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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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- But you've characterized this as a constitutional violation, which from a legal point of view is hardly an easy position to justify, inasmuch as no court has ever accepted it. This is not a "disparate treatment" claim, in which black criminal defendants are treated differently than white ones; this is a "differential effects" problem, in which--lacking proof of discriminatory intent--a fourteenth amendment claim (or a derivative claim under the non-existent equal protection clause of the fifth amendment) has been held to fail throughout your lifetime. See Washington v. Davis, 426 US 229 (1976). The history of this problem is accordingly the history of attempts to get a legislative solution to a problem of legislative misperception. You either needed to justify your constitutional conclusion, or abandon it.
| | | Section II - The Forces of "Progress" | |
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> | | | | 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.
Subsection II(a) Judicial Discretion | | |
Section III - Opposition: Political Actors and Public Fear | |
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> | | | | 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). | >
> | 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.
- Maybe, but giving retroactive effect to constitutional remedies where the consequence is large-scale jail delivery, even where the constitutional wrong has been adjudicated, has been optional since long before you were born. See Linkletter v. Walker, 381 US 618 (1965); Stone v. Powell, 428 US 465 (1976). So this argument is just rhetoric, not law.
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).
- NO. On this evidence, Mukasey is not ignoring anything. He says 1,600 out of almost 20,000 would be eligible to apply for release immediately. That's not self-evidently false and is probably true. He says reviewing judges would have little legal ground not to release such applicants, and that their probability of future dangerousness could certainly not be used to hold them. Once again, that's not obviously false and is probably true. Your criticism is untenable.
Conclusion | | | | |
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> | 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. | | | | |
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- Assuming that the sentences handed out for crack cocaine distribution are irrationally disproportionate, how did you manage to conclude that they are therefore cruel and unusual punishment? See Solem v. Helm, 463 US 277 (1983).
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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.
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable.
To restrict access to your paper simply delete the "#" on the next line: | >
> | 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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- This isn't the conclusion one expects. The essay itself levies any number of constitutional claims that--as I have indicated--were not carefully edited for legal accuracy and are not sustainable in their current form. So have we here claims about fairness and equity that, rather than being law, are reduced to rhetorical tools at the essayist's disposal?
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