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May 20, 2009

Upcoming House Judiciary subcommittee hearing on crack sentencing

As detailed on this official hearing page, the Subcommittee on Crime, Terrorism, and Homeland Security of the House Judiciary Committee has a hearing on crack sentencing scheduled for the morning of Thursday, May 21.  The title of the hearing is "Unfairness in Federal Cocaine Sentencing: Is it Time to Crack the 100 to 1 Disparity?" and the witness list suggests that everyone involved will be speaking out against the current 100:1 drug weight ratio that now exists in federal statutory sentencing provisions.

Even though this hearing suggests continuing momentum for change to the current crack/powder statutory status quo, I remain depressingly skeptical that major federal sentencing changes in this area (or others) is imminent.  The many political challenges of reducing sentences — as well as the many practical challenges of giving retroactive effect to any reduced sentences — has thwarted needed reforms in this area (and others) for more than a decade.  I continue to hope that key legislative players get past talking the talk in Congress and start walking in the walk with actual legal changes.  But, until then, I encourage expectations to remain low, even though hopes are justifiably now very high for federal sentencing change we can believe in.

Some related recent posts on crack sentencing debates:  

UPDATE:  Jeralyn at TalkLeft discusses this upcoming House hearing in this post.  More info can also be found at The Sentencing Project.

May 20, 2009 at 03:07 PM | Permalink


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Professor: Don't be so glum. If the hearing last month is any indication you and the braying masses of short-sighted "fairness" advocates will get what you want - and an accelerated deterioration of the inner city is only a few thousand swinging prison doors away.

Boxer, Klobuchar and the rest of the panel were distressingly ignorant about the facts in this debate such as the empirically more dangerous profile of crack defendants and the devastating impact retroactivity will have on communities at the last show hearing. They also exhibited their utter contempt for serious consideration when it was revealed that they had not even thought about retroactivity before it was mentioned at the public hearing! When this troublesome topic was raised it was quickly batted down in favor of some effusive platitudes about fairness and equity that play better for the cameras. How's that for informed policy consideration!

So don't fear Professor, your team is probably gonna get "parity" and be able to claim victory for the totally imaginary "little guy" with his sugar packet of crack (who is suspiciously absent from most of the statistics) - while the poor residents on the corners of this nation get it in the neck again. Hello race politicking and invited disparity, goodbye reasoned sentencing policy debate.

The cliche is that those who refuse to study history are doomed to repeat it. It's not true in this case. Here it's the elites who ignore history and whitewash the facts while dooming OTHERS to repeat it.

One has to wonder how balanced the debate is, or whether it is a debate at all, when there isn't a discouraging word to be heard in front of Congress. You note in yourself that their isn't a single panelist who will be talking about the empirical evidence regarding powder and crack defendants. No, instead we'll get the heartwarming tale of a baseballer who, because of a slumping average and a vulnerability to the back-door slider, turned to selling crack. Boo-f'ing-hoo. He's a fair representative of a defendant population that has nearly half scoring a CHC of IV or above with a raft of felony convictions and nearly a third using a firearm in their offense?

It doesn't take a rocket scientist to discern what the purpose of this production this AM is about - and it ain't about debate. So chin up Professor, you're gonna be sleeping soundly very soon - as long as you don't live in a poor neighborhood.

Posted by: CrackFacts | May 21, 2009 10:09:20 AM

Just curious, CrackFacts, do you live in a poor neighborhood? Do you know anyone who was imprisoned for a much longer period of time ONLY because they were involved in a crack offense instead of a powder offense?

You are right to note that Aikens is not "a fair representative of a defendant population that has nearly half scoring a CHC of IV or above with a raft of felony convictions and nearly a third using a firearm in their offense." But you fail to deal with the fact that OTHER sentencing rules properly provide for defendants with guns and criminal history to get much longer sentences. In other words, you are conflating the ratio debate with a debate over OTHER aggravating circumstances.

You suggest that there is empirical evidence of "devastating impact retroactivity will have on communities." Can you point to that evidence? I have not seen any reports that the lower crack sentences made retroactive by the US Sentencing Commission has had a devastating impact on any communities, but maybe they are out there. If so, I want to report them so that the debate is truly informed.

Your moniker, CrackFacts, suggests you have facts to support your claims. Can/will you provide cites/links to those facts so I can see the basis for your assertions? Thanks.

Posted by: Doug B. | May 21, 2009 10:33:55 AM

There is no "conflation" involved. We covered this the other day and it is slight of hand on the part of advocates for parity. There are plenty of places in the guidelines where the base offense level or the specific offense characteristics permissibly "double count" criminal history or other factors to properly differentiate culpability. The "ratio" debate always misses the point by saying "crack is the same drug as coke" (which, again, is not a universally held belief) and steadfastly refuses to look at the disparate impact that the crack trade and the crack offender has on communities. Disparate behaviors and consequences call for disparate treatment for the offenders and focus on the chemical makeup of the substances is misplaced.

You call for facts but in nearly all the posts I've made the last few days I've given you those facts from the USSC that, without any objection, clearly show the disparate profile of the crack offender and thus support disparate treatment (perhaps not 100:1 treatment, but certainly not parity).

Though it makes no difference to the debate, yes, I do live in a working class neighborhood in a major city that was utterly changed by the crack trade. And yes, we still do have trade on the corner, though that trade tends to be weed these days. And yes, I know neighborhood people whose grandmothers and baby mommas think their Boo got a raw deal - as do all family members of offenders everywhere. While I have empathy for their plight, I find their arguments to be about as persuasive as Mrs. Lay's arguments were when she and Kenny-boy had to sell their mansion after Enron imploded. Granted, I do have much more sympathy for grandma and Boo since they didn't have the options Kenny-boy did. But I don't feel that making a lot of smug professionals feel better about themselves is worth letting Boo set up shop on the street where my children live. Do we even have to talk recidivism rates for CHC IV-VI offenders Professor? Do you see the ridiculous extreme positions parity has forced upon it's purveyors? It's four hard-luck baseball players to 40,000 unreformable thugs. Should retroactivity happen these offenders are a nothing more than a pending flood of misery for many struggling communities.

Further, intellectually the position of parity abandons all empirical principle which has been the heart of progressive sentencing arguments for the past couple of years. It flies directly in the face of using empirical data to support penal decision-making. Forgive me, but it appears hypocritical. It's no wonder to me that these hearings are all about sad stories - because that's all advocates have.

Where's your empirical evidence? It seems to me the burden should be on the people advocating a change to support that change with facts. We know that the offenders and their mommas think this is an outrage, but where is the data that shows crack offenders don't have a disparate impact on communities versus the powder (mule) trade?

The facts we are all aware of show that use of mandatory minimums, despite all the sob stories on display, correlate with the drop in the trade and a drop in violence. While correlation doesn't equal causation, you've got absolutely no data to support the contrary.

I just wonder how many supporters of parity would be so anxious to bet the streets in front of their houses on it. Just how much do they trust their "gut"?

In the end, saying that the 100:1 ratio doesn't make since or "isn't fair" does not automatically make true that parity makes sense or is fair either - mostly because anyone taking a cursory view at the offender class data and the realities of community impact can't make that premise stick. I won't argue that 100:1 isn't a response that has outlived its usefulness, but parity is at least an equally devastating mistake - and retroactivity is a MADNESS that will burn every scrap of progress in the inner city over the last 15 years. Crack played out in communities much more violently and destructively than powder. Can you dispute this? The USSC numbers clearly support this by showing that this offender class had more serious criminal history and were more likely to use weapons than any other drug offender class. So the results we saw on the corner was not surprising.

I'm sorry that some people are blinded by a handfull of individual hard luck stories and unswayed by whole devastated communities and the clear portrait of the crack offender painted by USSC statistics, but those are the facts that are pertinent; they exist in black and white.

Posted by: CrackFacts | May 21, 2009 12:11:05 PM

I share your interest in data, CrackFacts, and that why the work and input of the USSC and DOJ seems so critical here since they have the time/money/energy/statutory requirement to work through this data. Notably, the USSC in 1995 first called for 1:1 and they only urged other ratios when Congress rejected 1:1 in 1995. Now, DOJ is calling for 1:1. I share you concern that DOJ (and every other government agency and professional group) is filled with a bunch of "smug professionals," but that concern does not undercut my hope/belief that the prominent individuals in DOJ are just "blinded by hard luck stories" and have balanced competing concerns and to still come out now in favor of 1:1.

Finally, and perhaps most importantly, you assert (without any data) that "retroactivity is a MADNESS that will burn every scrap of progress in the inner city over the last 15 years." We have now already had a year-long dose of controlled/partial retroactivity from the USSC's crack reductions AND I am yet to see any evidence of madness taking place (though, as you right note, I do not live near any cities that felt the brunt of the 1980s crack epidemic).

I agree that facts are pertinent, so what is the basis for your assertion that there are "40,000 unreformable thugs"? Moreover, part of the factual story is the policy judgment of the folks now appointed to help run the federal criminal justice system. Though you can/should feel free to disagree and advocate against the judgments those folks are now making, as of this writing it remains the fact that the current US Department of Justice believes 1:1 parity is the best policy (though, notably, DOJ has so far hedged on retroactivity).

Posted by: Doug B. | May 21, 2009 1:05:31 PM

The current DOJ politicos are "blinded" by self-serving politics. I totally agree with your earlier assessment that DOJ brass probably could care less about actually achieving parity - the main goal seems to be self-congratulatory back-patting on C-SPAN. Ultimately, without the GOP boogeyman to blame, I do think the Congress will be forced by traditional constituencies to pass one of these bills. Also, you know as well as I do that the 1995 USSC is not the current USSC. And the 1995 vote was close - 4-3, I think - so while I agree that citing to the data and opinions in the plethora of USSC reports is useful, let's not forget that the USSC is political too.

All of this is to say that you'll excuse me if I take Lanny and Ricardo's public statements in the political context for which they are given.

Now for the madness...

Retroactivity for 1:1 parity is not the same as the recent 2 level adjustment and you do yourself a great disservice to compare the two issues. I know you know better.

First, and most obviously, this would effect tens of thousands more than the recent adjustment. Despite what was generally reported, the recent retroactivity exercise was a pretty serious strain on a lot of resources and this will dwarf that.

Second, unlike the recent adjustment, this will dump THOUSANDS of prisoners on the street. Most of those who got the two level break remain in custody - and will do for a long time. Retroactivity in this case is completely and totally different since it will actually release thousands immediately (or as immediately as an overburdened BOP can handle it). Thousands of new probationers that, even for those that foolishly believe CHC VI offenders can reform, will obviously be ill-equipped to adjust. And probationers that will be impossible to supervise by a overwhelmed probation system.

Third, unlike a general criminal amnesty that would more equally effect many regions and communities and better distribute the effects of a mass release, these defendants are going to be concentrated in a few specific places like metropolitan Washington, Orlando, and Greater LA where the same lack of opportunity and culture of violence that led many into a criminal existence in the first place still reign. For example, there are very few jobs in the DC metro area for middle class people with a high school education and NO criminal record, yet you'd have the BOP release these guys en masse into that already broken community?

The 40,000 number isn't an accident. The USSC reports an average of 5,500- 5,700 crack sentences per year, every year. The average (mean) sentence for crack is (and has been) 120 months for a long time. Ten years = ~ 55,000 - 60,000 currently in prison eligible for release if retroactive parity becomes the law. Only 30% of these offenders are in CHC I or II and therefore less likely (but still likely) to recidivate. Everyone else is an almost certain recidivist statistically. Voila: ~40,000 back on the game, and I'm even being hopeful about the CHC I's & II's.

I'd like you to just think, for example, what releasing, say, 500 CHC IV-VI offenders with little or no supervision in Columbus might mean to you.

Multiply that by 10 and you might get a sense how someone in Orlando, Atlanta, or Washington might feel.

A mass criminal release of crack defendants will be like setting off a crime bomb in places like DC.

Thus: retroactivity is MADNESS.

Posted by: CrackFacts | May 21, 2009 4:57:56 PM

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