« Confirmed: New Hampshire Union Leader To Endorse John McCain | Main | Huckabee, Obama** Lead DMR Poll » Clinton, Obama, Edwards Differ On Retroactivity01 Dec 2007 08:20 pm The term applies to the application of balance to crack and powder cocaine sentences, retroactively. Clinton opposes this, and Edwards and Obama support it. (Proponents of retroactivity believe that those convicted of dealing crack cocaine should see their sentences retroactively reduced in the wake of new U.S. sentencing commission guidelines. There's generally a huge disparity in sentencing between those convicted of power cocaine offenses and those convicted of crack cocaine offenses). Comments (18)
Proponents of retroactivity believe that those convicted of dealing crack cocaine should see their sentences retroactively reduced Can someone explain to me how this is not the functional equivalent of simply letting drug dealers out of jail early? 
@dry_fish by redefining the definition of "early." Those convicted using grossly unfair sentencing guideline deserve to be let out of prison if they've served more time than they should have. Period.
As I understand it, the question is that if sentencing guidelines are reduced for particular drug offenses, should those already jailed for those offenses have their sentences reduced to the new legal limit. It's not a question of whether or not the sentences should be reduced, but whether the sentences should be retroactively applied if the reduced sentence becomes law.
Can someone explain to me how this is not the functional equivalent of simply letting drug dealers out of jail early? If there were a penalty of, say, a year in prison for selling a case of beer, and 50 years in prison for selling a bottle of whiskey, and that was later recognized as being grossly unfair, wouldn't you say that those convicted for selling whiskey should only serve what they should have served should the penalties have made sense to begin with?
On balance the nation will be helped by making these sentencing guidelines retroactive. It is the fair thing to do, and I believe that if we do not do this, we will be revisiting this issue in the near future.
This should be a screaming headline running in Black press! Black folks have been screaming foul for decades of this injustice but has never held Bill Clinton responsible for vetoing his sentencing commissions's guidelines to end the disparity. Let's see if Hillary Clinton gets a pass too!
Let's see how Charlie Rangel and Al Sharpton spin this one. Black folks have been decrying the injustice of the disparity between crack cocaine and powder cocaine for decades, placing the blame squarely at the foot of Republicans despite Bill Clinton's refusal to accept his own sentencing commission's guidelines to end the disparity. Now his wife wants to continue hiw cowardly legacy! Let's see if the so-called Black powers that be give her a pass to!
Obama found the least risky position earlier this year actually. http://www.boston.com/news/globe/editorial_opinion/oped/articles/2007/08/15/obamas_caution_on_drug_sentencing/ By asking an open question about spending "all our political capital" on eliminating the 100-to-1 ratio, that raises the possibility he will spend little or none on it. By talking about a "broader" prescription of early childhood school programs -- which means nothing to a 17-year-old in jail-- Obama risks flashing a losing card of being nonconfrontational.
thanks for this post, Marc. this is a VERY BIG DEAL Bill Clinton refused to solve this problem back in 1995 when the commission way back then recommended putting the sentencing in line between the two offenses. Hillary continues the great Clinton tradition of using black folk for votes then tossing us under the bus. one of my co-bloggers over at Jack & Jill Politics just put up a good, short post on the issue.
Thanks, all, for the explanations. My gut reacted to what I was reading before my brain did. Clearly, our society and criminal justice system is better off if people convicted of crimes of basically equal moral and social hazard are treated -- and perceived to be treated -- equally. Obviously, the problem with the crack versus powder disparity is that reflected a real and perceived bias in the criminal justice system to treat more harshly crimes which were more likely to be committed by blacks than those crimes which were more likely to be committed by whites. Prisoners still have rights under the 14th amendment, and to the degree to which the sentencing imbalance is indexed to real racial discrimination, the State and people everywhere concerned with racial equality have a powerful interest in seeing that those prisoners affected receive fair sentencing. Still, there are three issues in the crack versus powder debate, not just one. In addition to the question of racial bias, there is the question of mandatory minimum sentencing, and there is the question of the level of punishment society should prescribe for drug crimes. My own uneasiness extends from the fact that while I find correcting racial injustice laudable and find mandatory minimums very problematic (sentences should be adjudicated not legislated), I still think that drug crimes should be taken quite seriously (certainly not a position likely to get me elected King of the Internet Tubes). Setting aside the compelling arguments (at least to me) against retroactivity in the abstract, retroactivity in the context of the crack versus powder debate is always directed toward lightening the sentences of crack dealers and posessors, carrying with it the strongly implied assumption that the original sentences were too tough, the crime not that serious, and that legislative efforts to fight the crime were wrong. I'm just generally not ready to go in for a narrative of drug sentencing that finds more fault with crime fighters than with criminals. Not wanting to initiate an debate on the merits of drug law liberalization, my point is that I'm not the only one who feels this way. And, again, I'm a guy who generally believes that yes, there are too many people in prison, that manadatory minimums are a bad idea, and that our criminal justice system has demonstrated mulitiple patterns of racial bias. Most of the country is to the right of me on law-and-order issues. An embrace of retroactivity in crack cocaine-centered criminal sentencing would be a nightmare to defend in presidential general election. Sure, most normal Americans oppose racial bias in the criminal justice system, but if you tell them that they have to give early release to 20,000 drug dealers, "to be fair," they're going to balk.
Marc, Thanks for the information. I really appreciate posts like this. What about Richardson and the republican candidates? Zephyr
I'm surprised Clinton is against this. It might be the first example of a Clinton position that isn't "coincidentally" alligned with her political interests. I'd give her credit for a touch of integrity, if in my view she wasn't so wrong on this. For full disclosure, I'm pretty libertarian when it comes to the drug war in general. I'm also tend to be conservative, not in the way most Republicans misunderstand the word, but rather in the sense that we ought to move slowly, even when fixing past mistakes. I don't advocate completely ending the drug war in a single sweep of the pen. But there are aspects we can certainly correct, fixing some expensive and stupid things without doing any additional harm. One is rescheduling marijuana. Drug schedules dictate sentencing in most if not all states. Right now marijuana distribution is a more severe offense than heroin distribution. Another is fixing the dumb sentencing discrepency between crack and powder. I don't know if the discrepency was racist in its origins, but if I was black I'd sure suspect that. And when we do fix it, why not re-evaluate the sentences of those serving extended time because of that discrepency? Its cost effective (it takes a lot of cash to keep all these people in prison), and perhaps more importantly, its fair.
And in terms of how this can be defended in the general election, stress both the fiscal conservatism and fairness of doing so, and then ask the Republican candidate why he isn't for fiscal conservatism and fairness. I think the achilles heel for Republicans is this self-proclaimed notion they are the party of fiscal conservatism, yet seem inclined to spend more money than Democrats. Put them on the spot. Here you have an opportunity to save money while doing the right thing. How often does that happen? And still you can't get the Republicans to go along? Are those guys just hell-bent on wasting money?
Zephyr: I don't know about the Republicans on this exact issue, but Huckabee appears to be not an idiot on sentencing generally: Everyone else: This IS huge, I HATE Clinton, and someone needs to explain to me how you can be in favor of a sentencing change, but not retroactivity. But then I don't know if Clinton was in favor of reducing disparity in the first place. This whole retroactivity question came to light in the Genarlow Wilson case, and he almost didn't get out because of it: the state supreme court relied on "cruel and unusual" to justify his release, not the change in sentencing, because it was not retroactive. Why is it not always retroactive? Nobody has explained this yet anywhere I can see. Or addressed it. Thanks to anyone who does!
dry fish, a couple of points. First, no one disputes that sentences for drug offenses in general and crack offenses in particular are, on average, overly harsh. The U.S. Sentencing Commission has issued a number of reports, including a fifteen year analysis of modern federal sentencing, demonstrating that drug offenders are empirically less likely to reoffend than most other offenders; they also tend to be young males and, in the case of crack offenders, black. Studies have also shown that removing one drug dealer does little to nothing in terms of reducing drug crimes; a new person simply steps in to fill the vacuum. And of course, numerous reports have demonstrated that sentencing non-violent offenders to lengthy terms of incarceration destroys family and community relationships. Theoretically, this is justified because incarceration increases public safety, but in sentencing drug offenders to overly harsh terms of imprisonment, we ruin lives without any appreciable public safety gain. Everyone who has looked at this issue agrees that this is the case; it's just that some -- like this administration's Department of Justice, a few conservative Republican members of Congress, and Hillary Clinton -- don't care. Also, note that making the amendments to the crack guideline would not result in ANYONE being released "early." It would merely authorize the sentencing court to review an inmate's sentence and decide whether or not a reduction in sentence would be appropriate given the facts of the case and the particular offender. The Judicial Conference, the U.S. Probation Office and criminal defense practitioners from across the country support retroactivity. Hillary's position on this issue is either ill-informed or cowardly.
This is a very tough issue. I think Hillary should have flatly said that this will create a nightmare scenario for law enforcement in urban areas. There is a racial difference here. But shouldn't we be concerned about getting minorities off of crack cocaine?
Sentencing disparity in the mandatory minimums between Crack and Powder cocaine is a 100:1 ratio. In other words, it would take 5 grams of crack (the equivalent of about 5 packets of Sweet and Low) to trigger the mandatory 5 year minimum. It would take 500 grams to do so with powder cocaine, despite the fact that they are the identical product in a different form. This law (passed without analysis or hearings) was originally intended to go after major traffickers -- even the drafters of the law never figured it would be used against street dealers -- it was, after all, a federal law and mere street dealers should be dealt with by states. But it became a way for federal prosecutors to score high conviction numbers, so instead of focusing on traffickers, the government focused on locking up the little guys for extraordinarily long sentences. Now -- an important point: This sentencing commission guideline change does not change that gross disparity at all. What it does is reduce an additional guideline factor that tended to add anywhere from 6-18 months onto the already harsh mandatory minimum crack sentence. The guideline and retroactivity merely eases that pile-on. The disparity still needs to be addressed separately. And Kentucky -- regarding getting minorities off of crack. Actually, more whites use crack than blacks. It's just more blacks that are arrested, prosecuted and incarcerated for it.
|
Subscribe to this blog by Email Twitter || On Facebook || QIK Live Channel  Recent Posts
Monthly Archives
|
Copyright © 2008 by The Atlantic Monthly Group. All rights reserved.
| 
Of course Clinton's against it. It's the least risky position, and one that doesn't require voters to actually think.
Posted by justinb | December 1, 2007 10:05 PM