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October 30, 2015

Prez candidate Hillary Clinton now talking abut equalizing crack and powder federal sentences

Flip-flop-Hillary-Long-time readers with a very good memory and those who have followed the debates over crack/powder federal sentencing for a very long time may recall that earliy in the 2008 Prez campaign, candidate Hillary Clinton came out opposed to retroactive implementation of the small reduction in crack guideline sentences that the US Sentencing Commission completed in 2007.  Here are a few posts from eight years ago on this blog on that topic:

I raise this notable federal crack sentencing history concerning Hillary Clinton because of this notable new Wall Street Journal article headlined "Hillary Clinton Calls for Equal Treatment in Cocaine Sentencing." Here are excerpts:

Democratic presidential front-runner Hillary Clinton is calling for equal treatment in sentencing drug offenders who use crack and powder cocaine, part of her agenda for overhauling the criminal justice system. She’s also reiterating her support for a ban on racial profiling by law enforcement officials.

A Clinton aide said she would announce the proposals on her trip Friday to Atlanta, where she plans to address a Rainbow PUSH Ministers’ lunch hosted by the Rev. Jesse Jackson, and where she will appear at a rally to launch African Americans for Hillary, a group supporting her campaign.

Mrs. Clinton’s support among African-Americans is strong and has remained so even through a rocky summer that saw her poll numbers fall with many other voters. Black voters play a significant role in certain Democratic primary states, including South Carolina, which hosts the third nominating contest, and throughout the South, where primaries are set for March 1....

Her approach to criminal justice issues in this campaign is notably different from the tone she took both as first lady and as a U.S. senator, and reflects a growing political consensus that the crackdown on crime that was in full force when Bill Clinton was president has gone too far....

On Friday, she will lay out two specific ideas, with more proposals coming next week, the campaign aide said. First, she’ll propose eliminating disparities in sentencing for people caught with crack and powder cocaine. In 2010, President Barack Obama signed legislation that reduced the sentencing disparity. Until then, to be charged with a felony, crack users had to possess just five grams of the drug, but powder cocaine users needed to be found with 500 grams, a 100-to-1 disparity.

A majority of crack offenders are black, whereas whites are more likely to be caught with powdered cocaine, leading to a dramatic racial disparity in punishment. The gap dropped to 18-to-1 under the 2010 legislation, with the threshold for crack rising to 28 grams. But advocates say that isn’t enough.

The ACLU called the 2010 legislation a “step toward fairness” but said more was needed. “Because crack and powder cocaine are two forms of the same drug, there should not be any disparity in sentencing between crack and powder cocaine offenses—the only truly fair ratio is 1:1,” the group said.

The campaign aide said Mrs. Clinton would support further increasing the threshold for crack offenses so it meets the existing powder cocaine guidelines.

As a senator, Mrs. Clinton supported reducing the disparities between sentencing for crack and powder cocaine. But as a presidential candidate in 2007, she opposed making shorter sentences for crack offenders retroactive, a position that put her to the right of other Democratic candidates. This time, she supports making the change retroactive.

October 30, 2015 at 10:50 AM | Permalink


Racial profiling:

A male who is about 25 years of age just left the Quick Shop on B Street with a machine gun, the proceeds from the cash register and a hostage. He left in a___ and ____ color Chevy. He had curly hair but we cannot divulge anymore about his appearance in conjunction with the anti racial profiling code. Be on the lookout. Or be square and be there. And dont let your meat loaf.

Posted by: Jack Mehoff | Oct 30, 2015 2:14:21 PM

For Hillary Clinton to be talking about fairness is just rich. She has clearly broken laws regarding classified info, and she's not being hammered like the little people. She is in favor of criminal prosecution for political speech (Citizens United) and she sicced the DOJ on the WH Travel Office to clear the way for her cronies.

Doug, of course, will try to hammer Bill Otis and me for all sorts of things, but is silent about this appalling record.

Doug is really good about accusing me of dodging questions (which I never do), but can't even answer basic ones.

Posted by: federalist | Oct 30, 2015 6:54:41 PM

No one cares, not even dealers.

Posted by: Supremacy Claus | Oct 30, 2015 7:23:00 PM

Yale Law alumna. Dismissed.

Posted by: Supremacy Claus | Oct 31, 2015 2:58:34 AM

What questions have I failed to answer, federalist?

I try to answer all respectful ones sent my way in every forum as time permits (but I have had a few extra busy travel/work weeks of late).

Meanwhile, as this prior post should reveal (and as anyone who regularly reads this blog should know), I have never been inclined to defend or even support the Clintons:

From Aug, 2015: Is it fair I assume Hillary Clinton committed politically-motivated federal crimes because I think her husband did as Prez? http://sentencing.typepad.com/sentencing_law_and_policy/2015/08/is-it-fair-i-assume-hillary-clinton-committed-politically-motivated-federal-crimes-because-i-think-h.html

Posted by: Doug B. | Oct 31, 2015 12:13:45 PM

Federalist, I know it has been hard for you to accept the American People's election of Obama twice; and I'm sure it will be equally difficult for you when they elect Hillary Clinton.

Posted by: observer | Oct 31, 2015 12:29:57 PM

observer, I accept it--I am just glad I'm not a family that has been touched by Obamacare or illegal alien criminals. When one has a nice house in the 'burbs, money to burn and a pretty wife and smart kids, life's pretty good no matter who is in the WH.

Doug, let me count the questions/issues you dodge:

1) You consistently either pooh-pooh the problems that under punishment creates, and you emphasize the "plight" of people like Weldon Angelos, who after all, put himself in the position he was in, while ignoring people like the victims in the Olu Stevens probation case. What's more of an injustice--a guilty man getting possibly over punished or innocent people denied justice for a horrible crime and are attacked by the judge?

2) You never deal with the fact that most people (87%) in state prisons are either violent criminals or there for property crimes (generally career criminals), and neither to the people who whine about "millions" of people in prison. The fact is, Doug, that the vast majority of people in prison belong there. Or do you disagree. Of the people in prison, what is your estimate of the number of people who do not belong?

3) Race---you constant;y pass along Obama's inflammatory nonsense about race and the criminal justice system. Yet Obama has a history of either pooh-pooh black perps with a white victim (his characterization of the Jena assault being a "schoolyard fight" was the deliberate euphemization--yet you uncritically pass along his comments about race and the justice system as if he were even handed when it is apparent he is not even handed when it comes to race and the criminal justice system. I might agree with your agnosticism on Obama and race, but the bottom line is that there have been so many times where he hasn't been even-handed when it comes to race.

4) Phillip Savropoulos--what's more of an obscenity? His death as a result of lenient judges or Weldon?

5) What's your solution for overly lenient judges?

6) Why don't you ever call out libs who hate Citizens United, but don't remember that the law it struck down criminalizes speech?

7) Obama and gun violence---he's so into gun control, yet he doesn't prosecute gun crimes very vigorously and wants gun criminals out of prison.

8) Public safety and libs---you know a real easy way to promote public safety---deport more alien criminals, something which is clearly not a priority for this administration---moreover the administration doesn't even try to push exceptions to Zavydas v. Davis. Where are you on that? So why don't you pillory (like you do Bill Otis) idiots who yammer about investments in schools but won't deport alien criminals or who are the party who appointed most of the Justice in Zavydas v. Davis.

9) Why don't you ever critically examine the hyperbole that's out there about over incarceration? I get it that there are issues where everyone pleads guilty--but the reality is that plea deals get defendants often more lenient sentences than their crimes warranted. And now we're going to release based on convictions? Isn't there a problem with that? And there is clearly hyperbole on the "easy on crime" side--why aren't you calling it out.

Posted by: federalist | Oct 31, 2015 1:06:02 PM

and yeah, I know that you've not defended Clinton. The point is that her comments are stunningly hypocritical, and you like to take shots at states trying to get execution drugs (and blocked by a BS decision) etc.

Posted by: federalist | Oct 31, 2015 1:07:49 PM

federalist, I will try to quickly answer all your questions:

1. Because I generally embrace a consequentialist philosophy, assertions of "justice" or "injustice" are hard for me to unpack and especially hard for me to compare. Lots and lots of "innocent people" are denied justice everyday by police, grand juries, prosecutors, juries and judges, and lots and lots of "guilty people" get over- and underpunished everyday by police, grand juries, prosecutors, juries and judges. I am not sure I could give you a justice metric on all of this, but I can tell you that I see the misallocation of punishment, both too much and too little, as producing lots of consequentialist problems. As for underpunishment, I see the biggest consequentialist problems generally involving drunk drivers. As for overpunishment, I see the biggest consequentialist problems involving extreme mandatory minimum sentences for not-really-so-dangerous conduct like selling weed. Both are big problems, but as I have explained in some book chapters and law review articles, I see society often quick to respond to the perceived harms of underpunishment and often slow to respond to the harms of overpunishment (until bills come due and then we have bad/harmful pressures leading to crisis-driven decisions (see, e.g., California) that are themselves more harmful than if overpunishment concerns had been better addressed earlier).

2. I do not think anyone "belongs" in prison, though I recognize that the social costs/harms of alternative ways to treat lawbreakers may be greater than using prison. In my consequential analysis, human freedom (of both thought and action) are of greatest importance, and that makes me eager to use prison as a last resort rather than a first resort for all crimes and purposes. I think we could, through wise investments and modern technology, reduce both the costs and size of our prison population and further reduce crime. And I, personally, would readily give up much privacy to do so. Neither the US throughout our history nor any other free nation in world history has used incarceration on the scale the US uses it now, and I find that telling. Perhaps Americans are now a much more violent and crime prone people (perhaps because of lead exposure and easy access to guns), but I think some other factors are also at work.

3. I do not think anyone --- including Obama --- has ever been or can ever really hope to be "even-handed" when it comes to race. We are all scarred by our own personal experiences (on race, religion, gender, age, health, etc.), and personal scarring will influence our views and statements whether we admit it or not. The very idea that we should demand or even expect someone to somehow be even-handed in these personal arenas strikes me as both naive and foolish.

4. + 5. Human judgment systems make mistakes, federalist, and all we can try to do is reduce the number and impact of those mistakes. The abolitionists use mistaken capital convictions to argue for the "solution" that nobody should ever get a death sentence, but I surmise you see this is a facile argument (especially because it could be used to say nobody should ever get punished at all). Equally facile is the idea that judges ought never have sentencing discretion because some will make the mistake of imposing too lenient a sentence sometimes. There is no "solution" to the problem different than what we have created for other government problems --- checks and balances. And that is my big concern with MMs that got Weldon --- no chance for a check/balance (save clemency, which has gone too dormant in recent decades).

6. I do not spend much time trying to "call out" anyone in this space unless/until they are engaging in this space. I cannot recall (m)any comments here about Citizens United, and so I find weird that you want me to take up that case. Start you own blog if you want a space to go after criticisms of CU, and I may comment about (and agree with) your points there. But I find tiresome your tendency to complain about my failure to complain about what it seems you want to complain about.

7. What is the basis for your criticism that Obama does not prosecute gun crimes very vigorously? Among other things, his DOJ has pushed for broad interpretations of 922 and 924(c) and ACCA. (DOJ asked SCOTUS not even to consider an attack on federal gun laws on which cert was just granted.) The SCOTUS Johnson case is what is now creating pressure to release some folks convicted of gun offenses, but these are all gun possession cases AND I surmise Obama (rightly in my view) recognizes that decades of quite tough federal gun sentencing laws have done very little to keep guns out of the hands of mentally-ill mass shooters.

8. What is the basis for your criticism that Obama does not deport criminal aliens? Criminal immigration prosecutions spiked during the Obama years, and I surmise that the Obama team (like prior Prez) has come to realize that prosecution/deportation does not itself prevent re-entry and recidivism. I do not follow non-criminal sentencing immigration issues that closely, but I do generally favor more prosecution and deportation of criminal aliens. And that is among the many reasons I eagerly want the feds spending less time/money/energy on US drug offenders. States can/will make their own local decisions about drug policy, but they cannot really do so on immigration issues. I want to believe DOJ wants to do less on non-vioent drug offenders so that can do more on violent aliens, and I have no reason not to believe that both career and political appointees inside DOJ are trying to make that happen.

9. There is hypebole on every side, federalist, and I try to call out the hypebole that strikes me as most misguided and harmful. I see much more of this in the anti-DP talk, and I trust you recognize my efforts to call this out. The anti-incarceration talk, though full of problems, strikes me as much less dangerous and much less false. Proof that it is much less dangerous is the fact that it has been going on for well over a decade, and we still have --- by far --- the largest prison population in world history.

Posted by: Doug B. | Oct 31, 2015 2:57:32 PM

if that's "quick," I'm not verbose!

Posted by: Joe | Oct 31, 2015 4:42:03 PM

Prof. Berman. You get an A+ for your response.

Posted by: observer | Oct 31, 2015 8:00:06 PM

Oh good grief---you ask me specific hypos, I answer them, but you can't comment on Olu Stevens abusing a family and then handing out probation? Weak.

Interesting that you cannot even get into the specifics of the overincarceration issue.

Innocence, in my mind, actually, is the only good argument against the DP.

Posted by: federalist | Nov 3, 2015 7:49:42 AM

Taking these one at a time:

3. I do not think anyone --- including Obama --- has ever been or can ever really hope to be "even-handed" when it comes to race. We are all scarred by our own personal experiences (on race, religion, gender, age, health, etc.), and personal scarring will influence our views and statements whether we admit it or not. The very idea that we should demand or even expect someone to somehow be even-handed in these personal arenas strikes me as both naive and foolish.

This is an amazing answer--first of all, the law often expects "even-handedness" when it comes to race. But more to the point, the issue isn't whether Obama's experiences affect his worldview when it comes to crime and punishment--of course they do, but it's whether Obama's clear hyperbole when it comes to the "just us" system (remember, he used that term in a debate at Howard University) and outlook call into question his bona fides with respect to this debate. That's a very big deal---Obama is a guy who has talked about rural [read white] America being xenophobic and has spoken in terms of a "typical white person". He pooh-poohed a pretty nasty racially-motivated assault in Jena. And he frames the debate about whether we punish too harshly racial terms.

And all you can do is lump him into the "well gee we all have issues"--what a lame defense. One issue that you deep thinkers never seem to get---why is it that the legislature is somehow barred from punishing a certain crime harshly because members of a minority group disproportionately commit it? But putting that to one side--shouldn't Obama's pronouncements on race and the justice system be taken with a lot of salt given his attitudes?

Barack Obama believes in the race norming of school discipline--a patently unconstitutional idea. You'll rag on Goodlatte---but say nothing about the obvious agenda with Obama's attacks on the criminal justice system and the call to free a bunch of criminals with predictable consequences (i.e., that there will be violent victimization but for the freeing of the criminals).

And, you've yapped about "respectful"---why in the world should I be "respectful" of someone who speaks in terms of a "typical white person" or euphemizes racially motivated violence? I guess the better question is--why are you respectful of him?

Posted by: federalist | Nov 3, 2015 12:00:07 PM

federalist, I am not sure what you are looking for me to say about Judge Olu Stevens, but I note that this article about the judge indicates he sometimes makes waves for punishing harsly:


"In 2011, he rejected a proposed plea bargain that would have given probation after 60 days in jail to Geneva Walters, who pleaded guilty to reckless homicide in the death of her 8-month-old son, who drowned in a bathtub after being left unattended. In 2013, he denied a plea for leniency for former Louisville Metro Police recruit Chauncy Rhodes, sentencing him to 15 years in prison for rape and sodomy. His lawyer had asked for 10 years. Stevens said that while he had no criminal history and was deemed a low risk for future offenses, his crime was 'heinous' and he had refused to accept responsibility for it."

As for Obama, I am still not sure I fully understand your criticisms here. For starters, I do not think he or others assert a "legislature is somehow barred from punishing a certain crime harshly because members of a minority group disproportionately commit it." Rather, as I understand modern CJ criticisms based on racial issues, Obama and others seem primarily concerned about racial skews in the operation of the CJ system based on a wealth of statistics suggesting black men, at each stage of the criminal justice system, are more likely to be subject to arrest, prosecution, conviction and harsher sentences. I do not fully understand how complaining about these statistical realities evinces an "obvious agenda" beyond the desire to see these realities changed.

So I better understand your gripes, federalist, can you explain whether/why you question/debate all the statistical evidence of disparity that Obama credits? Or are you suggesting that, even if the disparity data is accurate, the US Prez ought not discuss these data in the manner Obama does?

Posted by: Doug B. | Nov 4, 2015 12:01:41 AM

Doug, "Judge" Stevens handed out probation to black defendants for a home invasion armed robbery--then criticized the victims. Nice.

As for Obama, I see you've abandoned the "everyone has their biases" cop-out to excuse his ugly comments. The bottom line, it seems to me, is that Obama's pronouncements call into question his bona fides---given his comments, one can reasonably come to the conclusion that he just wants to hook up minority criminals. And yet you write: "I do not fully understand how complaining about these statistical realities evinces an 'obvious agenda' beyond the desire to see these realities changed." Well, you just prove my point--Obama seems to dislike our current system because facially neutral laws sweep up minorities disproportionately. Well, gee, no shit. Armed robbery laws do that, and so do burglary laws. What his complaints do is try to argue that these laws, generally, are biased against minority criminals and that disproportionate impact is necessarily a wrong that needs to be changed. But that cannot be true--African-Americans commit about 50% of the murders in this country--should they only be 13% of those in prison for murder? According to the logic of Obama, the answer is yes.

What I am saying, in a nutshell, is that (a) Obama has a racial agenda, (b) his agenda seems designed to help minority criminals and (c) his comments on the CJ system show that he;s not really interested in erudition, but delegitimizing the punishments. This undermines his credibility. First of all, this is not how a president is supposed to act, and second of all, I would think a law prof who comments on this stuff repeatedly would just point out that certain minorities commit crimes far out of proportion to their numbers. And if Obama wants to "see the realities changed" by reducing sentences, he is saying that the issue isn't the lawbreaking but the law. That's deeply offensive when you get right down to it.

AS for Obama and gun prosecutions: http://www.motherjones.com/mojo/2013/02/obama-federal-gun-crimes

So Obama runs around yapping about how he wants to get guns off the street, yet prosecutes far less gun crimes. I was shocked that you didn't know this. So, basically, Obama is a big hypocrite.

Posted by: federalist | Nov 5, 2015 8:36:52 PM

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