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February 25, 2008

Interesting new op-ed on crack sentencing and clemency

Two of my favorite co-authors, Profs Marc Miller and Steve Chanenson, have this new op-ed in the Dallas Morning News headlined "Bush should give clemency to fix unfair crack sentences."  Here are excerpts:

Crack is back before Congress. Attorney General Michael Mukasey has come out against a new sentencing policy designed to bring a partial measure of fairness to the sentencing of federal crack offenders.  Crack is creeping back into the presidential campaign, where there is great need for leadership on this fundamental issue of race and justice....

Last year, the [US sentencing] commission proposed and Congress accepted a modest adjustment in the sentencing guidelines that prospectively reduces crack penalties and narrows the quantity-based punishment gap at points. Bravo.

Administrative concerns often require new rules to be forward-looking only. In this case, however, the commission tried to correct punishments that its expert analyses revealed were much too harsh and affected blacks unfairly.  So the commission voted unanimously to give federal judges the power to apply the new crack rules retroactively. Bravo again.

The commission's retroactivity vote does not mean automatic release for the roughly 19,500 current inmates convicted of crack offenses. Rather, it will permit judges to reduce existing sentences consistent with the new rules if they think it appropriate in individual cases. The Justice Department claims that resolving these cases in court will be too time-consuming and is urging Congress to overrule the commission on retroactivity.  Barack Obama supports retroactivity; Hillary Clinton does not.

In a late 2000 interview, President Bill Clinton said "the disparities are unconscionable between crack and powdered cocaine." But his attorney general helped kill the commission's 1995 proposal to eliminate the crack-cocaine disparity.  In 2001, President-elect Bush said he believed that "the powder-cocaine and the crack-cocaine penalties [should be] the same. I don't believe we ought to be discriminatory." Yet his Justice Department not only opposed both of the commission's recent crack decisions but is seeking legislation preventing the new rules from applying retroactively in many cases.

If Mr. Bush still believed what he said in 2001, he could deal with retroactivity in a streamlined fashion by exercising his clemency power.  This would address the workload problem that troubles his Justice Department. More importantly, the president would make a dramatic statement about racial justice and perhaps goad a recalcitrant Congress into fixing the underlying racial inequity in federal drug penalties.

But any suggestion that presidents make use of their constitutional clemency power has become deeply suspect. The federal pardon and clemency power has fallen from grace. Critics believe pardons and commutations have become partisan tools cynically wielded to benefit primarily the rich and powerful. There is, however, another tradition of pardon and clemency: Presidents over American history have used this constitutional power to fix and publicly address occasional systematic injustices.

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February 25, 2008 at 05:15 AM | Permalink


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