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December 2, 2007

A retroactive litmus test on leading Democratic candidates

anIf this blog post from The Atlantic Online is accurate, it confirms my deep concerns about how Hillary Clinton would approach crime and punishment issues as president.  The post is titled "Clinton, Obama, Edwards Differ On Retroactivity," and it reports that "Clinton opposes [retroactivity of the USSC's new crack amendments], and Edwards and Obama support it."

So, assuming this is accurate, let's review the line-up: the prominent opponents to retroactivity for the new USSC guidelines are President Bush's Justice Department (noted here), Republican members of the House Judiciary Committee (noted here), and now Senator Hillary Clinton.

As I have detailed in prior posts (some of which are linked below), I have long been troubled by the Clinton "brand" when it comes to criminal sentencing issues.  But, of course, most of the troublesome record on these issues involved decisions by Hillary's husband.  Now, assuming this blog report is accurate, we have a very strong basis to believe that Hillary herself favors tough-on-crime rhetoric over sound sentencing policy.  Now who should be accused of taking a page out of the Republican play book?

Some recent posts on crack guideline retroactivity issues:

Some recent posts on sentencing politics in the 2008 campaign:

UPDATE:  I now see that this item at Politico has more on this story.  Here are some telling details:

Clinton, who said she supports a federal recommendation for shorter sentences for some people caught with crack cocaine, opposed making those shorter sentences retroactive — which could eventually result in the early release of 20,000 people convicted on drug charges.  "In principle I have problems with retroactivity," she said. "It's something a lot of communities will be concerned about as well." 

In an interview after the debate, Clinton's pollster, Mark Penn, pointed out that the Republican front-runner has already signaled that he will attack Democrats on releasing people convicted of drug crimes.

Her five rivals present on stage — Illinois Sen. Barack Obama, Connecticut Sen. Chris Dodd, former North Carolina Sen. John Edwards, New Mexico Gov. Bill Richardson, and Ohio Rep. Dennis Kucinich — all said they favor making the shorter sentences retroactive.

"Rudy Giuliani is already going after the issue," Penn said. "He's already starting to attack Democrats, claiming it will release 20,000 convicted drug dealers."

So, besides suggesting that Hillary Clinton gets her crime and punishment ideas from the Giuliani campaign, this issue ought to help Democratic primary voters who care about principled sentencing reform know that not all the candidates are the same.  (I am now wondering if keep prison populations growing is part of Hillary's universal health-care plan.)

MORE:  I am pleased to see TalkLeft picking up this story, calling Clinton's position "a huge disappointment."  I also see MyDD has this post saying that "Hillary's position is really astonishing."  I hope other prominent political bloggers will keep on this important issue which provides, at least for me, a great litmus test on true principle versus (mis-perceived) political pragmatism.

December 2, 2007 at 01:18 PM | Permalink


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I'm a 2L at Western New England College School of Law in Springfield, MA.

This is no surprise from Senator Clinton--she supports the death penalty and is deadly afraid of being painted as a softie by her opponents. What is a little surprising is that she didn't consider (or at least modify her position because of) the racial justice aspect of crack retroactivity. I don't think a Clinton II presidency will be much better for criminal defendants than a Romney presidency, to be honest.

Posted by: Merritt | Dec 2, 2007 9:06:53 PM


Giuliani's "claim" that the retroactivity proposal will result in the early release of nearly 20,000 crack inmates is not campaign propaganda. It is exactly what the Sentencing Commission has said in its own study.

Concern about what these released prisoners will do by way of recidivism is not an "unprincipled" view of sentencing, but a rational one. We all know that some of them will do it again. Without having at least some idea of how many and how often, Senator Clinton's misgivings are well grounded.

As to Merritt's observation that the Senator favors the death penalty, so do the great majority of Americans, as well as clear majorities of Democrats, liberals and independents, according to the most recent Gallup poll. Every President in the country's history has favored capital punishment, and many have overseen its imposition in earlier positions as governor, or when they became President, or both.

I am not normally a defender of Senator Clinton, and I think she has much to answer for on the criminal justice front -- including her role in the scandalous Billy Dale prosecution -- but I do not believe she can be fairly attacked as a Giuliani clone for saying what the bi-partisan Sentencing Commission says.


Posted by: Bill Otis | Dec 2, 2007 10:47:49 PM

Bill, you should know that the USSC's decision to make the amendment retroactive will merely make 20,000 inmates ELIGIBLE for earlier release. And if a federal prosecutor believes any particular defendant's release has likely public safety consequences, that prosecutor can urge the sentencing judge not to grant the defendant's motion for a reduced sentence.

In addition, if Hillary and other Senators would get moving on the Second Chance Act, the ability for released offenders to re-enter society effectively will be improved. As I trust you know, the USSC's research shows that only about 2,500 offenders would be eligible for immediate release if the crack amendment is retroactive AND that number amounts to less than 0.5% of the roughly 650,000 defendants released from prison or jail every year.

Posted by: Doug B. | Dec 3, 2007 1:24:06 AM

God forbid 20,000 injustices be corrected. Oh the floodgates, the floodgates.

Posted by: bruce | Dec 3, 2007 3:46:08 AM

You folks would be interested in the interview with Huckabee by that sleezy guy on ABC Sunday Morning who used to work for Clinton. He was asking loaded questions to try to make the fomer Arkansas Governor look soft on meth dealers. Huck had signed a new law in Arkansas ameliorating harsh sentencing laws. Hucks response was very intelligent and coherent. I changed my views on him. I will not vote for Hillary under any circumstance. If the election were today and it was the former Governor of Arkansas from Hope, Arkansas vs. the present wife of the former other Governor from Hope, Arkansas, I would chose the more recent former Governor. And my mother would roll over in her grave because I voted for a Republican.

Posted by: M.P. Bastian | Dec 3, 2007 5:03:04 AM

Clinton's views should come as no surprise. Her husband could have made this whole argument moot back in 1995 by simply vetoing Congress' bill that voided the Commission's first attempt at relief on crack sentences. Instead he signed the bill. Then, he made the situation worse by stating in a Rolling Stone interview that the one thing that he wished he could have done while President was to change the crack law...forgetting, of course that he could have done something about it! So, Hillary's statement on this doesn't come as a surprise...they will say anything to get elected...and I am a Democrat who voted for Bill Clinton twice!

Posted by: Kelly | Dec 3, 2007 7:12:42 AM


That the Commission's proposal would allow "only" eligibility for release is largely a hollow distinction, given the attitude of so many district judges about crack sentencing. For a sample of that attitude, even in a conservative district like my old stomping grounds in the EDVA, take a look at the sentencing transcript in Kimbrough (now pending opinion in the Supreme Court).

The governement can of course argue anything it wants. But it will not be making the release decision.

The Commission should at least undertake a serious inquiry about the extent of recidivism the retroactivity proposal is likely to make possible. The rate of recidivism for crack offenders is not zero. Finding out what it is, or at least doing more research than the Commission has done to date, strikes me as just common sense. If, for example, the Commission could show through research that there would be only minimal recidivism, that would increase public support for retroactivity. But one way or another, what's the harm in getting more data than we have now?

Any plan for the early release of one segment of the federal prison population -- whatever that segment is -- can be made to look trifling when compared to the total number of releases of all prisoners in state prisons. But it's a comparison of apples and oranges, and 20,000 is still 20,000.

I'm not familiar with the Second Chance Act, and if it intends to make it more likely that crack dealers will reform their behavior and lead law-abiding lives, I'm certainly on board with its aims. The devil, however, is as ever in the details.

And lastly, the society we live in right now is hardly one that denies people a "second chance." The notion that we can improve rehabilitation with one more piece of legislation or one more government program seems to me to be wishful thinking. By far the most important factor in whether a convict becomes rehabilitated is WHETHER HE WANTS TO BE. I'm nobody's version of a psychologist, but my experience is that a person who becomes genuinely determined to live a constructive life doesn't need legislation, and a person not so determined won't be dissuaded from bad behavior by its passage.


Posted by: Bill Otis | Dec 3, 2007 7:28:06 AM

As a white male, you are so quick to pass judgement... I think that if the majority of crack offenders where WHITE these sentencing issues would not exist... the proof is in the pudding:crack v. powder ratio statistics; the LSD amendment...
Seriously Bill, is it too much to CORRECT the INjustice for BLACKS...?!,
Correct the injustice, if the offenders reoffends put s/he back in jail and then no one can complain.
Bottom line is, the crack offenders WILL eventually get out (after serving their sentence) so for all that oppose the retroactive application, then what...?

Bruce had the best to the point response: God forbid 20,000 injustices be corrected. Oh the floodgates, the floodgates.

Posted by: ForAllPeople | Dec 3, 2007 9:58:40 AM

Bill: I sometimes get the sense that you'd like those pesky independent judges to stop worrying about sentencing justice and just do what prosecutors want them to do. Also, the "attitude" of judges to think the crack guidelines are excessive and unjust comes from FOUR different and thoughtful reports from the USSC saying the crack guidelines are excessive and unjust. As your comment here reinforces, the folks that seem to suffer from "attitude" problems often are prosecutors who only trust and respect on their own tough judgments and not the views of others exercising independent thought and trying to be faitful to the law. Yeesh.

Posted by: Doug B. | Dec 3, 2007 10:34:18 AM


Judges are "independent" in the institutional sense, but judges do not spring up on the bench from nowhere. District judges are selected in practice by senators (although pro forma by the President). By the time anyone arrives on the federal bench, he or she has a quite well developed sense of his or her leanings. Judge Gertner, for example, was a hard-charging defense lawyer for years before being put on the bench, and her distaste for crack sentences would be there if the Sentencing Commission had never issued a single report and were on the backside of the moon. Do you disagree?

If you have the sense that I GENERALLY prefer Depsrtment of Justice positions, you're right, although I try to examine each issue on its own merits. On the other hand, I have the sense that you almost always prefer lighter sentences across the board, for drugs, white collar offenses and most everything in between.

Now of course I haven't read everything you've written, so there might be some area in which you have supported higher sentences. If so, please let me know.

I do have an attitude, that's true. The attitude is this: Adults of sound mind are responsible for their behavior. When they try to make a quick buck buy selling dangerous and destructive drugs like crack, heedless of the damage they are doing, then the problem we are having is not with the system, the Commission, etc., et al. The problem is with the offender's me-first view of the world.

And I still don't know why we shouldn't try to study more thoroughly the probable extent and effects of recidivism should this retroactivity proposal be adopted. The best antidote for people with an "attitude," whether on my side on yours, is to find the facts. And it's far preferable to find them before acting rather than after, as I think and hope you'd agree.


Posted by: Bill Otis | Dec 3, 2007 2:07:56 PM


The problem in your argument is that it assumes its conclusion, namely, that crack sentences are unjust.

It might well be the case that crack guidelines sentences in some individual cases were unjust, and in such cases the guidelines allowed downward departures, asking only that the judge articulate individualized reasons supporting them. (In the post-Booker world, of course, departures are much easier, and appellate review of them much more deferential).

When I was an AUSA, doing appeals for the Easten District of Virginia, I didn't care about the race of the defendant, that being irrelevant. (Do you really want prosecutors who adjust their decisions based on race?) It is true that crack offenses are disproportionately committed by blacks. But it is likewise true that methamphetamine offenses, at least in my day as an AUSA, were committed disproportionately by whites. The penalty scheme for both crack and meth is harsh (indeed I believe it's identical). And in all my time in the US Attorney's Office, I never so much as heard of, much less prosecuted, anyone other than a white for LSD, which also carries stiff penalties.

The government is not responsible for the fact that different drugs seem disproportionately "popular," if that's the right word, with different demographic groups. If any of the people using or dealing in these drugs -- be it blacks with crack or whites with meth -- has a problem, I have a solution to suggest to them: You can avoid harsh sentencing, or any sentencing at all, by WALKING AWAY FROM THE DRUG CULTURE AND INTO THE WORK CULTURE, where the overwhelming majority of our people, black and white, resides.


Posted by: Bill Otis | Dec 3, 2007 2:44:31 PM

Bill, I'd like you to respond at some point to whether the fact that the US Sentencing Commission has repeatedly said that crack sentences are unjust has any significance. That's the "expert" body, and they certainly do not have a reputation for being soft-on-crime.

I'd also like to understand why you are so trouble by a judiciary that was mostly appointed by republican presidents and has MANY more former US attorneys and DOJ officials than defense attorneys.

Judge Gertner gets a lot of attention because she is so rare in a world of over 1000 federal judges. To use her as a basis for defining the realities of the entire federal judiciary would be like me assuming all state AGs are like Jerry Brown in California.

If you read all my posts, you'll see that I think a lot of sentencing outcomes are too lenient (especially for drunk drivers). To give a different example, I thought the sentence that Scooter Libby got AFTER the President intervened was too low, though I did think his 30 month sentence might have been a bit too high. As I recall, you wrote about Libby's case. Do you think he suffered from an "offender's me-first view of the world"?

Posted by: Doug B. | Dec 3, 2007 5:53:40 PM


The Commission's view of crack sentencing is properly influential -- but not controlling. There is a case to be made the other way. DOJ makes it, as it did in the Clinton Adminstration, so I don't think it can be fairly characterized as blockheaded or extremist, much less "unprincpled."

In addition to the case DOJ makes, I have added that I'd like to know more about the probable nature and extent of recidivism should the retroactivity proposal be adopted. For the life of me, I can't figure out what is wrong in wanting this additional information, but no one seems willing to tell me. Until someone does, I'm going to continue to believe that it is irresponsible for the government to forge ahead with a new policy without even asking, much less assessing, what its economic and human costs are likely to be.

The Commission is, as you say, the establishment "expert body" on questions like this (so it should be the first one to be insisting on thorough research). On the other hand, the Supreme Court is the "expert body" on questions of, for example, constitutional Equal Protection, but that has not stopped a large number of liberals from criticizing the Court in bitter terms for its decision in Bush v. Gore, not to mention a raft of decisions in just the last Term, including the partial birth abortion case and the Seattle schools race-based assignments case.

Particularly in a blog such as this, which I believe you host in part for the laudable purpose of encouraging debate; and particularly in the academic community, criticism of "expert" opinion has traditionally and rightly been welcomed.

I don't recall saying that I am generally troubled by the federal judiciary. I did say that district judges get to the bench in practice via senatorial (i.e., political) selection, and you don't take issue with that. I AM troubled with judges who render decisions based on their view that, as a policy matter (with regard to sentencing or anything else), Congress got it wrong. Judicial indiscipline is easy to come by and difficult to correct, and the "rule of law," if it is to have any meaning at all, must mean that judges defer to Congress on matters of policy no matter how wrongheaded they believe Congress to have been.

I believe Judge Gertner gets heaping praise here not so much for her independence as for her substantive outcomes. Those outcomes, it is only a small exaggeration to say, are in only one direction -- toward lower sentences. If she were equally "independent" in imposing HIGHER sentences, would you still have devoted a separate entry to praise her "courage?" Perhaps, but I don't think so. I will stand to be corrected if I'm wrong about that.

I thought that in lying to the grand jury, Libby did indeed indulge a "me-first" attitude. It should be a "truth first" attitude -- especially for a lawyer. It was for that reason that I publicly opposed granting Libby a pardon and leaving him stuck with his conviction, a stance which did not endear me to a raft of my friends and fellow conservatives. I also thought that Libby deserved to be sent a message, but that a humongous quarter million dollar fine and three years' probation was enough. The man is a 56 year-old first offender, who had more attestations of community service than any defendant I ever saw in the 18 years I was an AUSA. He cannot be sensibly be viewed as dangerous -- quite unlike many of the crack dealers whose incarceration is now being mulled over.

In the post you're responding to, I said this: "I do have an attitude... The attitude is this: Adults of sound mind are responsible for their behavior. When they try to make a quick buck [by] selling dangerous and destructive drugs like crack, heedless of the damage they are doing, then the problem...is not with the system, the Commission, etc., et al. The problem is with the offender's me-first view of the world."

And that is indeed my view. Too many times I have seen bad actors -- thugs, strongarms and rapacious cheaters, among a legion of others -- blame everyone but themselves. The danger they pose to society will be high, and the chances for genuine rehabilitation low, until that attitude changes. Making sentencing more like a "no-more-excuses zone" is one way to start.


Posted by: Bill Otis | Dec 3, 2007 9:19:17 PM

Good points all, Bill, though I wish your sympathy for Libby might also extend to the likes of less prominent folks like Myles Haynes (who was the focal point of my recent Gertner posts).

If there was reason to fear that the federal guidelines were under-punishing many, I'd hope more judges would show independence by going higher. But the federal guidelines are very high, even though Congress has demanded in 3553(a) that judges impose sentences no greater than necessary. (As the Libby case shows and as you obviously believe, the guidelines in some cases call for long terms of prison time for non-violent first offenders that seem a lot longer than necessary.)

I praise your no-more-excuses attitude, though I wish our leaders --- on both sides of the ailse --- would provide an example for the nation. When our Presidents make excuses for the Libbys and Riches (and their own behavior) it is hard not to be trouble by the sense that only the powerful get the benefits of excuses.

Posted by: Doug B. | Dec 3, 2007 10:57:30 PM

God, Rudy can't open his mouth without lying. 19,000 people will be "affected;" a far smaller number will be released. What a complete hack. Reached his apex as a Mayor.

Oh, and glancing back, I see Bill was taken in. Bill, a guy with a twenty year sentence will get a couple of years off. Probably in ten or fifteen years. What are you scared of? That not long enough for you? Your attitude would mandate a life sentence for everyone. Whom would you spare from a life sentence? I mean, by your lights, they're all terribly dangerous ...

Posted by: David in NY | Dec 5, 2007 8:29:58 PM

As John Edwards said, Hillary, is just a "corporate" Democrat, or rather a Republican in "Democrat" clothes. She was a "Goldwater" girl in highschool and while she claims to be a "Democrat" her husbands NAFTA - Free Tradism - sent those jobs over-seas and they are not comming back. I know plenty of people who could vote for either a Republican or a Democrat but if Hillary is the best the "Democrats" can come up with ---- they will lose. --- Defense Attorney

Posted by: Glen | Dec 7, 2007 11:35:46 PM

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