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Crack/Powder Cocaine Disparity

Obama Supports Ending the Cocaine Sentencing Disparity

Good news from Washington, D.C.:

Justice Department officials this morning endorsed for the first time proposed legislation that would eliminate vast sentencing disparities for possession of powdered versus rock cocaine, an inequality that civil rights groups say has disproportionately affected poor and minority defendants.

Newly appointed Criminal Division chief Lanny A. Breuer told a Senate Judiciary Committee panel this morning that the Obama administration would support bills to equalize punishment for offenders accused of possessing the drug in either form, fulfilling one of the president's campaign pledges.

Breuer explicitly called on Congress to act this term to "completely eliminate" the sentencing disparity. [Washington Post]

The cocaine sentencing disparity has been a festering indefensible abomination for decades, and now that we're finally on track to fix this mess once and for all, I don't hear anyone complaining. It's great that the new administration is following through on their promises to support sentencing reform, but it's also just appalling to think that it's taken this long to get any momentum going towards fixing this notorious injustice. There was never anything to be afraid of.

Fixing dumb laws is the duty of the Congress and they'd be hard pressed to find a dumber one than this. Don't make this more complicated than it has to be. Just fix it already.

Crack the Disparity Newsletter Vol. 1, No. 2

[Courtesy of the Crack the Disparity Coalition] Secure Fairness in Crack Cocaine Sentencing -- Join Lobby Day this Spring Plans are underway for the second national lobby day for crack cocaine sentencing reform in Washington, DC, hosted by the Crack the Disparity Coalition. An exact date has not yet been set but we invite advocates from around the country to attend the Capitol Hill event this spring. As a participant, you will speak with Members of Congress and their staff about the unjust sentencing disparity between crack and powder cocaine and the need to eliminate it. Training and materials will be provided to you. Look for more details in the December issue of the Crack the Disparity Newsletter. Home for the Holidays By Karen Garrison Karen Garrison is the mother of twin sons sentenced to nearly two decades for a first-time nonviolent crack cocaine offense. Her son Lawrence will soon be released due to the U.S. Sentencing Commission's recent changes to the sentencing guidelines for crack cocaine offenses. The dream will be a reality for one of my sons who will be home this December. It has been 10 years and Lawrence and Lamont's room has hardly been touched. I covered the beds with heavy plastic. Long ago I gave away their clothes and shoes to shelters and halfway houses, not only because of their weight loss, but clothing goes out of style in a period of ten years. I must now begin to prepare a place for one of my twins, never forgetting that one will remain behind unjust bars. I am buying sheets, towels, and gathering healthy recipes he will enjoy preparing. I will try to purchase new furniture and have already bought the paint for his room. Coming home to those same bunk beds would just make it harder on both of us. Those are the beds he shared with his twin brother Lamont. Commute Crack Cocaine Sentences in Time for the Holidays By Jasmine Tyler This month the Crack the Disparity Coalition launched the "Home for the Holidays" campaign to rally support for individuals serving excessive penalties for crack cocaine offenses who have filed commutation requests with President George W. Bush. The President expressed concern for the crack cocaine sentencing disparity in the early days of his administration. The sentencing disparity "ought to be addressed by making sure the powder-cocaine and the crack-cocaine penalties are the same," he said in 2001. "I don't believe we ought to be discriminatory." Advocates are hoping to capitalize on these sympathies to expedite applications for crack cocaine cases and increase recommendations for clemency. The campaign is promoting support for clemency applicants seeking relief from the uniquely severe penalties for low-level crack cocaine offenses that subject defendants possessing as little as 5 grams of crack cocaine to a mandatory minimum sentence of five years. A powder cocaine defendant must be convicted of selling 100 times that amount to trigger the same sentence. Since Congress has yet to act to alleviate this disparity, advocates' focus this fall is to ensure that those who are seeking clemency do not go unheard. Teen Profiles Crack Cocaine Reformer: Pamela Alexander - A Profile in Courage By Laura S., Cincinatti, OH This article was reprinted courtesy of TeenInk.com, a nonprofit, national teen magazine, book series, and website devoted entirely to teenage writing and art. On December 11, 2007, members of the United States Sentencing Commission voted unanimously to make a groundbreaking change in one of their policies. They decided that the disparity between sentences for crack cocaine crimes and those involving powder cocaine was exceedingly unjust and prejudiced. With crack users being predominantly black and powder cocaine users predominantly white, the Sentencing Commission judged the much harsher sentences for crack users to be racially biased at their core. The Commission therefore has allowed thousands currently imprisoned for crack cocaine violations to appeal their sentences before federal judges, in an effort to shorten these sentences where feasible. While this represents a major step toward racial equality and justice, one uncelebrated, independent woman put her career on the line for this same issue - seventeen years ago. Petition President Bush Join citizens concerned about the harsh mandatory minimum sentences for low-level crack cocaine offenses by telling President George Bush and Pardon Attorney Ronald Rodgers to expedite and give special consideration to commutation applicants serving excessive sentences for crack cocaine. Sign a petition by clicking here. Save the Date 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 Spring 2009: Crack the Disparity Lobby Day, Washington, D.C. Media Attention Daily Press Editorial on Equalization of Crack and Powder Cocaine Sun-Sentinel Coverage on Prison Term Reductions for Cocaine Cases Kansas City Star Coverage on Former Kansas City Royal Baseball Player Willie Mays Aikens 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.

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.)

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.)

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.

Good Guys, Bad Guys: Bills Filed to Improve or Worsen Crack Cocaine Sentencing

There are "good guys" and "bad guys" in Congress. More accurately, perhaps, there are members of Congress who do good things at least some of the time, and members of Congress who do bad things some of the time. Among the latest good guys are Rep. Sheila Jackson-Lee, Democrat of Texas, and 32 cosponsors of her bill H.R. 4545, the "Drug Sentencing Reform and Cocaine Kingpin Trafficking Act of 2007," introduced 12/13. H.R. 4545 would ameliorate some of the atrocity that is federal mandatory minimum sentencing by reducing crack cocaine penalties to equal those existing for powder cocaine. The Supreme Court ruling and the Sentencing Commission recommendations that came down recently don't help with the mandatory minimums, but only help with sentencing guidelines cases. The bill also includes language intended to focus federal drug enforcement activity on high-level players instead of small-timers as they do now. One of the latest bad guys is Rep. Lamar Smith, Republican also of Texas, the sponsor of H.R. 4842, introduced 12/19, a nasty bill to reverse the Sentencing Commission's positive ruling in favor of making the recent crack sentencing reductions retroactive. Smith only has eight cosponsors, as compared with Jackson-Lee's 32, and Jackson-Lee has the chairman of the subcommittee of Judiciary that would consider it, Bobby Scott (D-VA). I don't see John Conyers (D-MI) on there yet, the chairman of the Judiciary Committee itself, but he's just as much on our side as Scott is. I don't think Smith has much of a chance on this one, but you never know. Jackson-Lee has been a strong support of our efforts repealing the Higher Education Act's drug provision, and spoke at our 2005 press conference:

U.S. Recommends Early Release for 19,500 Crack Offenders

The sentencing disparity that punishes offenders 100 times worse for crack than for powder cocaine has taken a double hit this week. First the Supreme Court ruled 7-2 that judges may depart from unreasonable federal sentencing guidelines. Then, today, the U.S. Sentencing Commission voted to make the recently revised sentencing guidelines retroactive, meaning that incarcerated offenders may request early release.
Today in an historic vote, the Commission unanimously agreed to allow prisoners serving crack cocaine sentences to seek sentence reductions that went into effect on November 1. Retroactivity will affect 19,500 federal prisoners, almost 2,520 of whom could be eligible for early release in the first year. Federal courts will administer the application of the retroactive guideline, which is not automatic. Courts may refuse to grant sentence reductions to individuals if they believe they could pose a public safety risk.

"The Sentencing Commission made the tough but fair decision to remedy injustice, showing courage and leadership in applying the guideline retroactively. Clearly, justice should not turn on the date an individual is sentenced," said Julie Stewart, president and founder of FAMM. "Retroactivity of the crack guideline not only affects the lives of nearly 20,000 individuals in prison but that of thousands more - mothers, fathers, daughters and sons - who anxiously wait for them to return home," said Stewart. [FAMM]
It took 20 years to even begin taking the teeth out of this vicious law, but it's clear we've now crossed a threshold. Once the curtain was pulled back and the utter racism and ignorance that defined federal cocaine sentencing was revealed for what it was, we witnessed leading politicians jumping on the bandwagon in favor of reform.

So often, we're told by fair-weather supporters of this work that we're naïve; that the power structure forever feeds on the misery of the downtrodden; that the insatiable prison industrial complex and its carnivorous lobbyist minions will always call the shots and that we're pissing in the wind if we think the truths we speak will find traction amidst the marketplace of foul and corrupt ideas that dominate the political culture in our nation's capital.

Indeed, this is a steep uphill battle. But in so many ways, we've moved beyond the initial stage of demonstrating the need for change. They know. Our mission now is to help those in power convert these observations into ideas, then into persuasive words, and finally into decisive actions. Politicians are not always blind to right and wrong, rather they hedge their bets and often fear the political consequences of true leadership above the social consequences of intransigence.

These matters are far from resolved, but today brought hope to 19,500 non-violent drug offenders and their families. It is a victory for justice, a rebuke of the racist drug war doctrine, and, with patience and some luck, a humble sign of bigger things to come.

Some Good News from the Supreme Court on Crack Sentencing

Update: Lots of analysis today at the Sentencing Law and Policy blog There was some good news today from the US Supreme Court on the subject of crack cocaine sentencing. It seems like it should be helpful in other kinds of sentencing as well. The following update, forwarded from The Sentencing Project's listserv, sums it up. I'm pleasantly surprised that this passed by a 7-2 margin -- perhaps judges will feel a little freer to give lighter sentences as a result.
SUPREME COURT RULES THAT JUDGES MAY CONSIDER HARSHNESS OF CRACK POLICY IN SENTENCING Decision Comes on Eve of U.S. Sentencing Commission Vote to Reduce Crack Sentences for Prisoners The Supreme Court ruled 7 to 2 today that a federal district judge's below-guideline sentencing decision based on the unfairness of the 100 to 1quantity disparity between powder and crack cocaine was permissible. Justice Ruth Bader Ginsburg wrote the decision in the case, Kimbrough v. U.S. (06-6330). "At a time of heightened public awareness regarding excessive penalties and disparate treatment within the justice system, today's ruling affirming judges' sentencing discretion is critical," said Marc Mauer, Executive Director of The Sentencing Project. "Harsh mandatory sentences, particularly those for offenses involving crack cocaine, have created unjust racial disparity and excessive punishment for low-level offenses." The Court's decision in Kimbrough comes at a time of unprecedented interest in reforming the mandatory minimum sentencing policy for crack cocaine offenses. Bipartisan legislation has been introduced in Congress and hearings are expected early next year. Moreover, tomorrow, the U.S. Sentencing Commission is expected to vote on whether its recent sentencing guideline reduction for crack cocaine offenses will apply retroactively to people currently serving time in prison. Review today's decision in Kimbrough at: http://www.scotusblog.com/wp/wp-content/uploads/2007/12/06-6330.pdf

Is Rudy Giuliani Shaping Hillary Clinton's Stance on Drug Laws?

Democratic presidential contenders are in universal agreement that it's time to abolish the racist and irrational sentencing disparity that punishes offenders 100 times worse for crack than for powder cocaine. But after the change is made, Hillary Clinton says that people who've already been imprisoned by this racist law should remain in jail. Why? A campaign advisor says it's because she's scared of what Giuliani will say.

Clinton, who said she supports a federal recommendation for shorter sentences for some people caught with crack cocaine, opposed making those shorter sentences retroactive — which could eventually result in the early release of 20,000 people convicted on drug charges.

"In principle I have problems with retroactivity," she said. "It’s something a lot of communities will be concerned about as well." [The Politico]

Clinton pollster Mark Penn explains why her position has everything to do with her fear of Rudy Giuliani:

"Rudy Giuliani is already going after the issue," Penn said. "He's already starting to attack Democrats, claiming it will release 20,000 convicted drug dealers."

Speaking in Florida earlier this month, Giuliani said he "would not think we would want a major movement in letting crack cocaine dealers out of jail. It doesn't sound like a good thing to do."

Ah, but it is. These are people who shouldn't be in jail. And Clinton knows it. Punishing people 100 times worse because their cocaine isn't in powder form is so transparently insane that we really can dispense with the hollow rhetoric about "letting crack cocaine dealers out of jail." The law is so twisted you don’t even have to be a dealer to end up in jail for years.

If Clinton is really this scared of Giuliani, where does it end? The campaign is far from over. Will she continue to shift around uncomfortably every time Giuliani challenges her policy positions? Newsflash: he's gonna talk trash about everything you do, Senator. Get used to it.

We must now ask ourselves to what extent Hillary's other drug policy positions have been shaped by Rudiphobia. When she raised her hand in opposition to marijuana decrim, was that for real? Was there a little Giuliani in a devil suit whispering in her ear, threatening to tell the swing voters what a hippie she is? Will she backtrack on medical marijuana and needle exchange if Giuliani says he disapproves?

We can spend eternity smashing minority communities with our drug war hammers at the behest of authoritarian demagogues like Rudy Giuliani. And if no one speaks up, that's exactly what will happen. So if Giuliani wants to publicly embrace racist drug war politics, let him.

The antidote to the "soft on drugs" label is to stop looking over your shoulder and start speaking with conviction.

The Drug Czar's Blog Accidentally Admits That Drug Laws Ruin Lives

Yesterday, in a post titled "Random Drug Testing Can Save Lives," the Drug Czar once again blogged himself into a corner. The piece quotes extensively from a Kentucky newspaper article, which argues that random drug testing will save students from getting arrested:
"There was a tragedy in Scott County last week. A young man's future was ruined, and the events that took place will likely haunt him for the rest of his life.

Unless you've been on vacation, you've probably already heard that a superstar athlete on the Scott County basketball team was arrested on felony drug charges, which could result in him going to prison for as long as 10 years. [Georgetown News]

That's awful. But what does this have to do with random drug testing?

...Whether we realize it or not, the real tragedy is this young man wasn't caught sooner, through a less punitive program intended to help youthful offenders, not send them to prison. The greater tragedy, to my way of thinking, is that we, as a community and a school system, haven't seen fit to acknowledge reality and implement a random drug testing program in our high school, and perhaps our middle schools.

So what exactly did this young man do that could get him locked away for 10 years? He was arrested for 1.6 grams of crack on school grounds. Crack/powder sentencing disparity + school zone = 10 years for a one-day supply of drugs.

By conceding that this young man's life has been ruined, the Drug Czar does far more to indict our brutally unfair sentencing laws than to promote random drug testing. He is literally telling us that we should let him collect urine from our children, otherwise his drug soldiers will put them in jail for a decade.

And if that doesn't make your head spin, consider that cocaine leaves your system in 1-2 days and will rarely come up in a drug screen anyway. You can smoke crack all night on Friday and pass a drug test on Monday, so none of this whole insane conversation about saving people from crack laws with drug testing even makes sense to begin with.