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January 6, 2014

Lamenting the "ghosts ... still serving time under [crack] sentences that would not have been imposed under the new law"

Linda Greenhouse has this notable new op-ed in the New York Times headlined "Crack Cocaine Limbo." Here are excerpts:

President Obama earned a rare moment of bipartisan acclaim last month when he commuted the sentences of eight long-serving federal prisoners. Their crack cocaine offenses had resulted in the harsh penalties mandated by a sentencing formula that Congress repudiated when it passed the Fair Sentencing Act of 2010. The old formula, under which possession of a quantity of crack earned the same sentence as possession of 100 times that quantity of powdered cocaine, was “now recognized as unjust,” the president said.

But there were ghosts at last month’s party: thousands of federal inmates still serving time under sentences that would not have been imposed under the new law. Most are black. As is widely recognized, crack has been the cocaine of choice for African-American users and dealers even as white offenders choose powder. The racially disparate impact of the old law, which dates from the crack-cocaine panic of the mid-1980s with its now-discredited theory that crack was many times more dangerous, made reform a civil rights priority.

These prisoners remain in drug-sentencing limbo. When Congress passed the Fair Sentencing Act, which reduced the crack-to-powder sentencing ratio from 1:100 to 1:18, it was silent on retroactivity. The Supreme Court granted limited relief two years ago, ruling that those who committed their crimes before the law took effect in August 2010 but who were not sentenced until later could retroactively get the new law’s benefit....

Senators Richard J. Durbin, Democrat of Illinois, and Mike Lee, Republican of Utah, introduced a bill last summer to authorize judges to grant relief to pre-2010 prisoners on a case-by-case basis. But the Smarter Sentencing Act, as its sponsors call it, has yet to move toward a vote....

Society made a judgment, expressed in a bipartisan political consensus, that disparities of this kind were irrational and racially inequitable. Passage of the Fair Sentencing Act was preceded by years of debate, including pleas by federal judges who hated what the law made them do. Gradually, insight emerged. Keeping a known and finite group of people locked in a system acknowledged to be irrational is irrationality itself.

January 6, 2014 at 07:33 PM | Permalink


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I'm all in favor of the Durbin-Lee initiative, but any pundit who fails to acknowledge that the majority of federal powder offenders are Hispanic and have been for a considerable number of years is not sufficiently well-informed to be taken seriously. The USSC compiles the stats every year; anyone with internet access can look them up. (The Census Bureau of course allows people to be both "white" and "Hispanic" but the USSC stats rightly or wrongly treat these as mutually exclusive categories, and I suspect that Greenhouse's readers mostly took her to mean "non-Hispanic white.") And of course the fact that the majority of federal meth offenders are (non-Hispanic) whites is not, imho, particularly persuasive evidence that the current meth sentencing regime is optimal.

Posted by: JWB | Jan 7, 2014 7:06:05 PM

I guess I shouldn't be that surprised that Ms. Greenhouse hoists the flag for crack dealers without once mentioning the language most nearly on point on the question of re-sentencing, 1 USC 109.

Posted by: Bill Otis | Jan 8, 2014 5:03:45 AM

Bill Otis, you quite properly point to 1 USC 109, which limits retroactivity. But this is irrelevant to the question of whether the result is nevertheless unjust. A commits the crime on Monday and gets 10 years. On Tuesday law is passed reducing max sentence for same crime to 5 years. B then commits the same crime and gets 5 years. I think its unjust that A must still serve 10. It's paerfectly legal, but still unjust.

Posted by: onlooker | Jan 8, 2014 11:57:48 AM

I agree with onlooker. Very unjust.

Posted by: attorney in Cal. | Jan 8, 2014 8:33:36 PM

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