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April 28, 2009

Is the new DOJ about to crack the stalemate over fixing the crack disparity?

For many years, politicians and lawyers on both sides of the political aisle have been saying that the notorious 100-to-1 crack/powder ratio in federal sentencing statutes was unjust and should be fixed.  But, especially in the legislative and executive branches, there has been mostly talk and little action on this front.  (Some in the federal judiciary, thanks to Booker and Kimbrough and the new USSC reduced and retroactive crack guidelines, have been working toward means to better achieve case-specific justice even while other branches have avoided dealing with these issues on a systematic, system-wide basis.)

With a new DOJ sheriff in town, however, there is now good reason for those eager for reform to be more hopeful than cynical.  And, though there has been little formal action on this issue to date, a hearing in Congress scheduled for Wednesday — which just happens to be President Obama's 100th day — could mark an important turning point in both the debate and the practical realities of crack sentencing. 

As detailed in this official notice, the Senate Committee on the Judiciary, Subcommittee on Crime and Drugs will hold a hearing entitled "Restoring Fairness to Federal Sentencing: Addressing the Crack-Powder Disparity" on Wednesday morning.  And, as indicated in this new CQ Politics article, some inside-the-Beltway folks think that something big and consequential might be brewing:

Troubled by the disproportionate effects of the sentencing disparity, members of Congress as well as federal officials have been working in recent years to fix the problem.  In 2007, then-Sen. Joseph R. Biden Jr. , D-Del., introduced legislation that would end harsher sentencing for crack vs. powder cocaine.  A co-signer of the legislation was Barack Obama , D-Ill.

Now that Obama and Biden are in the White House, those who advocate for fair and proportionate sentencing laws say they have good reason to hope that Congress will put sentences for crack and cocaine on equal footing.

The Justice Department is sending Lanny Breuer, chief of its criminal division, to testify at Wednesday’s hearing, which is a positive signal from the Obama administration, said Mary Price, vice president and general counsel for Families Against Mandatory Minimums.

In this arena, I am disinclined to predict or even expect change until I see it with my own eyes.  But I think it is quite understandable for the folks at FAMM and at The Sentencing Project to be especially hopeful that a new DOJ might help finally forge a new path.  Stay tuned.

Some recent related posts:

April 28, 2009 at 07:53 AM | Permalink


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Will the DOJ Address the Crack Disparity Tomorrow?: At Sentencing Law and Policy, Doug Berman speculates that tomorrow, President Obama's 100th day in office, could be the day that the DOJ decides to tackle the "100-to-1crack/powder" federal sentencing... [Read More]

Tracked on Apr 28, 2009 5:24:23 PM


What part of my comment on the previous crack posting did you not understand? The Administration states publicly on its website that it wants to compeletely equalize crack and powder sentences, and will so urge this Wednesday.

Posted by: anon | Apr 28, 2009 8:46:40 AM

Doug, do you agree with Obama and Biden that crack and powder should be on the same footing?

Posted by: federalist | Apr 28, 2009 3:05:53 PM


Posted by: Doug B. | Apr 29, 2009 11:17:58 AM

Why? Simply because the two are both, in some sense "cocaine"? Crack seems a lot like meth to me in terms of attributes. Why wouldn't meth be a better comparison?

It may be that the racial disparities are what drives you to the conclusion, and that's fine. But if that's the case, then strict penological objectives are not what are driving your conclusion.

Posted by: federalist | Apr 30, 2009 3:29:05 PM

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