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July 29, 2010

A few not-so-accurate headlines about Congress's work on crack sentences

One can find lots and lots of effective traditional media coverage of yesterday's work by Congress to finally pass a bill to reform crack mandatory minimum sentencing provisions (basics here).  However, in looking over some of the headlines in Google news, I saw a few that were a bit misleading:

As informed readers know, Congress has only reduced the crack/powder disparity in the Fair Sentencing Act of 2010, it has not eliminated the disparity.  Also, in my view, it is not accurate to call what Congress has done will bring "big changes" to crack sentencing.  I see the FSA of 2010 as more of a tweak than a big change, and a lot of the long-term impact will depend on how the US Sentencing Commission makes corresponding changes in the crack guidelines.

This effective commentary by Chris Weigant over at the Huffington Post, which is headlined "Cocaine Sentencing Injustice Slightly Lessened," describes the reality of the statutory changes and also captures many of my feelings about these sentencing developments.  It ends this way:

This is landmark legislation, I realize.  Moving away from the "lock them all up" mentality, for politicians, is remarkable simply because it does not happen often (read: "ever").  Backing down on Draconian drug laws is not exactly atop the priorities list of many politicians, because the ads attacking them for doing so just about write themselves.  So I do applaud Congress for addressing the issue (both houses have now passed the bill).

But, at the same time, what they've done is to change the ratio of unfairness from one-hundred-to-one (500:5) down to roughly eighteen-to-one (500:28).  The penalties for crack and powder cocaine are still nowhere near parity.  Someone possessing an ounce of crack will get a much stricter punishment than someone possessing a full pound of powder cocaine.  It's as if we decided to make coffee illegal, and instituted mandatory minimums for possessing five cups of coffee -- while at the same time applying the same penalty only if you were caught with 500 cups of espresso.  Or made water illegal, but set a much higher bar for possessing 500 ice cubes.  Either way, it is the same substance.  The only thing which differs is the penalty for the "lower class" version of the substance.

Meaning that even the newly-passed bill is not exactly an exercise in equality under the law. Not by a factor of eighteen.  President Obama, to his credit, called for true fairness on the campaign trail, when he said that the disparity in crack/powder cocaine punishment "cannot be justified and should be eliminated."  He was right.  It should be eliminated.  Either start jailing a lot more suburban white kids (which would cause its own kind of outcry), or stop jailing inner-city folks disproportionally.  Lower the bar for powder, or raise the bar for crack, in other words, until the penalty is equalized.

While Congress did not have the courage of their convictions to do so this time around, they did take a baby step in the right direction.  This is momentous, because it is the first such step in this direction in three or four decades.  But I still can't help but wish that Congress had tackled the problem not in such an incrementalist political fashion, but rather as an issue of rank inequality to be rectified by removing all of the legally-codified unfairness at once -- to restore the concept of equal treatment under the law, rather than perpetuating (if slightly lessening) the inherent injustice which still exists.

July 29, 2010 at 10:00 AM | Permalink


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Crack is more addictive and erodes addicts faster and much deeper than powder does.. Its a fair deal as is..But the other amendments in the bill are going to raise the sentences quite a bit.

Running a drug house, 2 levels, made a credible threat to use violence, 2 levels. ( is that general enough, could rope a steer at a 100 ft away with this one) Oh speaking oempt to bribef 1000 ft, even if they didn't mention it...

Bribed or made an attempt to bribe authorities. increase of at LEAST 2 levels.

The hits just keep on a rolling...

No this bill isn't about fairness at all. Its about continuing to jack up sentences...

Votem all out of office, then fire the newcomers..

Posted by: Abe | Jul 29, 2010 11:11:57 AM

If Abe's point is that there is not much to celebrate in this Act, then I agree. It imposes a still unjust ratio (although this is a good start), while simultaneously dictating new upward adjustments for all drug crimes. It also prevents a mule from receiving a further downward adjustment if he received any compensation (even if minimal), while ensuring an upward adjustment if an organizer gave only minimal compensation to a mule. Isn't that a bit one-sided?

Here's how it sounds like the bill's negotiation went: "I'll give you z (even though you asked for y and y is most just), and you give me a, b, c, d, and e."

After reading the Act, I realize there's not as much to celebrate as some would have us believe.

Posted by: DEJ | Jul 29, 2010 12:46:09 PM

True, there is some "bad" mixed in with the "good" from defendants' points of view but all the potential increases in guidelines calculations mentioned in the comments, which were tacked onto this bill, can still be mitigated by judges through downward departures or non-guidelines sentences. The problem has always been those immutable five- and ten-year mandatory minimums. They haven't gone away completely but they are now triggered by significantly higher crack weights, giving judges whose hands were previously tied some added flexibility in sentencing defendants who, up until now, had to receive five or ten years. That's still a significant net gain, I think.

Posted by: Alex E. | Jul 29, 2010 2:01:29 PM

What's interesting here, I think, is the repeal of the mandatory minimum for possession. Correct me if I am wrong, but this might be the first drug mandatory repealed by the feds in nearly 40 years. I think that's the real water-shed (if any) in this bill, not the ratio manipulation.

Posted by: Ferris Bueller | Jul 29, 2010 2:14:02 PM

Note that the Miami Herald story correctly says "narrows" while the headline erroneously says "eliminates." Headlines are generally not written by the reporters who wrote the stories, and the headlines are wrong a distressing portion of the time.

Posted by: Kent Scheidegger | Jul 29, 2010 2:52:07 PM

The directives to Congress are a poorly veiled attempt to run the sentences back up for reasons which are both frightening and laughable. Two examples:

First, the bill directs (in the context of Organizer/Leader/Supervisor) a Guidelines enhancement which essentially criminalizes the defendant's use of "impulse, fear, friendship, affection, or some combination thereof to involve another person in the offense." Apart from the fear factor, I have trouble seeing how friendship and affection are criminally aggravating, or, as the bill calls it, "super-aggravating."

Second, it directs a Guidelines enhancement where the defendant knowingly distributed to a person over the age of 64 years, suggesting, that at age 64, we become presumptively stupid, and the equivalent of vulnerable victims. "Super-aggravating," indeed.

The Commission is left with the unenviable task of lending reason and clarity to these directives.

So, though Congress may be reducing the base sentence for clients who possess, with intent to distribute, less than 10 ounces or less than 1 ounce of crack cocaine, it has simply passed the job of enhancing the sentence back to the Sentencing Commission.

Posted by: VG | Jul 29, 2010 3:22:40 PM

What's interesting here, I think, is the repeal of the mandatory minimum for possession. Correct me if I am wrong, but this might be the first drug mandatory repealed by the feds in nearly 40 years.

Indeed, when was the last time the criminal penalty was reduced for any Federal offense whatsoever? When Congress legislates in criminal law, it’s almost always to criminalize previously legal activity, to Federalize crimes that were previously local, or to ratchet up the penalties for already existing crimes.

Posted by: Marc Shepherd | Jul 29, 2010 3:25:20 PM

Everyone has done an excellent job of interpreting the bill...DEJ done a good job of bailing out my frustrated and futile attempt.

It is definitely a way to continue the current way
while lowering the drug equiv qty...

VG has covered some of what I didn't like as well.

If the bill was retroactive, could you imagine going in to get your 2 level drop lets say and come out of court with a 4 level enhancement, because you gave someone $20 for a purchase and another tetstified that you threatened to kick some guys backside if things went south...

Posted by: Abe | Jul 29, 2010 3:34:28 PM

Concerning retroactive, I understand that the recentcy points are retroactive, but wondering if the Iodine is retroactive. This is from what the Commision has done and would become law Nov 1st, unless Congress revokes it.

I would have like to seen on probation points be tossed along with the recency points. Then criminal history wouldn't be inflated.

Posted by: Abe | Jul 29, 2010 3:45:41 PM

Who's right about the super-addictive power of crack, Abe or the NYT?

Regrettably, newspapers can't afford as many copy editors as they used to employ and the ones who still have jobs have too much to do to do it as well as they used to. Thus the misleading headlines.

The compromise looks more and more like yet another monument to the worthlessness of Congress as anything but a jobs program for mostly homely, wannabe low-wattage celebrities.

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