Friday, November 07, 2008
Hey, now! That's some real change!
As some of you know, I have been working for many years on the crack/powder disparity in the sentencing guidelines, which much more harshly sentences someone possessing a given amount of crack cocaine relative to someone else who is possessing the same amount of powder cocaine. Those efforts have included writing articles both long and short, testifying before the sentencing commission, having a newspaper debate on the issue with Attorney General Mukasey, giving lectures in unusual places and working on appeals in the First, Second, Third, Fifth, Eighth, and Ninth Circuits and in the Supreme Court (in fact, I spent this week working with Dustin Benham on our reply brief on the cert. petition in Spears II). Over the last several months, I have even done some seemingly ineffective lobbying on the issue, including funneling information and arguments to the Obama campaign via a friend with access there. No doubt, they were hearing the same thing from others.
After all this, I was shocked and thrilled to see (via Doug Berman's blog) this passage in President-elect Obama's transition documents:
Eliminate Sentencing Disparities
Obama and Biden believe the disparity between sentencing crack and powder-based cocaine is wrong and should be completely eliminated.
Huh.
It's hard not to feel good today, though I would note that Doug Berman, who knows an awful lot about this stuff, is much less hopeful than I am, and suspects that "entrenched interests" will block this kind of change.
Comments:
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Hey, congratulations. Even if it doesn't work, that still is awesome that you got their attention. Are you trying to get in on the SCt?
What's the justification for the disparities between crack/powder? I've never heard the reasoning behind it.
# posted by 
: 12:52 PM
: 12:52 PM
Pope, the original justification was that powder was somehow less dangerous than crack, despite them being (chemically) the same substance. The reality is that powder has always been a drug for richer, whiter people, whereas crack, being very diluted, has been the choice of poorer, darker communities, and the Legislature of the 1980s was a bit... well, dumb.
But because revising the guidelines looks "soft on crime," lots of politicians have refused to try, and the circuit courts have been pretty forceful in upholding the guidelines and reversing judges that depart downward. However, there is some support on the Supreme Court (most notably from that raging liberal activist Scalia) to say that the guidelines impermissibly infringe on the inherent powers of a neutral and detached judiciary.
The Prof. also has a fairly novel moral argument that the sentencing disparity is not only unjust, but a bad law because it lacks consonance with our sense of morality.
But because revising the guidelines looks "soft on crime," lots of politicians have refused to try, and the circuit courts have been pretty forceful in upholding the guidelines and reversing judges that depart downward. However, there is some support on the Supreme Court (most notably from that raging liberal activist Scalia) to say that the guidelines impermissibly infringe on the inherent powers of a neutral and detached judiciary.
The Prof. also has a fairly novel moral argument that the sentencing disparity is not only unjust, but a bad law because it lacks consonance with our sense of morality.
Pope-- If you link up to that Waco Trib piece, you'll see the genesis of it-- the death of one basketball player, Len Bias. He was the top draft pick of the Celtics, and died the night of the draft. Two Bostonians-- Tip O'Neill and Ted Kennedy-- then spearheaded the drive for the 100:1 ration, which had no real science behind it. There is a 2007 report from the Sentencing Commission staff that does a great job of substantiating this.
Are we going to study this in the Post-Conviction Procedure: Sentencing class? (I haven't picked up my syllabus yet)
Justin--
A little bit, but I'm not the kind of professor who assigns his own articles for class or anything.
I do know the guidelines pretty well! But the secret of good teaching is making complex things simple, not the opposite, so that will be my focus.
A little bit, but I'm not the kind of professor who assigns his own articles for class or anything.
I do know the guidelines pretty well! But the secret of good teaching is making complex things simple, not the opposite, so that will be my focus.
Congratulations! That's great, to get the sentencing issue prominently on the radar screen.
# posted by : 10:06 PM
: 10:06 PM
Is that how the world looks when you take illegal substances?
Lane ~ your description of Scalia brought a smile to my face.
Scalia's become more open minded because in this down economy his friends can't afford powder anymore.
Lane ~ your description of Scalia brought a smile to my face.
Scalia's become more open minded because in this down economy his friends can't afford powder anymore.
Well, cross your fingers. In DC, the law of unintended consequences rules.
Meanwhile, Did the average Obama voter think that he or she was voting for a bailout of Detroit? THIS is a first priority? Not sure Jennifer Granholm would be on my list of top economic adviors....
Meanwhile, Did the average Obama voter think that he or she was voting for a bailout of Detroit? THIS is a first priority? Not sure Jennifer Granholm would be on my list of top economic adviors....
# posted by : 12:47 PM
: 12:47 PM
I agree with you, IP-- I do wish someone around here believed in capitalism.
I think Bush's 700 billion dollar bailout opened the floodgates, and now no large corporations think they should pay the price for poor decisions or bad timing.
If GM gets a bailout, they might spend the money on a merger, like some of the banks did.
I think Bush's 700 billion dollar bailout opened the floodgates, and now no large corporations think they should pay the price for poor decisions or bad timing.
If GM gets a bailout, they might spend the money on a merger, like some of the banks did.
Coming from Detroit and having too many friends to count that are still (perhaps not for long) employed in the auto industry it is hard to believe the US can let the auto industry fail.
That being said, the ONLY way I would support any type of auto industry bailout would be for all money provided to be tied to the retooling of SUV plants into plants that build AFFORDABLE, energy conscious cars. Great gas mileage whether it be electric, hybrid, gasoline, etc.. powered. The key being the vehicle MUST be safe and AFFORDABLE for 'Joe Middle Class'.
The Big 3 (or whoever is left) will not complain because they already know how to do this. They just haven't been forced to provide this level of efficiency and affordability to the American people.
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That being said, the ONLY way I would support any type of auto industry bailout would be for all money provided to be tied to the retooling of SUV plants into plants that build AFFORDABLE, energy conscious cars. Great gas mileage whether it be electric, hybrid, gasoline, etc.. powered. The key being the vehicle MUST be safe and AFFORDABLE for 'Joe Middle Class'.
The Big 3 (or whoever is left) will not complain because they already know how to do this. They just haven't been forced to provide this level of efficiency and affordability to the American people.
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