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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. |
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< | Paper Title - Topic: How Holmes' discussion of the distinction between what the law is and what is does plays out in the sentencing laws on crack-cocaine. |
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> | Paper Title - Topic: The Forces that Drive Crack-Cocaine Sentencing Reform |
| | -- By CarinaWallance - 09 Feb 2008 |
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> | Who gets punished and how severely is not the product of an objective standard and application of criminal justice. Rather, it is a function of subjective judgments and interests that render the criminal justice system incapable of achieving its stated purpose. Crack-cocaine sentencing minimums are a form of cruel and unusual punishment that pervade our criminal justice system. Absent from the recent controversy over how to address the sentencing guidelines is a focus on the guidelines’ underlying injustice and racial discrimination. Instead, the development of crack-cocaine sentencing is driven by social forces – largely in the form of political actors and public fears. |
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< | Section I - What the sentencing on crack-cocaine is and what it does |
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> | Section I - Crack-cocaine sentencing: What the law does
Federal crack-cocaine mandatory minimum sentencing laws have denied equal protection and due process to black defendants since their enactment over 20 years ago. While crack-cocaine and powder cocaine are chemically identical and cause similar physical reactions, the sentences for possession and intent to distribute are disturbingly different. Under federal law, a conviction for selling 5 grams of crack-cocaine is subject to the same five-year mandatory minimum sentence as a conviction for selling 500 grams of powder cocaine. Put another way, it takes 100 times more powder cocaine than crack-cocaine to trigger the same mandatory minimum penalty. |
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< | Subsection A - Holmes, What the law is v. what the law does |
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> | While drug use rates are similar among racial groups (two-thirds of crack cocaine users in the U.S. are white or Hispanic), four of every five crack-cocaine defendants are black. In contrast, most powder cocaine convictions involve whites or Hispanics (USSC, Report to Congress: Cocaine and Federal Sentencing Policy (May 2007) 3). Thus, even though the offense characteristics of crack-cocaine violations are comparable to those of powder cocaine violations, by virtue of the 100-1 ratio, black defendants receive vastly harsher sentences. |
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< | (class notes)
‘If you want to know the law and nothing else – you have to adapt the position of a bad man’ (5)
To understand the law in itself as a subject in isolation out of context
This is entrance to legal realism – if you want to know what law is you have to know what it does not what it says
This is pragmatism: notion ideas are what they do in the world not what they call themselves
But often this is confused in proposition that separation of law and morality
Holmes: description of morality and there is what the law does
Realistically – Holmes would say – in order to know what the law is you have to know what you can really do – on this level movement for abortion rights in the US is a bust
Holmes: moral language doesn’t do much good, you want to know what is actually going to happen – bad man needs that kind of information
There is surely law that is not in the books that you need to know – how things work
But in principle law is the prediction about the application of public force |
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> | Section II - The Forces of "Progress"
On Tuesday, the Senate Democrats rejected Attorney General Michael Mukasey’s request to block the U.S. Sentencing Commission’s amendment that retroactively granted eligibility for reduced sentences to people already convicted of crack-cocaine offenses. While this is an important step, the reductions are only minor and follow over 10 years of repeated Congressional refusal to accede to the Commission’s requests to reduce the quantity disparity between the two forms of cocaine. The Commission’s proposed amendment only marginally reduces average crack-cocaine sentences by about one-quarter, resulting in sentences that are still 2 to 5 times longer than those triggered by the equivalent amount of powder cocaine. |
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< | Subsub 1 |
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> | Subsection II(a) Judicial Discretion
The current momentum towards sentencing reform stems in large part from an effort to preserve judicial discretion and to relieve the overburdened prison systems. Recent Supreme Court decisions, namely the crack-cocaine case Kimbrough v. United States, have restored federal judges to their central role in criminal sentencing by granting them the discretion to impose what they determine to be reasonable sentences, even when doing so departs with the sentencing guidelines. The central objective of these developments is to strip government prosecutors of the expansive power they maintain under mandatory sentencing policies and return the judge to his role as the distributor of justice. While affirmation of judicial discretion generally represents a move towards more equitable sentencing terms, it is the power-struggle between judges and prosecutors for the courtroom, and not the undue and racially discriminatory effects of the sentencing guidelines that ultimately drive this process. |
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> | Subsection II(b) Prison Costs and Population
Similarly, the enactment of the Commission’s proposed amendment is in large part a response to the unmanageable costs and overcrowding of prisons that plague the American government. The prison population in the United States exceeds 2 million and continues to grow at one of the world’s fastest rates. Drug offenders account for over half of the federal prison population. Retroactive enactment of the Commission’s proposed amendment would make 19,500 crack cocaine offenders eligible for reduced sentences. |
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< | Subsection B - As applied to Crack-cocaine sentencing |
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< | Subsub 1 - Law: equal protection and due process |
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> | Section III - Opposition: Political Actors and Public Fear
On the other side, public fear and misinformation, fed by the media and political officials, have impeded the development of substantive sentencing reform. Mukasey, speaking before the House Judiciary Committee last week, sought to capitalize on this fear by gravely overestimating and mischaracterizing the consequences of retroactively limiting prison terms. While apparently willing to permit reduction of federal prison terms for first time, nonviolent offenders, Mukasey uses alarmist and misleading rhetoric to argue that the Commission’s amendments should be blocked since they will fill our communities with violent gang members and clog up the courts. “Unless Congress acts by the March 3 deadlines, nearly 1,600 convicted crack dealers, many of them violent gang members, will be eligible for immediate release into communities nationwide,” Mukasey warned. |
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> | According to this “logic,” after years of implementing racially discriminatory policy in the sentencing penalties, now the criminal justice system is incapable of properly responding to the grave injustice that it has created. Mukasey ignores the fact that under the guidelines eligible inmates would have their petitions for release heard by a federal judge who would evaluate their ability to reenter society. Furthermore, the total impact is expected to occur incrementally over the course of 30 years due to the limited nature of the amendment. (USSC, Press Release, December 11, 2007). |
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< | Subsub 2 - What it does: racial discrimination in 100-to-1 rule
Crack-cocaine law v. cocaine laws
Section II Where we are
Subsection A - Mukasey's position before the House Judiciary Committee
Subsection B - As compared to what the sentencing commission's plan actually is |
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> | Conclusion -
The pursuit of justice and equality form, at best, the distant backdrop of the development of crack-cocaine sentencing reform – one on which the proponents of reform can conveniently draw to advance their more immediate concerns. Recent changes do represent progress – albeit minimal – in alleviating the cruel and unusual punishment for crack-cocaine offenses. However, the determinative role played by social and political forces suggests that fairness and equity constitute not the unshakable foundation of the criminal justice system, but merely ideals that can be reduced to rhetorical tools at the players’ disposal. |
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