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April 19, 2011

An interesting pro-Reagan spin on crack-powder federal sentencing reform

The Heritage Foundation blog has this very interesting new post about federal crack-powder sentencing reform which is headlined "Vindicating Reagan’s Drug Policy … 25 Years Later."  Here are excerpts:

Two weeks ago, the U.S. Sentencing Commission promulgated a permanent amendment to the Federal Sentencing Guidelines that reduces jail time for those convicted of offenses related to crack cocaine.  Liberals would love to portray the new drug sentencing standard for crack cocaine as a success story, in which the Obama administration undid a draconian Reagan-era drug policy.  Critics are unduly harsh on Ronald Reagan’s drug policy, blaming the Great Communicator for driving the hysteria in the 1980s which led to the enactment of unfair criminal drug laws.

However, liberals might want to avoid taking credit for “fairer” crack cocaine sentencing laws when President Obama signed the Fair Sentencing Act of 2010.  A look back twenty-five years ago reveals it was not President Reagan behind the gross disparities in sentencing of cocaine traffickers but in fact the liberals who created the problem in the first place.

In 1986,...[the] person responsible for the crack-powder cocaine ratio contained within the Anti-Drug Abuse Act of 1986 was Vice President Joe Biden.  Then-Senator Biden succumbed to what he later referred to as “a feeling of desperation” and proposed a 100-to-1 ratio.  His Democratic colleague from Florida, Senator Lawton Chiles, went even farther, by suggesting a 1000-to-1 ratio.  The 100-to-1 ratio ultimately became law and served as the basis for the November 1, 1987 sentencing guidelines.  By contrast, the Reagan administration proposed a much more reasonable 20-to-1 crack-powder ratio.

As a result of adopting Senator Biden’s ratio, defendants convicted of trafficking 50 grams of crack cocaine received a mandatory minimum sentence of 10 years, the same sentence given to someone who for trafficking in 5,000 grams of powder cocaine. Confronted with this disparity, the Sentencing Commission proposed reductions to the ratio in 1995, 1997, 2002 and 2007.  Each of these recommendations was unsuccessful because Congress refused to make a change.

Twenty years after his proposal became law, Biden backtracked, admitting that the facts that informed Congress’s determination “have proved to be wrong, making the underlying cocaine sentence structure we created unfounded and unfair.”  He also said, “Each of the myths upon which we based the sentencing disparity has since been dispelled or altered.”

The amendment to the guidelines that was promulgated last week raised the quantities of crack cocaine to trigger mandatory minimum terms from 5 to 28 grams for five-year sentences and from 50 to 280 grams for ten-year sentences.  Thus, the Fair Sentencing Act of 2010 reduced the ration to 18-to-1.  After multiple attempts by the Sentencing Commission to undo Biden’s proposal and years where crack and powder cocaine traffickers were sentenced in vastly different ways, a proportion akin to Reagan’s policy was established.

On August 3, 2010, President Obama signed the Fair Sentencing Act in the Oval Office.  He made no remarks at the signing.  What President Obama probably should have said was that twenty-five years of a vast disparity in drug sentencing could have been avoided if Congress only listened to Reagan.

April 19, 2011 at 10:23 AM | Permalink


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If only Reagan wasn't forced to sign the 1988 Act into law. If only Reagan had some sort of option -- a "veto" if you will -- that would have allowed him to prevent the 1988 Act from ruining so many lives. Or better yet, if only Reagan were in charge of the branch of the government that was vested with a vast amount of discretion in deciding how to enforce the nation's criminal laws.

I buy that a number of democrats, especially Biden, should be blamed for the 1988 Act. Totally fair point. But to pretend that Reagan was some saint in all of this is a bit much.

Posted by: anon | Apr 19, 2011 12:50:03 PM

I don’t expect the Heritage Foundation to be an impartial arbiter of “who is to blame” for the 100-to-1 crack/powder ratio.

It’s fair to note, though, that presidents frequently sign legislation containing provisions they disagree with. Obama, for example, just signed a budget bill with deeper cuts than he personally favored. Indeed, given the complexity of most legislation, it’s a safe bet that very few bills contain 100 percent of what the president wanted. He can’t veto everything.

Posted by: Marc Shepherd | Apr 19, 2011 1:40:07 PM

I don't see the article as saying that Reagan was a "saint". What it says is that 25 years of infighting only brought the issue right back to where it was. No doubt, many things would be different today if we had continued the policies of the great communicator. However, there is plenty of blame to go around regarding anything to do with mandatory minimums and sentencing guidelines. Rather than the hard right "tough on crime" crowd it was actually Mr. Liberal himself, old Teddy Kennedy that started the whole mess. At least according to the following excerpt. Of course, he had a little help from conservatives Hatch and Thurmond. So, if either side is placing blame they need to first look inward.

From: Misguided Guidelines
by Erik Luna

As legend would have it, the genesis of federal sentencing reform can be dated to a 1975 party hosted by Sen. Edward M. Kennedy (D Mass.). Among the invitees was Judge Frankel, whom Kennedy would later declare “the father of sentencing reform.” The dinner conversation with Frankel and other guests, including criminal justice scholars Alan Dershowitz and James Vorenberg, inspired the Massachusetts Democrat to lead the charge for a congressional overhaul of federal sentencing as it then existed. Although his initial bill was defeated, Senator Kennedy continued the campaign for sentencing reform, compromising here and there, and eventually garnering the support of an odd coalition of political luminaries including Sens. Joseph Biden (D-Del.), Orrin Hatch (R-Utah), and Strom Thurmond (R-S.C.). Yet even with modifications to suit the needs of disparate interest groups, the Sentencing Reform Act barely passed as a rider to a general crime control bill.

There is an interesting article over at the Sentence Speak Blog that discusses "When does Congress Create Mandatory Minimums?"

Among their conclusions is that "mandatory minimums are created out of fear and politics instead of reason or justice", they "act as one-way ratchets, driving sentences ever and ever upwards", and "once created, it is virtually impossible to get rid of them." Hard to disagree with that.

Here is a link to the article:

Posted by: Thomas | Apr 19, 2011 2:54:56 PM

The Guidelines are fundamentally a liberal project. Whether one agrees or disagrees with them, I am amazed that so many conservatives don’t realize that.

Posted by: Marc Shepherd | Apr 19, 2011 3:29:03 PM

Marc --

Whether the Guidelines are considered liberal or conservative depends mostly on what kind of substantive sentences they produce. If the sentences turn out to be long, they'll be regarded as conservative. If they turn out to be short, liberal.

The thing to remember is that having a guidelines system for determining sentences does not necessarily produce either long or short outcomes; the process is separate from the result.

The principal advantage of a guidelines process is that it pushes the system away from idiosyncrasy and towards consistency. For those of us who believe that rules are more likely to produce justice than the luck of the draw, guidelines are a good thing.

The present "advisory" state of the Guidelines, however, is not such a good thing, because, to the public, it creates the illusion that rules are being followed, while the reality is that district judges' freedom to depart has now been so expanded as to make a joke of the idea that the Guidelines have anyything like the effect of rules. Indeed, the Supreme Court, in Spears, reminded district courts that a within-range sentence cannot so much as be PRESUMED REASONABLE.

With that as the state of play, we would be better off getting rid of the Guidelines and starting over. As Justice Souter suggested (I think in his concurrence in Gall), the path forward now should be for Congress to re-enact the SRA, reguiring proof BRD for above-the-range sentences, and make the Guidelines mandatory once more.

Posted by: Bill Otis | Apr 19, 2011 5:28:31 PM

as long as they use some brains when they do it.

I agree bill

but like the tax codes there are too too too many little additons and subtractions.....

also like the tax code they are now so numerous and confusing not even you lawyers know what hell is happening....otherwise we wouldnt' be seeing so many do overs covering just the length of sentence.

Posted by: rodsmith | Apr 19, 2011 9:32:34 PM

Bill, it was actually Nelson where the Court made clear that a district court can't presume a guideline sentence to be reasonable. But, putting your unjustified hyperbole aside and looking at what district courts are actually doing, we are nowhere close to "luck of the draw" sentencing. I fully understand that you have an interest in propagating that erroneous image, but it just isn't based in reality.

Do district courts have the ability to not follow the Guidelines? Yes. In practice, however, do the Guidelines make a difference on a judge's sentencing decision? Yes. And do they continue to make a substantial difference? Yes.

You can keep trying to spread this image of out-of-control sentencing. But I (and hopefully others) will continue to bring your ramblings back to the real world.

Posted by: DEJ | Apr 19, 2011 9:39:13 PM

Mandatory minimums are not compatible with conservative ideology. They were enacted precisely because there was a distrust of individual judgement. It was a concept born of a desire for a level playing field and the level playing field would be mandated by Congress

Congress encroched on the Judicial Branch with a heavy hand to make sure that there would be no regional disparity. In effect the regional disparity was transferred to the Prosecutors office.

Posted by: beth | Apr 19, 2011 10:33:22 PM

Yes, Democrats were responsible (ditto for the Byrne grant program and a lot of other drug war infrastructure approved during that period), but Reagan was complicit. His suggestion of a 20-1 disparity was no more justified than the Dems' 100-1. By his second term, Reagan had become a Big Government Conservative whose crime policies were dominated by neocons. This was a much different Reagan than the Small Government Conservative who, as California governor, reduced incarceration rates and closed prisons to balance the budget. His stamp of approval on Democratic Big Government crime policies is largely to blame for the "tuff-on-crime" bipartisan consensus over the last 25 years that's only now starting to come apart at the seams with the Right-on-Crime movement, etc..

Posted by: Gritsforbreakfast | Apr 20, 2011 7:47:17 AM

DEJ --

"Do district courts have the ability to not follow the Guidelines? Yes. In practice, however, do the Guidelines make a difference on a judge's sentencing decision? Yes. And do they continue to make a substantial difference? Yes."

What you continue to overlook is that the Guidelines were based to start with on the EXISTING practices and outcomes of sentencing courts, and thus it is hardly a surprise that, after they became advisory, most courts still "follow" them. But they "follow" them only in the empty sense that they "follow" what they had been doing before there were guidelines at all.

Sorry if you regard that truth as "rambling." Maybe you can join the liberal fascist movement here to get me banned.

Posted by: Bill Otis | Apr 21, 2011 5:15:37 PM

beth --

"Mandatory minimums are not compatible with conservative ideology. They were enacted precisely because there was a distrust of individual judgement."

Conservative ideology trusts the individual judgment of private citizens, but distrusts, or at least is skeptical, of the judgment of government institutions such as district courts. Particularly after the crime spree of the 1970's, Congress was distrustful, as it was well advised to be, of the lenient sentencing associated with the crime surge. That is the basic reason the Guidelines and MM's enjoyed such broad, bipartisan support.

Posted by: Bill Otis | Apr 21, 2011 5:21:15 PM

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