intrust 10K to an independent contractor with little more than a crusty hoodie and post-nasal drip for attachable assets should the transaction become surprisingly unprofitable.

Posted by: dweedle | Nov 19, 2007 3:03:55 PM

I will offer you this: In my experience, state courts are much better at determining who is on the top and who is on the bottom of the crack food chain and usually sentence people accordingly.

Posted by: S.cotus | Nov 19, 2007 3:12:42 PM

Stiff: I agree that y'all should go ahead and knock yourself out creating choices for folks. I am just noting that there is a large passel of folks that will not be effected by any program other than the one that we all are enrolled in: aging.

On one side you've got the Rudy Giuliani's of the world that like to tout the get-tough approach (which has only very slight statistical merit), and people on the other side talk about the unproven, utopian "what if's" of magical programs ("if only we had the money, we'd click our heals three times and change everything").

To me it is pretty clear that the real factor is the size of a shifting percentage of the population that are overwhelming male, young, and poor. There is little doubt that removing one or all of these variables helps (castration, anyone?), but job training and drug counseling in the absence of lottery wins (and even with lottery wins, sometimes) still leaves the majority behind.

Sorry. I didn't make the world, I just live in it (primarily to bother S.cotus).

Posted by: dweedle | Nov 19, 2007 3:31:50 PM

S.cotus: some would argue that you don't see many federal defendants characterized as users or low level because they aren't. Unlike the state court the Feds don't have to take every case Officer Ballbuster thinks is a good one. The majority of crack defendants I have seen in Texas court are those little cases you never see in federal court. That said, it isn't out of the question to see a crack defendant do pen (or, "state jail" - don't ask, Texas is weird) time on a second or third offense. The fact that the stats show an overwhelming majority of federal offenders have a pretty hefty amount of that magical rock seems to support this -- either that or the feds are just catching users right after they sell their homes and cars to by $10K worth of rock for a pool party. And to defend the law for a millisecond, that was always the point, that the feds take the bigger fish, repeat offenders, and distributors. Have they done a good job? Not by any measure I have seen, but somehow I don't think the problem is for lack of dealers being found.

Posted by: dweedle | Nov 19, 2007 3:41:59 PM

"Unlike the state court the Feds don't have to take every case Officer Ballbuster thinks is a good one."

State prosecutors can and do exercise their discretion.

As to whether feds are taking the big fish, this seems to vary by district, as some US Attorneys are more apt to want to rack up smaller fish than others.

Posted by: S.cotus | Nov 19, 2007 6:53:13 PM

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