Crack/Powder Cocaine Disparity

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Feature: US Sentencing Commission to Examine Alternatives to Incarceration

The US Sentencing Commission, the panel that sets sentencing guidelines for federal courts, has signaled that it intends to focus next year on developing alternatives to imprisonment, a move that is welcomed by reform advocates, but opposed by conservatives and, likely, the Justice Department. The commission's intentions were mentioned in a recent filing in the Federal Register and come as a September 8 deadline for public comment has just passed.

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Created in 1984, the Sentencing Commission consists of seven presidential appointees who are then confirmed by the Senate Judiciary Committee. The panel is charged with making sentencing recommendations which automatically take effect unless Congress proactively votes to reject them.

While Congress has repeatedly enacted tough new sentences in bouts of anti-crime or anti-drug hysteria, the Sentencing Commission is less prone to political passions and more likely to act as a restraining influence on congressional incarceration mania. The commission, for example, has for more than a decade urged reforms of the crack/powder cocaine sentencing disparities that have seen thousands of African-Americans imprisoned for years for crack while mostly whites holding similar amounts of powder cocaine do far less time. Last year, the commission enacted changes in the federal sentencing guidelines to reduce sentences for crack offenders.

Despite objections from the Justice Department, the commission then went a step further, making the reductions retroactive so that some of the thousands of long-serving crack offenders could get out of prison a few months early.

But with some 2.3 million people behind bars in the US, including more than 200,000 in the federal system -- more than half of them drug offenders -- the commission signaled earlier this year that it wants to see more efforts to reduce those numbers. This summer, it hosted a two-day symposium on alternatives to incarceration, and now, with the Federal Register announcement, it appears the commission will continue down that path.

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"The summer symposium was a really good coming together of criminal justice experts," said Kara Gotsch, director of advocacy for the Sentencing Project, a Washington, DC-based think tank. "There were judges, probation and parole people, law enforcement, academics, and advocates there to talk about what the states are doing in relation to alternatives to incarceration. They discussed successful programs that are diverting people from prison. The commission has demonstrated its interest in this issue and has said it would distribute materials from the symposium, so we are hoping the commission will look to apply some of this to alternatives to incarceration at the federal level, including expanding the sentencing grid to include alternatives."

Not everyone was so excited. In a weekend story in the Wall Street Journal, the Justice Department seemed decidedly unimpressed. Spokeswoman Laura Sweeney said that while the department is interested about the use of expanded monitoring technologies, "we do not believe the use of alternatives should be expanded without further rigorous research showing their effectiveness in promoting public safety."

Similarly, Michael Rushford of the conservative, victims' rights-oriented Criminal Justice Legal Foundation warned that resorting to less mass incarceration could result in rising crime and violence. "I'm old enough to remember the 1960s and the sky-high crime and murder rates we had then," he said. "While there may be a role for diversion for young offenders, serious felony offenders need to be behind bars."

While it is unclear exactly what the commission might recommend, the summer symposium heard lots of talk about drug courts, residential and community corrections, and other alternatives to incarceration. It does seem clear that the commission wants to reduce the flow of new inmates before they get to the prison gates.

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"We're going to be looking at what might fit at the starting point, before somebody is sent to prison," District Court Judge Ricardo Hinojosa, chairman of the commission, told the Wall Street Journal. But the commission will move cautiously, he said.

"The commission's priorities for next year are not yet finalized," said Gotsch, who is hoping it will also consider further reforms of crack sentencing and the mandatory minimum sentencing structure. "But we are encouraged by the symposium and this announcement. Advocates like us and Families Against Mandatory Minimums (FAMM) will continue to push for modifications of the sentencing grid to make including alternatives to incarceration a priority. The issue is clearly on their radar, and that's a good thing," she said.

The Sentencing Commission can -- and should -- have an impact on Congress, Gotsch said. "If we can get them on board for alternatives to incarceration, that will be huge. When the commission speaks on a sentencing issue, Congress should listen."

Republicans Promise to Continue the Drug War

Pete Guither points out that the Republican Party’s newly released platform pledges to continue the disastrous and increasingly unpopular war on drugs:

Continuing the Fight against Illegal Drugs

The human toll of drug addiction and abuse hits all segments of American society. It is an international problem as well, with most of the narcotics in this country coming from beyond our borders. We will continue the fight against producers, traffickers, and distributors of illegal substances through the collaboration of state, federal, and local law enforcement.

In 2008, I’m beginning to doubt that anyone is going to win any votes with this kind of language. Given the risk of rubbing the libertarian crowd the wrong way, it wouldn’t have surprised me to see this rhetoric left out altogether. Of course, that would have been a conspicuous omission, I suppose, and you can bet that we’d have more than a few words to say about that.

On the plus side, Pete noticed that the section called "Locking Up Criminals" omits drug crimes from the list of offenses for which the Republicans support mandatory minimum sentencing:

We support mandatory sentencing provisions for gang conspiracy crimes, violent or sexual offenses against children, rape, and assaults resulting in serious bodily injury.


That’s really a rather positive sign, indicating that we may be moving towards a bipartisan consensus that our drug laws have gone too far.

I’m also tempted to theorize that Obama’s decision to bring Biden onto the ticket may have been a contributing factor here. Months ago, Dick Morris editorialized in favor of attacking Obama on sentencing reform, arguing that by supporting revised crack sentencing guidelines, Obama wants to let thousands of crack dealers out of jail. It’s cynical and ruthless ploy that becomes considerably harder to pull off with Biden on the ticket. Given his central role in pushing through the original sentencing disparity, and his recent evidence-based reversal, Biden has all the credibility to blow any "soft on crack" attacks back to the '80's where they belong. I’m no fan of Biden’s drug war record, but there’s an interesting dynamic here, which I'll concede to those who've argued that Biden's awful history could end up providing cover for reform.

Which brings us to the obvious question: if the democrats don’t support mandatory minimums for drug offenses, and the republicans don’t support mandatory minimums for drug offenses, who does?

(This blog post was published by StoptheDrugWar.org's lobbying arm, the Drug Reform Coordination Network, which also shares the cost of maintaining this web site. DRCNet Foundation takes no positions on candidates for public office, in compliance with section 501(c)(3) of the Internal Revenue Code, and does not pay for reporting that could be interpreted or misinterpreted as doing so.)

The Sentencing Project: Crack the Disparity Newsletter Vol. 1, No. 1

Crack the Disparity Logo

CRACK THE DISPARITY NEWSLETTER

Volume 1, No. 1
Summer 2008
In This Issue The Struggle Continues Legislative Update Grassroots Agenda A Theological Basis for Ending the Sentencing Disparity Save the Date Media Momentum

Feature Story:

Baseball Legend Willie Mays Aikens Released Under Retroactivity Amendment

By Zerline Jennings

Aikens

Willie Mays Aikens, former first baseman for the Kansas City Royals, made baseball history when he became the first player to have a pair of two-homer games in the 1980 World Series. Years later he made another kind of history when a longstanding addiction to cocaine ended his baseball career and ultimately led to a nearly 21-year sentence for selling crack cocaine to an undercover officer. Finally, in 2008, he again made headlines when a federal judge reduced his lengthy prison term to 14 years as a result of the U.S. Sentencing Commission's recent adjustment to the crack cocaine sentencing guidelines. Aikens was released in June.

"They used my case as an example to show that crack sentencing was cruel and unusual punishment," said Aikens in an interview with WHNS-TV in South Carolina. "I'm glad that after spending 14 years in prison, something good came out of this."

Sentencing reform advocates utilized Aikens' story to illustrate the unjust sentencing and racial disparities between crack and powder cocaine. After being convicted of attempting to purchase cocaine in 1983, his addiction eventually led to his suspension from major league baseball. He returned to Kansas City, after playing ball in Mexico, but continued to battle his addiction, which was quickly ruining his personal life as it had done his baseball career.

Kansas City authorities were aware of Aikens' involvement with drugs. In December 1993, a female undercover officer established a friendship with Aikens and subsequently asked him to obtain crack cocaine for her on several occasions. On at least one occasion, the undercover officer specifically asked him to cook powder cocaine into crack cocaine.

Entrapment and Mandatory Minimums

With this evidence, the U.S. Attorney's office charged Aikens with multiple counts of trafficking crack cocaine. Because of harsher sentencing penalties for using and dealing crack, his sentence for selling 2.2 ounces of crack cocaine was treated as though equivalent to selling 15 pounds of powder cocaine.

Click here to read more. Crack the Disparity Logo www.CrackTheDisparity.com    Editor's Note:

Welcome to the inaugural edition of the Crack the Disparity Coalition's quarterly e-newsletter. We unveil this publication on an important day, the 22nd anniversary of Len Bias' death - a young man at the apex of a promising basketball career, whose drug overdose fueled the passage of the harsh sentencing law this coalition seeks to change.
This newsletter is designed to maintain the momentum that is propelling reform by keeping advocates updated on news and events related to eliminating the crack cocaine disparity. This newsletter can also be accessed at www.crackthedisparity.com where additional advocacy resources and information can be found.   Crack Cocaine Reform - The Struggle Continues
Struggle By Nkechi Taifa, Esq.

In 1994, the U.S. Sentencing Commission issued a call for public comment on laws creating a differential in sentencing between crack and powder cocaine offenses. The federal law, passed after the cocaine-induced death of basketball star Len Bias, requires a mandatory minimum five year sentence for a first time offender's simple possession of five grams of crack cocaine. It takes trafficking in 100 times as much powder cocaine - 500 grams - to trigger the same five year sentence. This has come to be known as the 100:1 quantity disparity between crack and powder cocaine. Click here to read more.
Crack Cocaine Legislative Update By Kara Gotsch

Since the judiciary subcommittees on crime in the U.S. House and Senate held hearings on crack cocaine sentencing reform in February, legislative momentum has slowed in Congress. Even with a total of seven reform bills pending, no committee has held a vote on the bills and none are currently planned. Now is the time to remind Congress that their constituents demand a fairer sentencing structure that eliminates the quantity disparity between crack and powder cocaine and limits the excessive penalties for low-level drug offenses. Public pressure is essential to garner Congress's support for reform and move legislation along. Click here to read more.
Grassroots Agenda: June, July, August By Calli Schiller

As Congress prepares to adjourn for the July 4th and August recesses, now is an excellent time for you to plan grassroots activities centered in the legislators' home-districts. While some Members of Congress (MOC) use these recesses to vacation with their families, many legislators are working in their district offices. This presents an excellent opportunity for in-district meetings, town-hall meetings and site visits. Click here to read more. A Theological Basis for Ending the Sentencing Disparity FaithBy Bill Mefford

The Faith in Action Criminal Justice Reform Working Group, which I co-lead, is made up of faith organizations from across the religious and political spectrums. Groups came together to help achieve passage of the Second Chance Act -- a bill providing assistance for prisoners' reentry -- and we found a number of other issues on which we share values. Our goal is to bring crucial reforms to the criminal justice system and we have identified the current crack and powder cocaine sentencing disparity as grossly unjust and in long overdue need of change.

With 2.3 million people currently incarcerated in the United States, and the numbers only climbing, communities are not safer and the flow of drugs into our communities has not been curbed. Long mandatory minimum sentences deny both judicial discretion as well as necessary treatment for those who suffer from addiction as the root cause of their criminal behavior. Click here to read more. Save the Date CalendarJuly 12-17: 99th Annual Convention of the NAACP in Cincinnati, OH (featuring workshops on crack cocaine reform and practice)

July 23-27: UNITY Journalists of Color 4th Quadrennial Convention and Career Fair, Chicago, IL (featuring workshop on draconian sentencing laws)

July 26-August 2, 2008: National Bar Association 83rd Annual Convention and Exhibits, Houston, TX

September 24-27, 2008: Congressional Black Caucus Foundation 38th Annual Legislative Conference, Washington, D.C.

September 26-September 28, 2008: Critical Resistance 10th Anniversary Celebration and International Conference and Strategy Session, Oakland, CA
October 19-22, 2008: International Community Corrections Association 16th Annual International Research Conference, "Risk, Resilience and Reentry," St. Louis, MO Media Attention MediaWashington Post Magazine Cover Story on Michael Short

Los Angeles Sentinel Coverage on Federal Sentence Reduction

Washington Post Coverage on Crack Offenders Returning Home  
The Crack the Disparity Coalition includes the American Bar Association,
American Civil Liberties Union, Break the Chains, Drug Policy Alliance,
National Association for the Advancement of Colored People,
National Association of Criminal Defense Lawyers, Open Society Policy Center, Restoring Dignity, Inc., Students for Sensible Drug Policy, The Sentencing Project, and United Methodist Church, General Board of Church and Society.  

Dick Morris Tells John McCain to Propose Harsher Cocaine Laws

I noted last week the tendency of our revered political strategists to find themselves stuck in the 80's, arguing that harsh lock-em-up rhetoric is the only way to discuss drug policy in an election.

Well, along comes Dick Morris to prove me right in The Washington Post with this recommendation for John McCain:

Go after the Democrats for their proposals to lower sentences for crack cocaine to make them equal to those for powder cocaine. (Instead, McCain should urge raising penalties for regular cocaine.)

Obviously, the crack/powder disparity is a more nuanced political issue than something like medical marijuana. Still, I have a hard time imagining that voters in 2008 want to hear the candidates promise harsher drug laws.

It's not 1988 anymore. People know those crack laws were racist. People know about our unsustainable, out-of-control prison population. And people know the punishments for cocaine are already plenty harsh. I'm not sure where public opinion breaks on this issue, but I doubt Dick Morris does either.

If I had to guess, I'd say McCain will probably follow the path Morris proposes. The appeal of attacking a candidate who's admitted trying cocaine, and now supports a reduction in crack sentences, will be great. On the other hand, if McCain does this, he'll be standing up for a notoriously racist law in an already racially-charged election.

The candidates should choose their words carefully on this one, as should any political strategist who still thinks proposing longer drug sentences is always a guaranteed winner at the polls.

(This blog post was published by StoptheDrugWar.org's lobbying arm, the Drug Reform Coordination Network, which also shares the cost of maintaining this web site. DRCNet Foundation takes no positions on candidates for public office, in compliance with section 501(c)(3) of the Internal Revenue Code, and does not pay for reporting that could be interpreted or misinterpreted as doing so.)

Sentencing: Federal Crack Sentence Reductions Begin to Take Hold

More than 3,000 federal inmates serving lengthy sentences on crack cocaine charges have won reductions in their sentences since changes in sentencing guidelines approved by the US Sentencing Commission in December took effect at the beginning of March. Some 1,600 inmates are eligible for immediate release, but it was not clear how many had already walked out of prison, the Commission said in a report dated April 21.

The change in sentencing is designed to address what the Commission described as racial disparities in federal sentencing because of more severe penalties for crack cocaine offenses than for powder cocaine offenses. Four out of five federal crack offenders are black, but most powder cocaine offenders are white. The racial breakdown of released prisoners would appear to back the Commission's contention that crack sentences had disproportionately affected blacks: African-American inmates accounted for 84% of those granted sentence reductions.

Attorney General Mukasey and other drug war hardliners had sought to block the early releases, arguing that they would result in a mass release of violent criminals who would wreak havoc on American cities. Mukasey's Justice Department asked Congress to limit the early releases to first-time nonviolent offenders, but Congress did not act on that request. Commission statistics showed that only 9% of prisoners granted sentence cuts were violent or repeat offenders, while 30% were minor or first-time offenders.

The new sentencing guidelines will allow some 20,000 federal crack offenders to seek reductions. So far, slightly more than 3,600 have requested reductions, with more than 80% winning sentence cuts.

Crack Sentencing Gets a Hearing on Capitol Hill While Advocates Mobilize

With the early release of some crack cocaine prisoners set to get underway next week and pressure mounting to do something about the disparity between sentences for crack and powder cocaine offenses, the House of Representatives this week turned its attention to the issue. A Tuesday hearing in the House Judiciary Committee's Subcommittee on Crime, Terrorism and Homeland Security saw spirited discussion of both retroactive sentence reductions for current crack prisoners and a number of bills that seek to address the disparities between crack and powder sentences.

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Alva Mae Groves died in prison at age 86 while serving a 24-year crack cocaine sentence after refusing to testify against her children. (photo courtesy november.org)
Also Tuesday, as House members debated the merits of the various proposals, drug reform, civil rights, and civil liberties groups led a day of lobbying on the Hill. Key for the activists was maintaining retroactivity so that sentence reductions for crack offenders will apply to those currently imprisoned and persuading Congress members to come together behind a sentencing reform bill that will reduce disparities.

The day of lobbying was kicked off with a morning press conference featuring Reps. Bobby Scott (D-VA), Bobby Rush (D-IL), Sheila Jackson-Lee (D-TX), and Chris Shays (R-CT), as well as former crack prisoners Dorothy Gaines and Michael Short, who was granted clemency in December by President Bush after serving more than 15 years. After that, it was on to the Hill.

"We were in meetings all day," said Bill Piper, national affairs director for the Drug Policy Alliance, which joined forces with state delegations and national organizations including the ACLU, the Sentencing Project, and Families Against Mandatory Minimums in the day of action on the Hill. "There were a lot of good interactions, and there is a lot of optimism about the prospects for change on the Hill. There is a strong sense that legislation could move in the next week or two," he said.

The question is which legislation? At least four bills -- H.R. 79, H.R. 360, H.R. 4545, and H.R. 5035 -- that would address the crack-powder cocaine sentencing disparity have been introduced in the House, and there are more in the Senate. They mandate changes ranging from completely equalizing crack and powder sentencing to reducing the discrepancy to a ratio of 20:1.

Under current sentencing laws, written during the crack hysteria of the mid-1980s, it takes 500 grams of powder cocaine to earn a five-year mandatory minimum prison sentence, but only 5 grams of crack. That 100:1 disparity has resulted in the imprisonment of thousands of people, mostly black (even though most crack users are white), for lengthy periods of time.

"It appears that most members of Congress, as well as the public, agree that the current disparity in crack and powder cocaine penalties is not justified and that it should be fixed," said subcommittee chair Rep. Scott as he kicked off Tuesday's hearing. "However, there is not yet a clear consensus on what that fix should be."

The basis for the sentencing disparity between crack and powder was based not on science or evidence, "but political bidding based on who could be the toughest on the crack epidemic that was believed to be sweeping America several years ago," Scott said. "There is certainly no sound basis for a five-year mandatory minimum sentence for the mere possession of five grams of crack, when you could get probation for possessing a ton of powder, because mandatory minimum sentences for powder only apply to distribution, not possession cases."

Scott then offered his bill, H.R. 5035, as the best fix. "It is a simple bill that goes the furthest in addressing the problems in the current cocaine sentencing laws," Scott said. "First, it eliminates the legal distinction between crack and powder cocaine, treating them as the same drug, which they are. The bill also eliminates all mandatory minimum sentences for cocaine offenses. And lastly, it authorizes funding for state and federal drug courts, which have both proven to be effective in preventing recidivism and saving money, when compared to longer periods of incarceration."

Rep. Charles Rangel (D-NY), one of the architects of tough crack sentencing laws in the 1980s, was singing a different tune Tuesday -- as he has for some years now. "There's no question in my mind that those people who thought that people involved with possession of crack should be sentenced at higher thought that it would in some way serve the community better," he said. "Clearly, that is not the case, and we find that to take the discretion in determining who goes to jail and who doesn't go to jail is showing lack of confidence in our judges."

Rep. Jackson-Lee, whose own bill, H.R. 4545, also addresses the crack-powder sentencing disparity, said it was time to "finally eliminate the unjust and unequal" disparities and "right the wrongs" created by the harsh anti-drug laws of the 1980s. "For the last 21 years," said Jackson-Lee, "we have allowed people who have committed similar crimes to serve drastically different sentences for what we now know are discredited and unsubstantiated differences."

It wasn't entirely an anti-disparity, pro-reform love fest in the committee, though. Ranking minority member Rep. Louie Gohmert (R-TX) said that while he supported efforts to redress the crack-powder sentencing disparity, he was worried that the Sentencing Commission's decision to make changes in the sentencing guidelines retroactive would lead to the release of violent criminals. "As a former judge and chief justice, I am vigilantly reluctant to legislatively overturn the past judgment of judges or juries, who were in the best position to consider the offense and the offender," he said.

He was echoed by a Justice Department representative. "Any reforms should come from the Congress, not the US Sentencing Commission; and second, any reforms, except in very limited circumstances, should apply only prospectively, not retroactively," testified Gretchen Schappert, US Attorney for the Western District of North Carolina, laying out the Justice Department position. "We continue to believe that a variety of factors fully justify higher penalties for crack offenses. It has been said, and certainly it has been my experience, that whereas powder cocaine destroys an individual, crack cocaine destroys a community." DOJ chief Michael Mukasey has been trying to stymie retroactive releases as well, and the DOJ home page currently devotes its top link to a speech he gave to the Fraternal Order of Police on the topic.

But the committee also heard from Michael Short, a Baltimore man who served nearly 16 years in prison for selling two ounces of crack before President Bush granted him clemency last year. "I know what I did was wrong," Short told the committee. "I sold illegal drugs, and I deserved to be punished. But what I did and who I was did not justify the sentence I received. And while today I am telling my story, it is also the story of many men that I know in prison, nonviolent offenders serving 10, 20 or 30 years for crack cocaine offenses. I did not need 20 years to convince me of the error in my ways, to punish me or to set me on a right path. My sentence was altogether too long. It was too long because of the way the law treats crack cocaine. Twenty years is the kind of sentence that drug kingpins should get -- big-time drug dealers. But I was not a drug kingpin. I was sentenced like one, because the drug I was convicted for was crack cocaine."

Short also took issue with the characterization by the Justice Department and some committee members of crack offenders as dangerous criminals. "I have heard some of the comments some people in positions of power have made about crack cocaine prisoners -- that we are violent gang members and that this is why our sentences have to be so much longer. I am not that person, and most of the people that I leave behind in prison aren't either," he said. "Although I made a terrible mistake, there was no violence in my crime. I was not a gang member. I was sentenced for such a long time because of a stereotype."

Now, with hearings having been held in both chambers of the Congress -- the Senate held one two weeks ago -- it is time to get those bills moving. And that is what is happening behind the scenes on the Hill, said Piper.

"Senators Sessions, Biden, and Hatch are sitting down and trying to work out a compromise," he said. "They're trying to come up with something they can all agree on that will also pass on the floor. My sense is that it will not be the complete elimination of the sentencing disparity, but somewhere in between Hatch's 20:1 ratio and Biden's 1:1. It will likely end up being 5:1 or 10:1," Piper predicted.

Reducing the crack-powder sentencing disparity would be a "wonderful development," said Robert Weiner, former public affairs director for drug czar Gen. Barry McCaffrey. "These sentences are just crazy, they're part of the gross distortion of the criminal justice system. If you're going to do the crime, you should do the time, but it should be the same time for the same crime," he said.

But the Justice Department's strident effort to roll back retroactivity could throw a wrench in the works, Piper warned. "That is a complicating factor," he conceded. "We hope to keep that out of any compromise bill. Thousands of families are waiting for their loved ones to come home soon, and we don't want to disappoint them."

Now, after years of inaction, Congress may finally act. But it's not a done deal yet, and there is many an obstacle between here and the passage of a bill that would restore a measure of justice to crack cocaine sentences.

Drug Policy Alliance: Crack the Disparity -- Call the U.S. Senate Now!

[Courtesy of Drug Policy Alliance] 

Imagine being able to reform one of the worst federal drug laws of all time. You can do it. The draconian crack/powder cocaine sentencing disparity is on the ropes. We need you to provide the knock-out punch.

Today is a national call-in day on the issue. Please take a few minutes to call your two U.S. Senators and urge them to “eliminate the crack/powder disparity by supporting S. 1711, The Drug Sentencing Reform and Cocaine Kingpin Trafficking Act.” If you can’t call today, that’s OK. Call as soon as you can. Any time this week would be great. It's easy--our website will give you the phone numbers and tell you what to say.

Make a Call

Two weeks ago the Senate Crime and Drugs Subcommittee had historic hearings on the crack/powder issue. The House Crime, Terrorism and Homeland Security Subcommittee is having hearings this week. The Drug Policy Alliance and almost a dozen other national groups are bringing in people from around the country to lobby key members of Congress tomorrow.

Support for reform is growing in both the House and Senate and among both Democrats and Republicans. We hope legislation reducing or eliminating the disparity will move within the next couple of weeks.

It’s not every day we have an opportunity to reduce government waste, improve public safety, promote fairness and restore some sanity to U.S. drug policy. So I hope you take a few minutes to make two phone calls.

Phone calls will make the biggest impact in this campaign. But if you can't call, you can look up the email addresses and fax numbers for your two U.S. Senators at http://www.senate.gov/ .

You can find fact sheets, talking points and articles about crack/powder reform here.

Sincerely,

Bill Piper
Director, Office of National Affairs
Drug Policy Alliance Network 

Location: 
Washington, DC
United States

Michael Mukasey's Cracked Crack Logic

One of the reasons to already be unhappy with the choice of Michael Mukasey as Attorney General is his opposition to retroactively applying the minor sentencing reductions that the US Sentencing Commission enacted for federal crack cocaine prisoners. Former prisoner Malakkar Vohryzek has called him out for fear-mongering distortions on the issue over at D'Alliance. With a little number crunching, Vohryzek finds that in New York City, for example, if every application for a sentencing reduction is approved, all of eight people serving crack cocaine sentences will get out an return to the community a little early. Yet Mukasey has somehow predicted a "crime wave." Shame on him. The NAACP's Hilary Shelton -- a stalwart of the campaign to restore college aid eligibility to students who've lost it because of drug convictions, an effort many of you have read about here -- had strong words for Mukasey (via the Sentencing Law and Policy blog):
The NAACP was both saddened and offended by Attorney General Michael Mukasey's call for Congress to override the decision by the U.S. Sentencing Commission to apply their May 2007 decision to reduce the recommended mandatory minimum sentencing range for conviction of possession of crack cocaine retroactive to those already in prison. "Attorney General Mukasey's characterization of people currently in prison for crack cocaine convictions, and of the impact that a potential reduction in their sentences could have on our communities, is not only inaccurate and disingenuous, but it is alarmist and plays on the worst fears and stereotypes many Americans had of crack cocaine users in the 1980s," said NAACP Washington Bureau Director Hilary O. Shelton. "The fact that a federal judge will be called to review every case individually and take into account if there were other factors involved in the conviction, whether it be the use of a gun, violence, death or the defendant's criminal history before determining if the retroactivity can apply, appears to have eluded the Attorney General," Shelton added. "Furthermore, because more than 82 percent of those currently in prison for federal crack cocaine convictions are African Americans and 96 percent are racial or ethnic minorities, the NAACP is deeply concerned at the Attorney General's callous characterization that many of the people in question are 'violent gang members'."
Also quoted on Sentencing Law and Policy, criticism of Mukasey by the New York Times.
Location: 
United States

Senate to Hold Long-awaited Hearing on Federal Cocaine Sentencing Laws

[Courtesy of The Sentencing Project] Dear Friends: The Subcommittee on Crime and Drugs of the Senate Committee on the Judiciary will hold a hearing on "Federal Cocaine Sentencing Laws: Reforming the 100-to-1 Crack/Powder Disparity" on Tuesday, February 12 at 2:00 p.m. in Room 226 of the Senate Dirksen Office Building. "The Sentencing Project applauds the Committee for addressing this longstanding disparity," stated Marc Mauer, Executive Director of The Sentencing Project. "Reforming crack cocaine policy will help to remedy the unfairness and ineffectiveness of federal drug policy." Witnesses at the hearing will be: - U.S. Department of Justice designee - The Honorable Ricardo H. Hinojosa, Chair, U.S. Sentencing Commission, Washington, DC - Dr. Nora Volkow, Director, National Institute on Drug Abuse, U.S. Department of Health & Human Services, Washington, DC - The Honorable Reggie B. Walton, Criminal Law Committee, Federal Judicial Conference, Washington, DC - James Felman, Co-Chair, Sentencing Committee, Criminal Justice Section, American Bar Association In addition, Marc Mauer, has been invited by the Committee to submit written testimony, focusing on the public safety consequences of crack reform and impact on racial disparity. Committee Chairman Sen. Joseph Biden (D-DE), has taken a lead in reforming the crack cocaine disparity by introducing the Drug Sentencing Reform and Kingpin Trafficking Act of 2007 (S. 1711), which would eliminate the 100 to 1 quantity-based sentencing disparity between crack and powder cocaine. The legislation would also focus federal law enforcement efforts on serious drug traffickers instead of the low-level offenders who are currently the target of most federal crack prosecutions. This hearing follows the U.S. Supreme Court's affirmation of judicial discretion to sentence below the guideline range based on the unfairness of the crack cocaine sentencing disparity, and the United States Sentencing Commission's vote to make retroactive its recent guideline amendment on crack cocaine offenses.
Location: 
Washington, DC
United States

Sentencing: Mukasey Tells Congress to Pass Bill Blocking Early Release for Crack Prisoners

US Attorney General Michael Mukasey took his campaign against retroactive early releases for people sentenced under the federal crack cocaine laws to a new level Wednesday as he called on Congress to pass legislation by March 3 to block the releases. This week's call to arms comes just a few days after Mukasey first sounded the alarm about the release of crack prisoners, raising the specter of thousands of criminals pouring out of the nation's prisons and wreaking havoc on the streets.

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Michael Mukasey -- the mini-Ashcroft
Mukasey is responding to a decision by the US Sentencing Commission in December to make changes in the crack sentencing guidelines retroactive so they will apply to about 20,000 prisoners doing time under the crack laws. Earlier in the year, the commission had changed the sentencing guidelines for current offenders. The decision making the changes retroactive will go into effect March 3.

While as many as 20,000 crack prisoners could apply for sentence cuts, each one will have to go through a judicial process, and the cuts are not guaranteed. And only about 1,600 of them are eligible for sentence cuts that could result in their being released this year.

But that hasn't stopped Mukasey from playing up the fear angle. He was at it again Wednesday during a House Judiciary Committee hearing. In testimony prepared for that hearing, Mukasey said, "Overall, the Sentencing Commission estimates that retroactive applications of these lower guidelines could lead to the re-sentencing of more than 20,000 crack cocaine offenders, any number of whom will be released early."

Congress needs to act to avert that threat, Mukasey said. But given that March 3 is less than a month away, given that Congress very rarely moves so swiftly, and given that Congress passed on the chance to kill the retroactivity provision last year, Mukasey seems unlikely to get his wish.

Drug War Issues

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