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Tilting at Windmills

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December 10, 2007
By: Kevin Drum

CRACK vs. POWDER....The Supreme Court ruled today that it's OK for judges to "consider the disparity between the guidelines' treatment of crack and powder cocaine offenses" when sentencing crack cocaine sellers. If I'm doing the math correctly, they approved a judge's reduction in a crack case from 100x the guideline for powder cocaine to only 80x. I guess this counts as progress.

Kevin Drum 12:08 PM Permalink | Trackbacks | Comments (24)

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Check out the Rolling Stone's story on the Drug War. Very thorough and insightful.

Posted by: absent observer on December 10, 2007 at 12:25 PM | PERMALINK

Whoops! wrong thread.

Posted by: crackado on December 10, 2007 at 12:25 PM | PERMALINK

Pretty bad ruling from the liberal judicial activists on the Supreme Court. How can the liberals justify overruling a law of Congress which requires judges to impose a certain minimal sentence on crack users? It is the job of judges to apply the law while Congress makes the law. The judge is like an umpire who applies the law as it was written.
Suppose a pitcher threw three strikes, but the umpire decided declaring the batter out was too tough a sentence, and so he decided four strikes was needed before the batter was out. This would be indefensible. Same thing here by allowing judges to give lower sentences when on a whim they decide the sentence is too "tough" or too "hard" for the criminal. If criminals don't want to go to jail, they should stop committing crimes.

Posted by: Al on December 10, 2007 at 12:29 PM | PERMALINK

If criminals don't want to go to jail, they should stop committing crimes.
Posted by: Al

Just like Wayne DuMond, Al? Don't think we've forgotten your loathsome defense of him on this blog, scum.

Posted by: DJ on December 10, 2007 at 12:33 PM | PERMALINK

Criminals must commit crimes. It's their definition.

Posted by: absent observer on December 10, 2007 at 1:00 PM | PERMALINK

I suppose the Supreme Court will next review the terrible injustice of the disparity between penalties for driving under the influence versus biking under the influence. Clearly these laws discriminate against suburban citizen too poor to afford to live in areas where one could bike from place to place.

The notion that crack and cocaine laws should be the same regardless of the huge disparities in associated crimes for each drug doesn't make much sense. However, count me among those that believes the current disparity (100:1) is too broad. It may have made sense during the rise of the crack epidemic but surely needs to be revisited. In fact this is what a commission that looked at this issue found back in 1995. You can read the executive summary here But even this commission accepted that there would likely continue to be some disparity in the sentencing guidelines:

Quantifying Harm: Some argue that a sentencing system must punish different forms of the same drug equally. The Sentencing Commission disagrees. If a particular form of a drug results in greater harms than a different form of that drug, then logically a harsher penalty for the more harmful drug can be justified. In assessing the relative harms posed by the two forms, the aim is to arrive at a penalty differential that approximates the increased dangers posed by the more harmful drug.

Posted by: Hacksaw on December 10, 2007 at 1:05 PM | PERMALINK

Hacksaw, part of your comment is absolute rubbish. It is the possession of the crime that's the issue here not what may or may not happen as a result. So you want people to be punished for something they've not done yet?

If someone is high on crack and commits a criminal offence and someone else is high on cocaine and they commit the same offense then they get the same sentence period.

If one person is charged with possesion of a quantity of crack and another person is charged with the same quantity of cocaine, please tell me why they should get different sentences for the possession only?

Posted by: GOD on December 10, 2007 at 1:25 PM | PERMALINK

Because crack is responsible for more violence, gangs, and crime than cocaine. As the sentencing commission found:

Violence (see Chapter 5): Crack cocaine is associated with systemic crime (crime related to its marketing and distribution) to a greater degree than powder cocaine. Researchers and law enforcement officials report that much of the violence associated with crack cocaine stems from attempts by competing factions to consolidate control of drug distribution in urban areas. Some portion of the distribution of powder cocaine, and the majority of the distribution of crack cocaine,
is done on street-corners or in open-air markets, crack houses, or powder shooting galleries between anonymous buyers and sellers. These distribution environments, by their very nature, are highly susceptible to conflict and intense competition. As a result, individuals operating in these surroundings are prone to be involved in, as well as victimized by, increased levels of violence. Consistent with its distribution forums, crack offenders are more likely to carry weapons than individuals trafficking in other drugs (27.9% of crack offenders possess dangerous weapons compared to 15.1% of powder cocaine offenders ) see Chapter 7) and are more likely to have more extensive criminal records (10.4% of crack cocaine defendants have the highest criminal history category compared to 4.8% for powder cocaine defendants )

This is also why other drugs have different sentencing guidelines. If the point was merely to criminalize the possession of a narcotic and the nature and effects of the drug (on the individual or on society) were irrelevant, then one would expect the same penalty for possession of like units of pot, crack, cocaine, heroin, meth, and so on. Most people however intuitively understand that how "bad" a given drug is does and should affect the penalty for possessing it.

Posted by: Hacksaw on December 10, 2007 at 1:32 PM | PERMALINK

While I never respond to "Al" because his comments are such blithering idiocy, I did want to point out one fact lest anyone be left with the wrong impression from reading his comment: the judge in the Kimbrough case did impose the minimum sentence required by Congress given the relevant amount of crack cocaine involved. (This is also why, Kevin, the judge was only able to drop down to "80x" cocaine. He hit the mandatory statutory minimum.) There was no overruling of Congressional legislation here -- only a refusal to apply the sentence stated in teh guidelines promulgated by the US Sentencing Commission, which (the Court reiterated today) are merely advisory.

Posted by: Glenn on December 10, 2007 at 1:33 PM | PERMALINK

Oops...preview is my friend, preview is my friend...

Posted by: Glenn on December 10, 2007 at 1:34 PM | PERMALINK


Hacksaw, that's exactly the reason why this stupid war on drugs make no sense.

If the possession of a narcotic is illegal then it is illegal period. Once you start going down the road of what could happen as a result of the possession, then you open up these cans of worms that don't necessarily reflect only the effect of the drugs, but other factors too.

Show me any other area of the criminal justice the uses these type of tortured logic. We should not be in the business of sentencing people based on what they may do.

Posted by: GOD on December 10, 2007 at 1:41 PM | PERMALINK

Um, Hacksaw, where do you think crack comes from? It's made from powder cocaine. Logically, there should be a worse punishment for having large quantities of powder cocaine on hand since you can then use it to make crack.

Of course, logic has never been part of the drug war, has it?

Posted by: Mnemosyne on December 10, 2007 at 1:53 PM | PERMALINK

"If I'm doing the math correctly, they approved a judge's reduction in a crack case from 100x the guideline for powder cocaine to only 80x. I guess this counts as progress."

I take it that you guys don't know that it was Charlie Rangle (D NY), who was the driving force for having the Sentencing Guidelines so tough on crack cocaine vis-a-vie powder cocaine because of the carnage it was doing in the Black community in the late 80s and early 90s.

In true typical liberal fashion, this difference has now become evidence of the "racism" that is inherent in the system. When in fact it caused by the one of the leading Democratic African American Congressmen and most likely backed by the Congressional Black Caucasus.

Posted by: Chicounsel on December 10, 2007 at 1:53 PM | PERMALINK

I'm with Al. It's unfortunate to see judges substituting their judgment for that of the elected legislators. Sadly, it's natural for appellate judges to trust other judges. So, we see opinion after opinion adding power to the judicial branch -- power that the founders tried to put into the legislative branch.

The ruling also hurts black people. Sure, it helps the black criminals, but in doing so it hurts the victims whom they prey on.

In general, there's been far too much focus on black people who do bad things. That's because liberalism looks to find victims. Black advancement would be more rapid if the focus were on role models with positive achievements. E.g., I suspect most of you have heard of the Jena six, but how many know the name David Blackwell?

Posted by: ex-liberal on December 10, 2007 at 2:16 PM | PERMALINK

He is a Statistician. Game theory and Beyesian inference are just two of his many contributions to the field. He wrote something like a hundred published papers in his long and illustrious career.

Posted by: Volatile Compound on December 10, 2007 at 2:24 PM | PERMALINK

Well the first example that comes to mind regarding laws ascribing different penalties for essentially the same act are hate crimes. While not exactly the same as crack versus cocaine, in both cases penalties are strengthened because one offense (crack, hate crime) is deemed to cause more social harm than the other.

Moreover, the stiffer penalties for crack are not premised on "sentencing people based on what they may do" but are premised instead on the negative effects of the drug itself. The crack epidemic was incredibly violent and destructive which is why penalties for possessing crack were made stiffer.

Posted by: Hacksaw on December 10, 2007 at 2:58 PM | PERMALINK

It seems like you should subtract the weight of the baking soda and calculate the sentence that way.

BTW, I'm glad they didn't put baking soda behind the pharmacy desk like they did allergy pills.

Posted by: B on December 10, 2007 at 3:58 PM | PERMALINK

Moreover, the stiffer penalties for crack are not premised on "sentencing people based on what they may do" but are premised instead on the negative effects of the drug itself. The crack epidemic was incredibly violent and destructive which is why penalties for possessing crack were made stiffer.

Crack is cocaine. The difference is that crack users tend to be poorer and have darker skin. Anatole France's mockery of the 'blindness' of justice is every bit as true today as it was a century ago.

Posted by: freelunch on December 10, 2007 at 5:11 PM | PERMALINK
I take it that you guys don't know that it was Charlie Rangle (D NY), who was the driving force for having the Sentencing Guidelines so tough on crack cocaine vis-a-vie powder cocaine because of the carnage it was doing in the Black community in the late 80s and early 90s.

So? That something was well-intended when it was crafted does not mean that it is, in practice, a good idea, nor does the fact that its original intent was not racist mean that its continuation as policy is not both motivated by racism and having a racially disparate effect unjustified by any public policy good that it could legitimately be argued, based on the facts, to serve.

Posted by: cmdicely on December 10, 2007 at 5:59 PM | PERMALINK

If it is found veterans of Iraq are responsible for more violence, gangs and crime than nonveterans of Iraq, perhaps they should have special punitive sentencing laws created just for them.

Veterans have been well trained to be incredibly violenct and destructive, which is why some might argue penalties for their crimes should be made stiffer.

Posted by: Brojo on December 10, 2007 at 6:09 PM | PERMALINK

Al, let me get this straight. You think this is a "liberal activist" opinion when Roberts and Scalia supported it, and when Thomas and Alito voted dissented only because it tries too hard to hold onto the sentencing guidelines that the Court had already said were unconstitutional? The Court's conservatives have consistently opposed the federal sentencing guidelines since Apprendi back in 2000. Congress gets to decide how to define crimes, and gets to decide punishments for them. But Congress can't make a law that subjects people to increased punishment based on facts not proved to the jury. That's not judicial activism, that the Sixth Amendment. You obviously haven't read the opinion, or you couldn't be bothered to understand it.

Posted by: omarshanks on December 10, 2007 at 7:15 PM | PERMALINK

It's unfortunate to see judges substituting their judgment for that of the elected legislators.

So when elected legislators pass a law banning firearms, the judicial branch has no business declaring the law unconstitutional?

You have no understanding of the role of the Supreme Court or judicial branch whatsoever--which is pathetic, because it's not that complicated.

Posted by: haha on December 10, 2007 at 7:54 PM | PERMALINK

Sometime, read what Eric Sterling has to say about the crack/powder sentencing disparity. He admits that the ratio "had its beginnings on my word processor." He now is spending a huge part of his life fighting to change it. It was a political reaction to a situation that was done without any hearings or evidence, based on a panic due to political considerations after the Len Bias death, where the Democrats needed to show themselves as "tough" on drugs as the Republicans, and needed something fast.

Sterling will tell you that the original intent, since it was a federal law, was simply to go after the major traffickers. It was never supposed to be used for street dealers and users - who would have figured that federal prosecutors would spend time on those cases? But it ended up becoming a way for federal prosecutors to score conviction points, and so suddenly all sorts of small-time crack offenders were being prosecuted in federal court, with huge sentences.

While the intent of the legislation was not racist, the outcome certainly has been one of extreme racial destruction and disenfranchisement. In 1986, just before the bill, the average drug sentence for blacks was 11% higher than for whites. Within four years, that increased to 49%. Although more whites use crack than blacks, the arrest and incarceration rates for crack offenses are significantly higher for blacks. This has other ramifications in public discourse -- in many southern states, 30% of black males have been disenfranchised from voting, yet their numbers are still counted for the purposes of representation in Congress.

Crack penalties today are not at all about the violence associated with crack -- that violence is more related to the drug war than the drug. It is about political opportunism at the expense of entire communities.

Posted by: Pete Guither on December 11, 2007 at 10:38 AM | PERMALINK

Drum:

"If I'm doing the math correctly, they approved a judge's reduction in a crack case from 100x the guideline for powder cocaine to only 80x."

You are not doing the math correctly because there is no 100x ratio in sentences. The 100x ratio is for the threshold amounts of powder cocaine vrs crack cocaine that trigger harsher sentences. But the ratio of sentences is not 100x.

Posted by: James B. Shearer on December 11, 2007 at 11:53 AM | PERMALINK
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