Sept. 28, 2007, 10:37PM
Obama promises to revamp U.S. drug sentencing laws
Candidate also vows to review racial inequities in justice system

By NEDRA PICKLER
Associated Press

WASHINGTON � Democrat Barack Obama said Friday that as president he would relax drug sentencing laws and address vast racial inequities in the justice system as part of his crime policy.

The Illinois senator said he would review mandatory minimum drug sentencing and give first-time, nonviolent drug offenders a chance to serve their sentence in drug rehabilitation programs instead of prison.

"If you're convicted of a crime involving drugs, of course you should be punished," Obama said in a speech at Howard University's opening convocation. "But let's not make the punishment for crack cocaine that much more severe than the punishment for powder cocaine when the real difference is where the people are using them or who is using them."

Actually, the reason for the difference in punishment in the Federal courts between crack cocaine and powder cocaine is not because blacks tend to use crack and whites powder, but because crack is far more addictive than powder cocaine. The effect of this distinction in the federal sentencing guidelines is to provide more protection for the black community than for the white.

Obama claims there are "vast racial inequities in the justice system," but provides no evidence this is so. This is a serious charge, and he should back it up with some serious evidence. I try to keep us with criminal justice stats, and I am unaware of any evidence that there are even a slight racial inequities in the American justice system.

There are some startling consequences for having higher punishments for crack v. powder cocaine. There is some evidence that, whether intentional or not, the policy results in substantial prison sentences for a significant number of black defendants. Similar nonblack defendants with powder get shorter sentences. That difference in sentencing is worthy of study.

In general, though, mandatory minimum sentences have come into disfavor. Not every case is worthy of the mandatory minimum, and a prosecutor and judge are left to twist the law to find an appropriate punishment.

Texas debated this issue during the last Legislative session when the Leg decided it was a good idea to impose a mandatory minimum sentence of 25 years for a several sex offenses involving child victims. The Leg backed off that approach, at least somewhat, when both prosecutors and defense attorneys objected to the withdrawal of discretion in sentencing.

Sentencing decisions are best handled by the application of specific facts within a range of punishment, leaving it to judges or juries to weigh and evaluate each case. To that extent, Texans should resist mandatory minimum sentences based on broad fact patterns.

I have no problem with the sentencing guidelines being more flexible, or giving crack heads a chance at rehab; in fact, I think that's a good idea. What I have a major problem with is Obama's insinuation that the reason for the greater severity for possession of crack over powder cocaine is that it is a way to punish blacks more than whites. That is not true; in fact, it is a dangerous, vicious lie.

I also think it is outrageous, and socially destructive, for a US Senator, and a candidate for president, to imply that the American criminal justice system is racist. That is a lie, and repeating it is harmful to our country.

Do the crime, do how much time?

The Supreme Court should find an equilibrium between judicial discretion and strict guidelines on criminal sentences.
October 8, 2007

Last week, the Supreme Court addressed an issue ripped from the headlines -- or at least the Op-Ed pages. Should the possession of crack cocaine lead to a significantly longer prison sentence than possession of the powder variety?

The 100-1 disparity in punishment for crack or powder cocaine is irrational, and it disproportionately affects African Americans; those are reasons enough to strike that disparity forthwith. But the court will be inviting another injustice if it rules that judges are free to disregard sentencing guidelines altogether because they disagree with their underlying rationale.

In the popular imagination, it's a judge who decides how many years in prison -- if any -- a convicted criminal will serve. In the federal courts, however, sentences are also shaped by Congress, which sets minimum and maximum penalties, and the U.S. Sentencing Commission, a body created by Congress in 1984 to reduce disparities in sentences imposed for the same crime. Some of those efforts have produced painful results. Many of the mandatory minimums, for instance, were driven by politics and have created unduly harsh sentences. The needfor guidelines of some sort, however, remains. Defendants convicted of similar offenses should receive comparable treatment.

The commission produces elaborate guidelines for sentences, based on a variety of factors. Originally the guidelines were mandatory (though in exceptional cases a judge could depart from them). But in 2005, the Supreme Court ruled that, because some of the factors in the guidelines leading to harsher punishment weren't submitted to juries, the guidelines should be treated as "advisory."

In June, the court seemed to give the guideline system a new lease on life when it ruled that appeals courts could presume that a sentence within the guidelines was reasonable. But what if a judge gives sentences outside the guidelines? Can the government successfully appeal on the grounds that the sentence is for that reason unreasonably lenient?

The high court heard two such cases last week, but most attention focused on that of Derrick Kimbrough, a Gulf War veteran arrested in a car in Norfolk, Va., with crack and powder cocaine and a gun. Sentencing guidelines called for 19 to 22 years in prison, but the judge -- who described the guidelines sentence as "ridiculous" -- gave Kimbrough a 15-year term instead. An appeals court said the lighter sentence was unreasonable.

If the Supreme Court rules that Kimbrough's sentence was appropriate, the pendulum will swing back in the direction of judicial discretion. That would be fine for those (including many federal judges) who long have denounced the guidelines as "cookie-cutter justice." But it would undermine Congress' original and laudable purpose in creating the Sentencing Commission: to ensure that neither a defendant's race nor the luck of the draw in being assigned to a particular judge makes the difference in how he or she is punished.

However the Supreme Court rules in the Kimbrough case, it should be careful not to invite wholesale subversion by judges of the guideline system. Meanwhile, the crack/powder disparity finally will be narrowed under new Sentencing Commission guidelines that will take effect on Nov. 1 unless Congress vetoes them. Having gotten itself, the commission and the courts into this mess, Congress should allow the improved guidelines to take effect without meddling.

A 17 year old def. complained to his P.O. that he was being punished far harder than his equally culpable co-def.s, who were just a few mos. younger than he. They were in the juvy system, and nothing much happened to them, while he was being packed off to bootcamp, and a long probation with lots of restrictions, etc, etc.

So I told the P.O. to explain to his probationer, that Texas uses the Reverse Lottery System of criminal justice. In a regular lottery, you pay a $1.00 for a ticket, and you have a 1: 1,000,000,000 chance of winning millions of bucks. Most lottery participants are losers, but someone always win. And the example of that winner keeps all the others buying tickets each week.

In the Texas Criminal Justice Reverse Lottery, you enter the lottery by committing a crime. Chances are you won't get caught, or if you are caught, you won't be prosecuted, or if you are prosecuted, you'll have your case dismissed or you'll get an acquittal, or you may get a very easy sentence to a lesser included crime. But every now and then, someone enters the Texas Criminal Justice Reverse Lottery, and they are the Big Time Loser. And its those Big Time Losers who encourage others not to enter the Texas Criminal Justice Reverse Lottery.

I told the P.O. to explain to his young probationer that he was The Big Time Loser, and while losing the lottery is a bummer for him, it has a lot of social utility for the rest of us, and hopefully this will cause him some degree of comfort.

The Criminal Justice Reverse Lottery is played out in all states and the federal system, but the differences in possible sentences is very extreme in Texas, and I am sure, in the other 3 states that have jury sentencing. That is just the nature of jury sentencing.

Terry, you are now officially labeled as a "Hard Liner Prosecutor". Is that like an eight liner prosecutor?

You've been immortalized for all time, or at least for the life of the blog, at:

http://gritsforbreakfast.blogspot.com/2007/10/reverse-lottery-theory-of-texas.html

Suffice it to say they don't like your analogy. That's the funny thing about complainers. They complain about everything but have no solution to crime or punishment. Their solution is let everybody out of jail, or at least most folks. Yeah, that'll make us all safe at night.



[This message was edited by Greg Gilleland on 10-12-07 at .]

[This message was edited by Greg Gilleland on 10-13-07 at .]

FYI, if anyone is interested:

As of Sept 25, 2007, there have been 405 executions in Texas since reinstatement of the death penalty in 1982.

Of those 405 executions, 197 were white
143 were African American
63 were Hispanic
2 were "other"

As of that same date, there were 26 executions for the current year. 12 white
8 African American
6 Hispanic

All of them, by the way, exited only

Doesn't in bother ANYBODY that the candidate proposing these more lenient laws is an admitted user of cocaine?

Which, heh-heh, would have put him in the lighter-weight punishment column he finds so unfair, as opposed to the one he is decrying so vehemently.

If banjos are outlawed, only Outlaws will have banjos.

Greg, in answer to your question about "hard liner prosecutors"--you're almost right. A "hard liner prosecutor" is a prosecutor who only prosecutes 8 liner cases. You have to work in a pretty big office to have a special "8-Liner Prosecution Unit," altho I hear Ft. Bend Co. is working on it. I, however, have never prosecuted a single 8 liner case.

I went to Mr. Grit's site on the link you gave, and was amazed by some of the comments. Apparently there are readers of that blog that think I should have done nothing to the 17 year old crook, just like the Co. Atty. did with the slightly younger juveniles. Instead, I sent him off to bootcamp, and gave him probation, which entailed a lot of restrictions on his "life style."

Its hard to believe that in this day in age, there are still people who think being lienent on crooks will solve our crime problem.

Its not like being lienent on crooks is a new idea. Its been tried multiple times, and it alway results in higher crime.

In 1980, Zimbabwe was granted formal independence from Britain. One of the 1st things Bob Mugabe, the new P.M. did, was release most of the crooks from the country's prisons, as part of a independence amnesty. By the time I went to work as a public prosecutor, in I think, April of 1981, most of those released, had been re-arrested on new charges.

Closer to home, we have the experience of trying the "being smart on crime," (the rather Orwellian term used by certain legislators to describe laws that weaken punishment for crime) and watching the crime rate rise, and "getting tough on crime," i.e. building more prisons, and seeing the crime rate fall.

Texas built no new prisons between 1965 and 1987. Starting in 1964, the state started experiencing a dramatic rise in crime, that went up almost every year until it reached its zenith in 1988. In 1964 the rate of Index crimes was 2,507 per 100,000 pop. By 1988 it was 8,018/100K pop. And then, the crime rate began dropping off. And it dropped almost every year since. By 2005, the crime rate was down to 4,857/100K pop., an almost 40% drop in the crime rate.

What happened? Texas began a great prison building boom, and went from 40,277 TDC beds in 1987 to 138,641 beds in 1997. Texas has not built any new prisons since then, but has expanded capacity. Today TDC has beds for about 150+K beds.

In short, the crime wave that began in 1964, was stopped in its tracks by building more prisons.

And this is not an anomoly. The British think tank, Civitas, did a study and found that the countries with the highest incarceration rate per crime committed in the E.U.--Spain and Ireland--have the lowest crime rate. The country with by far the lowest incarceration rate, Sweden, has by far the highest crime rate--over 13,000 Index crimes per 100K population!

For a very interesting article comparing the crime/incarceration rates in the UK and the US, go to Civitas

I don't know about you, Terry, but over my career as a prosecutor, I have seen a marked increase in senseless violent crimes committed by persons who have no violent criminal history.

Like all other Texas prosecutors, I want to help keep the public safe. And I know that if an offender is incarcerated, then the law abiding public is virtually guaranteed that this offender will not victimize the law abiding citizens of the State.

It is unfortunate, but understandable, that the crooks and their supporters don't like incarceration. But I'm not able to say that I'm sorry they disagree.

I'm all for re-habbing prisoners into law abiding and productive citizens who no longer contact the criminal justice system as offenders. Problem is, you can lead that horse to water...

RULES LOWER PRISON TERMS IN SENTENCES FOR CRACK

Crack cocaine offenders will receive shorter prison sentences under more lenient federal sentencing guidelines that went into effect yesterday.

The United States Sentencing Commission, a government panel that recommends appropriate federal prison terms, estimated that the new guidelines would reduce the federal prison population by 3,800 in 15 years.

The new guidelines will reduce the average sentence for crack cocaine possession to 8 years 10 months from 10 years 1 month. At a sentencing commission hearing in Washington on Nov. 13, members will consider whether to apply the guidelines retroactively to an estimated 19,500 crack cocaine offenders who were sentenced under the earlier, stricter guidelines.

The changes to the original 1987 guidelines could also add impetus to three bills in the Senate, one sponsored by a Democrat and two by Republicans, that would reduce or eliminate mandatory minimums for simple drug possession.

Department of Justice officials said yesterday that applying the new guidelines retroactively would erode federal drug enforcement efforts and undermine Congress�s role in creating sentencing policy.

The SCOTUS has loosened the crack/powder distinction simply by allowing the trial judge to work outside the federal sentencing guidelines when choosing a sentence. For the opinion, click here.

Justice Thomas has the best opinion, albeit in dissent:

As a result of the Court�s remedial approach, we are now called upon to decide a multiplicity of questions that have no discernibly legal answers. Last Term, in Rita v. United States, 551 U. S. __ (2007), the Court held that a Court of Appeals may treat sentences within the properly calculated Guidelines range as presumptively reasonable.

Today, in Gall v. United States, ante, p. __, the Court holds that a Court of Appeals may not require sentences that deviate substantially from the Guidelines range to be justified by extraordinary circumstances. And here the
Court holds that sentencing courts are free to reject the Sentencing Guidelines� 100-to-1 crack-to-powder ratio.

These outcomes may be perfectly reasonable as a matter of policy, but they have no basis in law. Congress did not mandate a reasonableness standard of appellate review� that was a standard the remedial majority in Booker fashioned out of whole cloth. See 543 U. S., at 307�312 (SCALIA, J., dissenting in part). The Court must now give
content to that standard, but in so doing it does not and cannot rely on any statutory language or congressional intent.