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March 11, 2010

Varied reactions to the crack/powder reform work of the Senate Judiciary Committee

I have seen or received lots of distinct commentary in reaction to Senate Judiciary Committee's unanimous vote today to reduce (but not eliminate) crack/powder disparity in federal mandatory sentencing statutes (reported here).  Here is a sampling:

From the Office of Senator Jeff Sessions, here is part of this press release titled "Sessions, Hatch Commend Bipartisan Compromise on Drug Sentencing":

U.S. Senator Jeff Sessions (R-AL), Ranking Member of the Senate Judiciary Committee, today joined with Sen. Orrin Hatch (R-UT) in commending the unanimous committee approval of a bipartisan compromise bill to address the disparity in the sentencing penalties between crack and powder cocaine...

Sessions said, “This is an important bipartisan compromise and I especially want to thank Chairman Leahy, Senator Hatch, and Senator Durbin for their efforts. I have long believed that we need to bring greater balance and fairness to our drug sentencing laws. But I have also maintained that a guiding principle of that effort must be that we not place any obstacles in front of the police officers and prosecutors fighting every day to keep our communities and their residents safe. Through this change in the thresholds for mandatory minimum sentences, we will be able to achieve needed fairness without impeding our ability to combat drug violence and protect victims. These reforms strengthen our justice system and I hope the full Senate will consider and act on this proposal.”

From the US Department of Justice, here is the full text of this statement from Attorney General Eric Holder:

"There is no law enforcement or sentencing rationale for the current disparity between crack and cocaine powder offenses, and I have strongly supported eliminating it to ensure our sentencing laws are tough, predictable and fair.

"The bill voted unanimously out of the Senate Judiciary Committee today makes progress toward achieving a more just sentencing policy while maintaining the necessary law enforcement tools to appropriately punish violent and dangerous drug traffickers.

"I applaud the work of the Senate Judiciary Committee, particularly Chairman Leahy, Ranking Member Sessions and Senators Durbin and Graham, in taking such an important step toward reforming our sentencing laws. I look forward to the Senate and the House approving this legislation quickly so that it can be signed into law."

From the blog TalkLeft, here is part of this postfrom Jeralyn titled "Judiciary Committee Waters Down Crack-Powder Cocaine Sentencing Bill":

The 100:1 ratio and mandatory minimum sentences will not be eliminated, but reduced to 20:1. In other words, no equalization. Crack cocaine will continue to carry a penalty 20 times more severe than powder cocaine. Is it an improvement? Yes. Is it good enough? No....

There's more bad stuff in the bill as introduced -- it reeks of Joe Biden-type influences -- increased sentencing guidelines for some drug crimes through application of aggravating factors.

The bill we needed was Bobby Scott's H.R. 3245 which passed the House Judiciary Committee in July. It would have eliminated the "100 to 1" disparity by removing the word "crack cocaine" in the criminal code.

Instead, we get another crime bill with increased penalties and no equalization. Again, while the reduction is an improvement, the bill is a big disappointment.

And last but not least, from lawyer Gary G. Becker, who sent me this passionate e-mail not long after hearing the news:

The Senate Judiciary Committee’s vote to “reduce” the crack cocaine/powder cocaine punishment disparity from 100:1 to 20:1 is a scandalous, racist, and politically motivated act.  In view of the near-unanimous consensus that there is no justifiable basis for punishing crack cocaine more harshly than powder cocaine, and that the 100:1 ratio was both arbitrary and irrational – even DOJ called for elimination of the disparity -- the Senate Judiciary Committee settles on an equally unsupportable, irrational, and arbitrary punishment scheme, one that will disproportionately affect minorities, destroy families, and promote disrespect for the law.

March 11, 2010 at 06:18 PM | Permalink


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When the Committee vote is unanimous, with everyone from Leahy and Feingold to Sessions and Cornyn, critics bear a heavy burden to show that the Committee's action was misdirected, much less "racist."

The unanimous undertaking correctly understands that crack and powder are treated differently in the drug culture, and should be treated differently by the law as well.

I applaud the Committee for moving forward in a bi-partisan and responsible manner.

Posted by: Bill Otis | Mar 11, 2010 7:11:07 PM

Here is what they are really doing. They are loosing black prisoners to return to their black neighborhoods, and to shoot up the place.

Due to the greater speed of upsweep of cocaine levels in the brain from smoked crack cocaine, it is more addictive. If there was an unfair disparity, there is greater justification for increasing the penalty for powder cocaine, than for lowering that for crack cocaine. Much of the increase in crime in the 1980's and in the 1990's was caused by territorial disputes over the distribution of crack cocaine.

If these rates recur, the Congress should compensate the victims.

Posted by: Supremacy Claus | Mar 11, 2010 10:26:59 PM

Tell me about the "drug culture" Bill. Tell me which legitimate sentencing objectives are advanced by the continuing deferential treatment of crack and powder, and tell me why they weren't important enough to justify the 100:1 triggers. Why not make them 200:1 or 300:1?

I think the unanimity is more likely a recognition that Sessions was not going to support anything more rational. Perhaps all those Senators can go home today thinking they've done a good thing.

I'm really dispirited by this sudden change of heart. I suppose I should take Senator Sessions's word that a 1-to-1 ratio would be an "obstacle[] in front of the police officers and prosecutors fighting every day to keep our communities and their residents safe." But I just can't. I can't imagine how I'm any marginally safer. Seems like more people spending more time in prison than the district courts (not exactly a criminal-coddling set) would otherwise order.

Posted by: Texas Lawyer | Mar 11, 2010 10:54:11 PM

Tex: Even a stopped clock is right twice a day, and Supremacy Clod has actually pointed out the difference to you between the two drugs. Why they are chemically similar, they are not the same, and the use, abuse, and effects of the substance are different. The USSC has pointed out in its various reports that this difference is (perhaps) the only real difference and might merit distinction between punishment for the two drugs -- though the USSC has variously said this distinction should be 20:1, 10:1, and even at one time 1:1. So, take your pick, but the two drugs, their use and the enterprise surrounding them are NOT exactly the same.

Whether that difference merits equalization or not is the question. I personally believe equalization is probably best, but I'm not going to quibble between the current ridiculous levels and a reduction to 20:1. Sure, this means that those weasels in Congress will pat themselves on the back and never revisit this issue, but when your dying of thirst do you turn down a glass of water because you'd prefer a Pepsi? I don't think so. I'm shocked as sh#t that those cowards on the Hill are actually even talking about this.

Whatever happens one can be sure that all of the egomaniacs on the bench will continue to ignore the guidelines as they see fit and the drug guidelines, one assumes, will be ritually pegged to the man mins. In that case you'll still have plenty of scumbag crack dealers in places like Boston getting way, way lower than 20:1 in-between the points of the 5 and 10 year man mins (as they already do), while dealers in the 5th Circuit still get the top of the guidelines. Always.

Ain't Booker grand?

Posted by: Ferris Bueller | Mar 12, 2010 8:53:53 AM

Oh, and what about retroactivity? That's the elephant in this room, fellas. 20:1, 10:1, 4.5832:1, none of it means much of anything to the thousands already sentenced under 100:1.

Posted by: Ferris Bueller | Mar 12, 2010 9:03:12 AM

Supremacy and Ferris makes good sense. Has one thought about the levels of Meth.. I looked up the conversion chart on Psuedo in the guidelines, grams of psuedo to Killograms of marajuana.. This is how the guidelines compares it all.. It was the same as crack... I would think this could and should fall to lesser degree as well. Like maybe 40 : 1 as compared to powder...So it would be double of crack. Without the change it would be 5 times of crack, way too high...They have no scientific evidence for this. ALso they should at least give a 2 level drop for meth cases and make it retroactive, like for crack.. Meth is race related for sure.. Whites do meth and blacks do crack...Do the whites deserve less than blacks.

Posted by: Goodyr | Mar 12, 2010 10:22:15 AM

I am a mother of a 33 year old young black man currently serving life without parole (mandatory minimum sentencing)for conspiracy of selling drugs in a state that he never set one feet upon. I know first hand the racism, the disparity, the ultimate plan to imprison miniorities. The politicians and public would rather save, feed and house a whale who kills humans and say my son's life is of no value. He hasn't killed, raped or committed any violence and he does deserve another chance at life. No one knows or sees the hurt and harm of the families; we also live in prison with our love ones. I pray for a change that my son will come home again, take a wife and live a clean life.

Posted by: Susan Snipes | Mar 16, 2010 9:57:18 PM

To Susan Snipes, I feel your pain my husband Michael D. Smith has spent 29 years in prison for a crime he did not commit (and he's still there) this evil Criminal Justice System in Illinois has over 1,000 Clemency that our Govern has not reviewed, and because of politic! he my not ever review them. You are right when to speak of the families; No one cares about us, so we need to come together and respond to these blogs to let the world know we are here. We also need to Advocate for our love ones every chance we get, I'm also praying for my husband and the rest of the families that are prisoner to the evil SYSTEM! I'm reading a book titled The New Jim Crow by Michelle Alexander this book is giving me a clear understanding of what we are dealing with, I highly recommend you getting a copy.

Posted by: Queen Makeda | Mar 21, 2010 11:26:00 AM

well i have a uncle currently incarserated for this same issue and i feel that people that commit murder dont even that much time and its now fair so free my uncle...

Posted by: shalanthia | Apr 21, 2010 1:54:14 PM

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