« The costs of the death penalty in Maryland | Main | Let the sunshine in ... to SCOTUS and all other federal courts »

March 6, 2008

Exposing the (racist?) hypocrisy of Clintonian speeches without solutions

I am pleased to see this new piece at the Huffington Post, titled "Hillary, Bill and Obama on Crack," is trying to bring the Clintons to account for their disappointing and very telling pandering on federal sentencing issues.  Here are the basics: 

While Bill Clinton is apologizing for not having done more to reduce the disparity in sentencing for crack and powder cocaine that is in part responsible for putting one in nine young black men in prison, his wife opposes even the most modest attempt to fix the problem.

Hillary Clinton has come out against making retroactive the small change in sentencing guidelines that allows some people convicted under the overly harsh crack laws to have their sentences reviewed by a judge, and if they are found eligible, given early release.  Most blacks affected will still serve more than a decade in prison for a nonviolent crime for which whites often escape incarceration entirely — but nevermind. Hillary has bought into fears that this means a sudden massive release of an army of Willie Hortons....

As her husband did before her, when it comes time to make a choice between something that can be used as a political tool against her or doing the right thing and explaining the complexity, Hillary chooses expedience.

It's great to hear that Bill regrets sacrificing the lives of IV drug users and their sexual partners and children to his fear of being demagogued on needle exchange and now to learn that he opposes his own policies on drug sentencing.  But it sounds like Hillary will be saying the same things only after she leaves office if she wins it — when it means absolutely nothing.

Some related prior posts of mine on race, sentencing and the 2008 campaign:



March 6, 2008 at 10:40 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Exposing the (racist?) hypocrisy of Clintonian speeches without solutions:


thanks for this great assessment...!!!

Posted by: stiff | Mar 6, 2008 11:22:03 AM

Do you think Barack Obama is qualified to be the next president?

Posted by: | Mar 6, 2008 12:39:48 PM

Followup here from the author of the quoted post:


Hillary and Obama on Crack: Part II

Hillary's position on eliminating the disparity in sentencing between crack offenders and sellers of powder cocaine is more complex than I described in yesterday's post: while she opposes freeing people already in prison under laws that unfairly give overly harsh sentences for crack cocaine in contrast to the powder form of the drug, she is the co-sponsor of a bill that would eliminate this disparity in future cases.

Obama has not signed onto any currently pending legislation on this issue-- although he, too, says he favors eliminating the disparity.

So, Hillary's position seems to be that sentencing people to longer terms in prison for quantities of crack 100 times smaller than those needed to trigger mandatory terms for powder is wrong-- but that people who have already been sentenced unjustly as a result should stay in prison.

While this is much better than doing nothing, it still uncomfortably reminds me of past Clinton actions which privilege pandering over principle. To be fair, however, Obama has yet to commit himself to a specific legislative remedy-- which could open him to similar criticism if his proposals had similar flaws.

Thanks to Bill Piper of the Drug Policy Alliance for the tip!

Posted by: | Mar 6, 2008 12:43:21 PM

12:39:48 PM: This specific post has little content about Barack Obama, and candidly I have no idea what it really takes to "qualified" to be president.

Let's stay on topic. Do you think the Clintons are hypocrites on crack sentencing? If not, please explain why not. If so, please explain why a blog focused on sentencing law should not be concerned about this hypocrisy.

Posted by: Doug B. | Mar 6, 2008 2:21:42 PM

I have not gone back and read every single post on the Clintons, but I don't think that Hillary Clinton is a hypocrite on crack sentencing. She prefers forward-looking reforms to backward-looking reforms. The relevant questions, then, are (1) whether there's any principled basis for holding that position and (2) whether there's any reason to believe that Hillary's position on crack/powder is in fact based on that.

1. I believe she's said in her speeches that the crack-powder disparity made more sense in the past than it does now. I wish she'd elaborate more, but it's not beyond dispute that crack has been a more severe social problem at some times than others. If that's true, then many of the more severe crack sentences imposed in the past remain justified even though we would not impose those sentences for similar acts committed today.

2. Perhaps you can correct me on this, as I was not an adult during much of the mandatory Guidelines era, but it seems to me that even in that era, more things affected the ultimate sentence than just whether the defendant was using crack or powder. One such thing is the availability of departure provisions. Another such thing is the fact that the Guidelines prescribe a range. The judge's subjective judgment was a factor in all of the sentences that people want to crop, and it's impossible to be 100% sure in every case that the only thing doing the extra work was the type of cocaine.

3. Another such thing is the availability of plea bargaining. Prof. Bibas and others (including you, I believe) have written some excellent articles analyzing and discussing the implications of the fact that 90+% of sentences are the result of guilty pleas rather than completed trials. One such implication is the following: suppose that there are 2 defendants. One has committed a number of horrific violent crimes and has also dealt powder cocaine. The second one has committed the same horrific violent crimes, but has dealt crack instead of powder. Suppose further that the evidence of the drug crimes is irrefutable in both cases, but that the violent crime evidence is less strong (witnesses who are dead or inarticulate, etc). If the prosecutor is certain that he can put the crack guy away for 25 years (based solely on the crack charge), but can only be assured of putting the powder guy away for 5 years (based solely on the powder charge), then the prosecutor might be willing to decline to pursue the violent crime charges against the crack guy, while he'd be more interested in pursuing them against the powder guy. The crack guy doesn't get any convictions or do any time for the other charges, and years later, all the legislators would see is that there is a guy doing 25 years for crack.

The point of (1) is that attitudes aren't the only thing that have changed since many of these people were sentenced, and the point of (2) and (3) is that it's not implausible to say "not every crack defendant is serving an unjust sentence solely because of the disparity." Perhaps these arguments are unpersuasive (I'm not entirely sure about them myself) and perhaps they're not motivating Hillary, but I don't think it's implausible or hypocritical for someone to be more comfortable with forward-looking sentence reforms than backward-looking ones. She's actually made the backward versus forward distinction in her speeches, and perhaps she should be pressed further on that.

4. I don't know enough Bill's role in Hillary's campaign to make judgments as to whether "the Clintons" are hypocrites. If Hillary is saying things that are deeply inconsistent with what Bill's saying, she should acknowledge that they disagree on some things instead of using Bill to tell some voters what they want to hear if what they want to hear is something that she herself will not say publicly. Bill has a lot of admirable qualities and accomplished a lot of things as a president, but consistency and faith to principle aren't his strong points.

As for the comment about Barack Obama, I take it from the volume of posts labeled "Clintonian pandering" and from the present post (which, in lieu of analysis or commentary, offers a block-quote, a tendentious headline, and an unsubstantiated accusation of racism), that you made up your mind a while ago that Hillary is a racist because of her views on sentencing and unfit to be president, and that you're currently more interested in repeating that view than in examining it any further. Hence the question about whether you've given any thought to who should be president. Perhaps I'm wrong about that. To your credit, you've provided further explanation of several terse and controversial posts in the past when pressed, and perhaps my comment about Obama was uncalled-for.

And as for the admonition to stay on topic, I appreciate it and hope that you're less tolerant in the future of the similar off-topic shenanigans of "bruce," "George," "federalist" and assorted other frequent commenters.

Posted by: 12:39:48 PM | Mar 6, 2008 5:25:47 PM

12:39:48 PM,

What's ironic about your comment is that if powder cocaine and crack cocaine were sentenced equally, as they should be, then the prosecutor would be willing to decline to pursue the crack charges, and pursue the VIOLENT criminal charges, which are most serious. Humm...
You committ a VIOLENT crime and also have crack on you. You are prosecuted for the NONVIOLENT CRACK charges b/c the D.A knows he can put you away longer than the VIOLENT RAPE charges...
So when crack defendants do more time than those that commit violent crimes, yes your arguments are unpersuasive and it furthers the need for the UNJUST disparity to be changed...
Also if you came into a bar smelling like swamp sewer and I said you stink, that doesnt mean that I dont like you, Im just telling you how you smell. Which is what Doug is saying about Hillary.
Lastly, if you are not on point with you argument you will be told so by someone on the post, so youngster try not to take it so personal.

Posted by: stiff | Mar 6, 2008 6:06:37 PM

stiff, I appreciate your comment.

I agree that prosecutors should see to it that murderers are punished directly through murder convictions instead of indirectly through crack convictions.

And I also agree that unjust crack sentences enable more of the latter.

My point, though, is that looking back at one of those cases, one says "the guy's got the sentence he deserves for what he did, but the prosecutor should have gone after him for murder rather than crack," not "that guy's in prison for much longer than he deserves, just because his coke happened to be crack instead of powder." And as such, it's not racist, unprincipled or hypocritical, in my view, to be skeptical of legislation that would retroactively reduce the guy's sentence, but at the same time be willing to change the disparity going forward. The argument isn't unassailable, but it's there.

And no, I don't take any of this personally. I don't particularly like either of the Clintons or Hillary's rivals. I'm just (1) curious about the accusations of hypocrisy, and (2) explaining an earlier comment in response to a request from Prof. Berman to do so.

Posted by: 12:39:48 PM | Mar 6, 2008 7:53:59 PM

I think the idea that prosecutors "should" do things like prosecute murderers sounds better than it is. Trials etc. are scarce resources. If you can put a thug away for along time, why not do so in the easiest manner possible. Obviously, victims may want vindication etc., and that's an important thing, but where I can incarcerate a dangerous criminal for a long time, I don't really care what charge is the one that brings him down. Hell, they got Capone on tax evasion, did they not?

Posted by: federalist | Mar 6, 2008 8:02:58 PM

Thanks for your engagement, 12:39:48 PM, but I hope you've discovered how hard it is to make a truly principled argument to justify a set of sentencing rules that have been repeatedly deemed unjust and racially biased by the expert US Sentencing Commission for over 12 years running.

Plus, supporting retoractivity in this context just means giving federal judges an opportunity to consider whether a sentence reduction would now be fair for some defendants. No one is automatically released -- retroactivity is just a way to make past offenders ELIGIBLE for (slightly more) justice that had long been denied. The USSC (now filled with Bush appointees) voted unanimously that justice supported retroactivity.

If Bill Clinton had seriously tried to work with the USSC to achieve better sentencing justice while he was Prez or even in the 8 years since then, the utter outrageousness of his new convenient "apologies" and Hillary Clinton's position now would not grate on me so much. And the broader hypocrisy concerns the Clintons' long-standing PR campaign that they "feel our pain" when in fact they actively helped create/increase the pain of incarceration for many non-violent drug offenders and their families.

I try not to call people racists (in part because the label is crude and lacks the nuance that is essential for healthy dialogues about the role of race in the criminal justice system). But when Bill gives speeches now asserting he is sorry for his role in perpetuating racial disparities, and there is no evidence he has EVER actively sought to work on these issues, I think it is fair --- indeed, essential --- to encourage folks to think if race may be (perhaps subconsciously) playing a role in the way the Clintons approach these matters.

Posted by: Doug B. | Mar 6, 2008 8:59:46 PM

Doug, I agree with you--Clinton's apologies are annoying, precisely because he is so dishonest, but that's no reason to suggest Hillary is racist.

One thing that is profoundly irritating about this debate is the whole "racial disparity" claim. The crack/powder distinction either is or is not justified, without reference to whose ox is gored. In other words, the racial makeup of those swept up is irrelevant.

And let's not forget that petty drug criminals do a lot to make neighborhoods populated by largely minority populations unliveable. It will be interesting to see how many early releasees wind up victimizing others.

Posted by: federalist | Mar 6, 2008 9:40:43 PM

federalist, do you honestly believe that there would have been a crack-powder disparity in the first place if the racial disparity did not exist?

Also saying that the crack trade make neighborhoods unliveable is overstating manners greatly - when I was an assistant public defender, I used to live in an area that the police claimed was a "high crime-high drug" neighborhood. Why did I live in such a place - because other than the small section of that city where I couldn't afford to live on an assistant public defender's salary, the entire small city was a "high crime-high drug" area. That isn't to say that only the rich section was livable - where I lived was by no means a bad area - the "high crime-high drug" label was just put there by police as an excuse to harass the Black residents. Before that, I lived in South Arlington (VA), an area also known as being a "high crime-gang area" and that was definitely not the case at all (yes there was MS 13 and SSL graffiti around there, but they leave the young largely White professional population alone). Yes, there are some truly dangerous areas, but just because an area is a "drug" or "gang" area doesn't mean it is unliveable. The Washington Post also printed some articles that exposed how the "high crime" area is largely applied to areas simply because they have minority residents and that many "low crime" White neighborhoods in Washington, DC actually have higher crime rates than the "high crime" Black neighborhoods.

Just because the police (who always say areas are high crime to justify searches), politicians like Hillary Clinton who attempt to pander to voters fear of crime, and the media says someplace is high crime doesn't mean it is the case. The Clintons' pandering on crack is just one more example of how fear trumps reason. Whether it is racist or cynical is an open question - likely it is cynical in that it is designed to exploit the racism of the audience.

Posted by: Zack | Mar 7, 2008 10:54:00 AM

yes, I do--remember, the CBC was pushing hard for Congress to come down on crack . . . .

Interesting observation re: leaving the white professional population along. I agree that's a phenomenon, having seen it myself . . . . but they aren't leaving others alone, and so I am I supposed to be ok with that--I thought we lived in a society and it is immoral for people to have an "it's just between them" attitude, and I myself don't particularly care for MS-13 graffiti, nor do I particularly appreciate having to live in a detente with gangbangers.

Posted by: federalist | Mar 7, 2008 1:21:58 PM

Senator Clinton has absolutely nothing on Senator Obama on criminal justice issues, particularly those that affect the poor and racial minorities. He managed to convince a unanimous state senate to get behind taped confessions of all murder interrogations and also implemented legislation requiring police officers to record the race of all drivers in traffic stops. When you hear Senator Clinton say that she has a problem with retroactivity "in principle," that is just pandering.

Posted by: Alec | Mar 7, 2008 8:46:25 PM

I do not mean to suggest that gangs like MS 13 are not dangerous (they are). My point was to contrast media reports with reality and in case it was too subtle, there actually were not any MS 13 members near where I lived in Arlington, but if you listened to media reports you would have gotten the impression there were MS 13 members sitting on every street corner.

Posted by: Zack | Mar 10, 2008 2:09:24 PM

Zack, you sure do pivot a lot in your posts. I'll leave it at this . . . . what's cynical is your not-so-hidden assertion that things are less bad if the white professional population is left alone. Gangs are really bad news for kids, and if they are present in an area, they hurt kids. And I, for one, am not so keen on getting security in exchange for allowing gangbangers to recruit kids. Moreoever, what "young white professional" in his right mind would want to live in a place where, if their kids happen to cross one of the gangbangers, serious harm could result. Criminal gangs are a cancer. They need to be rooted out. And if we deport some MS-13 to Central America, let's hope that the Mano Dura policies down there take care of business.

Posted by: federalist | Mar 10, 2008 9:55:36 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB