Senate Committee to Hold Crack-Powder Cocaine Hearing Wednesday

The Senate Judiciary Committee will hold a hearing Wednesday on the disparity of the crack/powder cocaine sentencing laws. You will be able to watch it live, online. Sentencing Law and Policy has more here.

The witnesses include Miami Police Chief John Timoney, who will be arguing the stiffer penalties for crack are unjust.

In the "personal story" segment, Cedric Parker will be testifying for FAMM about his sister and the impact of unjust federal crack cocaine sentences on their family.

The Sentencing Project's Marc Mauer has provided written testimony to the committee.

Former drug czar Asa Hutchinson will also testify. Hutchinson was Administrator of the DEA under former President George W. Bush. He too believes the disparity is unfair. He and J.C. Watts wrote this op-ed in the Washington Times.

U.S. District Court Judge Reggie Walton will testify. Here's his testimony (pdf)from 2007 urging that the two level decrease Congress implemented be made retroactive.

Another witness: U.S. Sentencing Commission Acting Chair Richard Hinojosa. He too believes the disparity is unfair. Here is his testimony (pdf) in 2008 before a House Judiciary Committee subcommittee urging that the disparity be 20:1 instead of 100:1.

The remaining witness is Assistant AG Lanny Breuer. Since Obama has called for an end to the disparity, I assume the DOJ witness he's sending will as well.

Once Congress decides to end the disparity, there are still lots of decisions to make. Will they end it entirely, or make it 20:1 or some other random number?

What about the 20,000 already doing doing time for crack under the unfair 100:1 ratio?

The leading bill, and one that progressive groups are pushing, is H.R. 265, introduced by Sheila Jackson Lee. It's just a re-introduction of last year's Joe Biden crime bill that I objected to here and here. It specifically says the reductions are not retroactive.

The amendments made by this Act shall apply to any offense committed on or after 180 days after the date of enactment of this Act. There shall be no retroactive application of any portion of this Act.

It provides for a host of "aggravating factors" to increase sentencing guidelines in drug cases. And the bill is loaded with pork for more DEA agents and prosecutors. It's totally a Biden-type bill.


(a) Authorization of Appropriations for Department of Justice- There is authorized to be appropriated to the Department of Justice not more than $36,000,000 for each of the fiscal years 2009 and 2010 for the prosecution of high-level drug offenses, of which--

(1) $15,000,000 is for salaries and expenses of the Drug Enforcement Administration;

(2) $15,000,000 is for salaries and expenses for the Offices of United States Attorneys;

(3) $4,000,000 each year is for salaries and expenses for the Criminal Division; and

(4) $2,000,000 is for salaries and expenses for the Office of the Attorney General for the management of such prosecutions.

(b) Authorization of Appropriations for Department of Treasury- There is authorized to be appropriated to the Department of the Treasury for salaries and expenses of the Financial Crime Enforcement Network (FINCEN) not more than $10,000,000 for each of fiscal years 2009 and 2010 in support of the prosecution of high-level drug offenses.

[c] Authorization of Appropriations for Department of Homeland Security- There is authorized to be appropriated for the Department of Homeland Security not more than $10,000,000 for each of fiscal years 2009 and 2010 for salaries and expenses in support of the prosecution of high-level drug offenses.

(d) Additional Funds- Amounts authorized to be appropriated under this section shall be in addition to amounts otherwise available for, or in support of, the prosecution of high-level drug offenses.

We need a bill like H.R. 460 (introduced in 2007) that says one thing and one thing only: The penalty for crack cocaine is the same as that currently provided for powder. And those already in prison need relief from the unfairly disparate sentences.

So, while I'm glad to see Congress will be taking some action, I'm not jumping for joy because I don't like the inadequate relief being proposed as a solution. And I think groups like the ACLU, FAMM and the Sentencing Project should be lobbying for a bill that proposes only a fix for the disparity....not one that ratchets up penalties in other ways and pours huge sums of money into our woe-begone war on drugs.

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    I agree (none / 0) (#1)
    by Bemused on Wed Apr 29, 2009 at 07:28:40 AM EST
     to the extent that cocaine powder and crack should be treated the same, and I also agree with what I will assume to be your position that penalty ranges  across the board under the CSA should be decreased.

      I strongly disagree though with the position that aggravating and mitigating factors should not be incorporated into a rational penal scheme. Application of such factors should not be (and wouldn't be following Booker) rigidly applied to require specific increases or decrease from base offense levels in all cases but indiviualized sentencing demands consideration of all relevant factors.

      In the absence of consideration of aggravating and mitigating factors we would have the type and quantity of the drug control the sentence.  Courts need to distinguish between circumstances where person A attributed x grams of substance y deserves a longer or shorter sentence than person B attributed the same amount of the same drug.

      Where the court believes the identified factors do not provide a just punishment in a particular case it can impose a variance sentence based on the § 3553(a) factors.

      One might disagree with the specific  factors included or omitted as aggravating and mitigating factors but it is difficult to fathom any reason whatsoever why courts should not be directed to account for circumstances supporting greater or lesser punishment for people accused of the violating the same statute and attributed the same amount of the same drug.

    I didn't say there shouldn't be any (none / 0) (#2)
    by Jeralyn on Wed Apr 29, 2009 at 10:33:06 AM EST
    aggravating or mitigating factors. I have long argued that the current system of sentencing by weight of the drug involved should be replaced with a system that sentences according to dangerousness.

    My objections are primarily based on the funds being thrown at law enforcement to step up the war on drugs and that it prevents the changes from being applied to those in prison.

    If disparity is the problem, let's just have a law that equalizes the penalty, period.

    Please don't reprint laws (especially in bold type) in comments. It uses up a lot of bandwidth and is jarring to look at. I deleted your comment that reprinted the aggravating and mitigating factors. They are linked to in my post where anyone can read them. Thanks.


    well, at least (none / 0) (#3)
    by Bemused on Wed Apr 29, 2009 at 11:29:47 AM EST
     answer my question then.

      which aggravating or mitigating factors in Biden's bill meet with your disapproval and why? Also, what factors not referenced do you think should be considered.

      clearly, you say the directive for the sentencing commission to review and amend  the guidelines if necessary to incorporate those factors is objectionable to you. D

     Deleting   the factors referenced in the bill so people won't see them conveniently in this thread and have to search through a lengthy bill to find them is up to you, but you should still be able to answetr a simple question.

    J probably won't answer your Q. (none / 0) (#4)
    by sarcastic unnamed one on Wed Apr 29, 2009 at 12:42:17 PM EST
    But I think I might have a broadly applicable test to determine which factors she would approve or disapprove of.

    If they may be aggravating she disagrees with them, if they may be mitigating then she agrees with them.


    Well--that is farily sarcastic! (none / 0) (#5)
    by oculus on Wed Apr 29, 2009 at 12:48:19 PM EST
    Not meant to be. Really. (none / 0) (#6)
    by sarcastic unnamed one on Wed Apr 29, 2009 at 01:09:36 PM EST
    From what I've seen, over the years, she comes at every law-related question purely from a defense council perspective.

    I may have oversimplified her position here, but from what I've seen her agenda is quite simple and compellingly pure.

    That's admirable to me, even if I do disagree with many of her conclusions.


    I don't find that admirable (none / 0) (#7)
    by Bemused on Wed Apr 29, 2009 at 02:47:04 PM EST
      I find it maddeningly  simplistic.

     Defense lawyers are far  more credible marshalling facts and making arguments as to why aggravating factors should not be applied or given little weight and mitigating ones should be applied and given heavy weight in a particular case. A suggestion that there is something "wrong" with aggravating and factors is, if you think about it an argument that courts should consider nothing but the code cite of the  statutory offense and give every person who violates that staute the same sentence without any regard for any other factor good or bad.

      It also makes no sense to suggest that only mitigating factors should be considered. that would result in the "middle of the road" offenders with no particular facts to offer in mitigation getting the same sentence as people with far more serious criminal backgrounds. far greater involvement in and control over the offense conduct and not infrequently violent or obstructive acts associated with the offernse. that's not "pure," that's just wrongheaded.

      She may not thave thought through her post, but suggesting a reason for opposition is  the fact it contains a list of aggravating factors that the sentencing commission would be directed to consider incorporating into the guidelines (or more accurately amend to to provide more gradations for factors already present in the guideline calculus to factors already incorporated) makes little or no sense from any pespective.

      One might possibly disagree with certain identified factors or believe some specific unidentified factors should be expressly included, but just tossing off a suggestion  a bill is bad because of a list of aggravating and mitigating factors for the commission to consider is included makes little or no sense.

    Maybe I should have kept my big mouth shut. (none / 0) (#8)
    by sarcastic unnamed one on Wed Apr 29, 2009 at 03:01:45 PM EST
    not at all (none / 0) (#9)
    by Jeralyn on Wed Apr 29, 2009 at 03:29:09 PM EST
    You are welcome to keep talking, don't be intimidated by Bemused. And no, I don't intend to get into a debate with him. My writings on this topic over the past seven years here and in a national print publication for eight years before that are quite voluminous and clear.

    Thanks J,. (none / 0) (#10)
    by sarcastic unnamed one on Wed Apr 29, 2009 at 04:25:26 PM EST
    my concern was that I shouldn't have spoken for you.

    then it should be easy enough (none / 0) (#11)
    by Bemused on Thu Apr 30, 2009 at 07:44:01 AM EST
     for you to succinctly summarize what you find objectionable about a congressional directive for the sentencing commission to refine the application of aggravating and mitigating factors in the guidelines.

      Sometimes, it might be better to address a question head on rather than dissembling.