Retroactivity for Crack Cocaine Offenders: NBC News

Brian Williams had a scare piece on NBC Nightly News last night about the current ‘debate’ at the U.S. Sentencing Commission regarding making the new Federal Sentencing Guidelines for crack cocaine retroactive. (Apologies: the only link I could find to the piece forces you to watch a 15 to 30 second commercial first.)

Williams starts off with:

We learned today that thousands of serious drug offenders who are right now in federal prisons could soon be returned to the streets despite serious objections by the U.S. Justice Department.

Sounds bad – downright scary doesn’t it? But maybe they are serious drug offenders because they received outrageously long sentences along the lines of the 100 to 1 ratio for crack vs. powder cocaine in the first place. The report acknowledged that the Sentencing Commission saw this as

…a way to reduce the wide disparity that produces harsher sentences for crack offenders, over 80% of whom are black, than for powder cocaine offenders…

NBC mentions that there is a ‘disparity’ but doesn’t mention the actual ratio. Time for some more scare tactics:

…but so many would be out in such a short period of time that the Justice Department warns it could drive up violent crime.

Who can NBC find to back this claim? Let’s try Deborah Rhodes, U.S. Attorney for the Southern District of Alabama, whose previous claim to fame was being touted by Kyle Sampson as a possible replacement for Carol Lam, one of the U.S. Attorneys targeted by Karl Rove/Alberto Gonzales/Harriet Myers.

What is Ms. Rhodes take on the subject?

“Crack defendants as a whole generally have a higher criminal history and a greater use of guns and violence in the manner that they distribute their cocaine.”

Than whom? Than powder cocaine defendants? Got any stats to back that up? And why not just convict and sentence them for their violent acts?

Certainly not a higher level of violence than, say, murderers. Or anyone convicted of a violent crime (who presumable have a 100% use of violence associated with their offense). 

…supporters of the plan, including many federal judges, say it would simply make retroactive a change the commission made two weeks ago for sentencing future federal drug offenders.

NBC puts on Marc Mauer, executive director of the Sentencing Project, and we finally get a dose of common sense:

“It’s difficult to explain to anyone why somebody convicted a month ago should have a stiffer sentence than somebody convicted today of exactly the same offense.”

I don’t know that it’s difficult to explain. But then again, absurdity, arbitrariness and capriciousness are accurate but not good explanations.

The piece mentions that ‘many of those getting out will have served ten to fifteen years’ and that they will be getting an average reduction of 27 months from their sentence. How about some talk about the economics of the situation?

An extremely low estimate, of $25,000 per year per federal inmate, would result in a cost savings to the public of over a billion dollars. That would have been worth throwing in the report.

And how about comparing their 10-15 year sentences with the average federal sentence for murder? (19 years.)  Think more folks dragged down by the law of parties and the law of ‘conspiracy’ were ‘on average’ more violent than all those murderers? Seems unlikely.

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Michael - November 13, 2007 3:14 PM

Very nice analysis. Keep up the good work.

Williams's puff piece reminds me of Michael Tigar in my criminal law course, reminding an imaginary jury in class one day that it cannot say they have seen his hand until they have seen both sides.

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