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March 18, 2010

Will and should House adopt the crack/powder reform compromise passed by Senate?

As detailed in this post, late yesterday the full US Senate unanimously approved legislation to reduce (but not eliminate) the notorious 100:1 ratio in the amount of powder cocaine versus crack cocaine that trigger statutory mandatory minimum sentences.  This compromise legislation as passed by the Senate cuts the ratio to roughly 18:1 and does so by keeping powder sentences the same and essentially reducing the severity of the mandatory minimums for crack offenses.  As I have noted in prior posts, most advocates for crack/powder sentencing reform view this Senate compromise as an improvement over the status quo, but a lot less than was sought/hoped by reform advocates.

The next big question, then, is whether the House will adopt this compromise so that it can become law (and, relatedly, whether the most vocal advocates for more significant reform will urge the House to adopt or reject this Senate passed reform).  Thought I can make lots of strong arguments for why the House should not be content with what has passed in the Senate, I also think that getting even some little reform done ASAP is now a lot more important than getting the best possible reform. 

In short, to answer the normative question in the title of this post, I think the House should adopt the crack/powder reform compromise in the exact form that was passed by Senate yesterday.  (I reach this view in part because, as I will explain in future posts, the US Sentencing Commission could and should "enhance" the impact of this reform through subsequent guideline amendments.)  But I am not sure if the House will, or if others agree that the (less-than) half-a-loaf crack fix passed by the Senate is good enough for now.

March 18, 2010 at 10:40 AM | Permalink


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I tend to agree that the House should pass the Senate bill in its current, albeit imperfect, form with the 18:1 ratio. A similar argument is being made right now with respect to the pending health care legislation. Although a number of progressives in the House have said the Senate health care bill doesn't do enough, the bill's supporters have argued that they should pass the bill now, and then in the coming years refine, tweak, and perfect it, as they claim has been done with social security and medicare. So, under this logic, by reducing the ratio to 18:1 now, the disparity between crack and powder cocaine will be put on the road to extinction.

Posted by: Steve Kress | Mar 18, 2010 11:54:46 AM

Steve, this will be a much different House vote dynamic than on healthcare. IMO there's no great risk strategically in going for more in the House. The Senate bill will become the baseline; it can only improve or stay the same if they try for more. Try to get 1-1 or close to it out of the House, go to a conference committee, and see what happens.

Posted by: Gritsforbreakfast | Mar 18, 2010 2:45:24 PM

Considering that the Senate bill as introduced would have cut the ratio to 1:1, but the ratio had to be set at 18:1 to ensure that it was passed, it seems unlikely that if the House proposes a 1:1 ratio, the Senate in conference is going to turn around and agree to the very thing they already rejected. Then again, this is Congress and stranger things have happened.

Posted by: Steve Kress | Mar 18, 2010 3:03:22 PM

Maybe so. A lot would depend on how close you are in the Senate, I suppose. If you're very far from 60 then maybe you're right it's futile.

OTOH continuing to press for more would keep the issue out there and make sure you didn't leave the public impression the problem was "fixed," which it might if all the reform groups sign off on it. That's certainly how the pols will portray it.

I doubt the bill would get worse and, like you said, you never know: Never been a horse that can't be rode, never been a cowboy can't be throwed.

Posted by: Gritsforbreakfast | Mar 18, 2010 3:17:48 PM

Steve. Just as a matter of strategy it really depends on WHY the 18:1 had to go through. It may be that some Senators just wanted the political cover so that a vote wouldn't be used against them in a campaign but they would be only too happy to go along with the House if that was the will on Congress.

I don't follow the politics of drugs enough to know for sure but my instincts based upon years of experience in the Senate tell me the Grits is right about not having anything to lose by going for it all.

Posted by: Daniel | Mar 18, 2010 3:46:01 PM

The debate here is polite. What really happened is that the 100:1 ratio is a conservative pet project, and now they want to say they were wrong, but not really, well, maybe just a little bit, but not really. Elimination of the disparity was going to pass until Judiciary Committee heavy-hitters Sens. Orrin Hatch (R-UT) and Jeff Sessions (R-AL) got in the way. This is how they take responsibility.

Everyone who pleads guilty to possession of crack should say, "I am guilty, Your Honor, but I'm not."

Posted by: George | Mar 18, 2010 3:57:36 PM

There had been a compromise bill floating out there that would reduce the disparity by increasing powder sentences and decreasing crack sentences. This deal appears to have a ratio similar to that bill, but doesn't increase powder sentences.

On suspects that this is what motivated the bill.

Posted by: ohwilleke | Mar 18, 2010 4:22:35 PM

The other big issue is that empirical one.

A prior post says about 3,000 people will have reduced sentences and many of those with more than 28 grams but under 280 grams, will be possession cases where there is not a mandatory five year sentence under the bill.

How many cases would be impacted by a further drop from 18:1 to 1:1? If the difference isn't that big, then the deal is a good one.

Another way to negotiate changes with a House bill would be to adjust some of the key rules for counting grams, rather than the number of grams. For example, rules governing how inactive ingredients are counted could be changed.

Posted by: ohwilleke | Mar 18, 2010 4:30:06 PM

I like the sound of that, but I'm not sure about the last part...I mean who would be?

Posted by: Buy Spanish Content | Mar 18, 2010 8:27:39 PM

Here's the Elephant in the room. The 100:1 crack/powder ratio is considered discriminatory because it is known or presumed that African Americans are more likely to be caught with crack cocaine while their white counterparts are more likely to be caught with the more expensive powder cocaine. So, to reduce this to 18:1 is to say this Country and its Judicial System will no longer tolerate 100% racism, however, it will continue to condone 18% racism. How would that have worked in the 60's? Black people wouldn't have been banned from 100% of the lunch counters in the south - only 18% of them. And Black people wouldn't have to sit all the way in the back of the bus - just 18% of the way. And suppose the Emancipation hadn't freed all of the slaves - just 82% of them, and the remaining 18% would remain enslaved. Who is this bill appeasing and why and who is it harming?

Posted by: hope4justice | Mar 18, 2010 11:56:01 PM


Black politicians,reacting to the devastating outbreak of inner-city violence and addiction brought on by a new form of cocaine,were the prime movers in sounding the initial alarm about this drug.

It is not fair to infer that this has been some grand conservative conspiracy from the outset.

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