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Durbin takes on cocaine sentencing disparity

Washington Post:

The Senate’s second-ranking Democrat introduced a bill Thursday that would eliminate the sentencing disparity between crack and powdered cocaine, an issue that has frustrated judges, civil rights advocates and drug reform proponents for more than two decades. […]

Some law enforcement officials have advocated eliminating the disparity by increasing the penalties for possession of powder cocaine, rather than, as Durbin’s bill does, reducing the sentence for crack.

But those calling for a change in the law also cite economic reasons at a time when budgets are tight, noting that half of all federal inmates are imprisoned for drug offenses.

Good for my senator Durbin. I just wonder what’s taken so long for it to get to this level. Sentencing commission, Obama, and everyone else (except certain law enforcement and prison lobbying groups, of course), have called for this final step in ending the disparity.

Remember, this is part 2 of the sentencing reform. In January, 2008, there was a small amount of crack cocaine sentencing reform that involved the early release of some of the longest sentences for crack cocaine.

At the time…

Speaking before the U.S. Conference of Mayors, Attorney General Michael B. Mukasey said that “a sudden influx of criminals from federal prison into your communities could lead to a surge in new victims as a tragic, but predictable, result.”

A year later, I noted that the fear card was toothless.

Fear Card

You can bet that the fear card will be played again to try to derail the Durbin bill (and its companion in the House).

But perhaps people are starting to realize that the fear card has been maxed out.

James Pasco, executive director of the Fraternal Order of Police in Washington, said Thursday he was still digesting the Durbin bill. In the past, his members had taken the position that “the best way to eliminate the disparity would be to raise the penalties for powder to those of crack.” But Pasco said his organization had developed a good relationship with the Judiciary Committee and that he would “look forward to the process” in Congress.

That’s a new one.

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10 comments to Durbin takes on cocaine sentencing disparity

  • It drives me nuts that law enforcement is allowed to take positions on issues like this (1st Amendment has limits) and that they openly DO take positions on issues like this. What business is it of the police what the sentencing laws are? Who the hell are they to advocate for longer sentences? Their job is to arrest people when there is probable cause that a law is broken. They have NO legitimate interest in what happens after the suspect is charged and moves into the court system. I find it offensive to justice. It’s not even right for PROSECUTORS to advocate tougher punishments just for the sake of tougher punishments. For police to do it, it’s downright absurd. And they are allowed to do it, and worse yet, they’re taken seriously!

  • paul

    I don’t see anything wrong with the police voicing an opinion on the subject. Unlike the UK, the police in America are clearly not in charge of policy. In the UK, I’m not so sure. I think the MPs should try to pass a law the police don’t like and see if they actually obey it.

    Anyway, as soon as I saw the headline to this thread, I thought,”Well, the easiest thing would be to INCREASE the penalties for powder cocaine–path of least resistance and all,” but I read further and saw that law enforcement had already figured that one out years ago. Maybe if you spend your life hurting other people and stuffing them into tiny cages it doesn’t seem like such a bad thing after awhile. People can get used to anything.

    Given how desensitized to punishment law enforcement and some members of the public have become, it comes as some surprise they haven’t suggested adopting the methods of other countries that enjoy punishment and Effective methods of law enforcement.

    Take Thailand, for example. A few years back, prime minister Thaksin, the harmless, grandfatherly guy hiding out in the UK right now, gave the police the green light to kill as many drug users as they could. Just kick down the door, haul you out into the front yard, and shoot you in front of your children. Extra-legal even by Thai standards of “justice”, but certainly Effective.

    Why haven’t our guys thought of that yet? Where’s the American can-do spirit? We’ve thrown out the Bill of Rights, and every 2-bit federal agency and small town has its own SWAT team…so you gotta wonder why they haven’t quite taken the final step.

    Could it be that times are changing, and we’ve reached the high water mark?

  • paul: the only reason they don’t do that is because they know that a lot of themselves and their own family members use drugs, so they wouldn’t want to risk an extra-judicial execution. Harsh judicial punishment is fine – they can weasel themselves and their own loved ones out of trouble. But if they gave the police the ability to execute drug users on sight, their loved ones (and themselves) would likely get railroaded and screwed like the ‘normal’ people they don’t give two shits about.

    US lawmakers will never adopt any system that would put their own drug use or the drug users amongst their family and close friends at unfixable risk. Worst case scenario is they need to be able to get probation for doing something that will cause Shaniqua Q. Public-Black to get 20 years in prison (you know, for the children).

  • DdC

    Who does powdered cocaine? Anti drug Ad Agencies and suits dissipating booze at power lunches. Lobbyists not wanting the sharp edge of speed. Crack dealers. Last time I heard of it recreationally was Disco. Maybe Hollywood and the Fashionistas? What about the LSD disparity, weighing the paper? Citizens doing large time over Chinatown rice paper. Or the poor schmucks doing time for hemp.

    Thailand is a US puppet, from slave labor using drug bust prisoners to the School of Assassins training their thugs. Financial aid, grants to fight the war on drugs. Souder whispering sweet nothings…

    US PRAISES THAI DRUG WAR!
    From February of 2003, to 100 days later, June 2003, Thai police executed over 4,000 Thais, jailing 60,000, in a bid to meet targets set by the Thai Prime Minister to ‘complertely end all illegal drug use by whatever means necessary’. A senior US drug official yesterday hailed Thailand’s war against drugs as a success. The US Drug War Creates Mass Death of the Akha (Thailand) From Disease and Starvation. Death Rate As High as 20% in Some Villages. Forced Relocations, No Land, No Food, No Jobs. Data Supported by Independent International Reports.

    May 16, 1997
    Representative Mark E. Souder R-4th, reported he made two trips last year — one overseas and one to Florida — that he did not pay for. The U.S.-Thailand Business Council paid the bill for a 16-day trip to Thailand last fall.

  • Weighing the “adulterants and dilutants” is one of the most unfair and idiotic aspects of drug prohibition (and that says a lot). Considering that the purest forms of the drug are always and only in the hands of the people who make them, and they get more and more diluted/adulterated as the drugs go down the chain from dealer to dealer to the ultimate end-user, it punishes the users more than the makers.

    To take this idiocy to the extreme, if I have a ounce of pure cocaine, I get punished for an ounce of cocaine. But if I put that gram of cocaine into an Olympic-size swimming pool and mix it up in the water, I have 5,511,556 pounds of cocaine (plus the original ounce). When sentencing guidelines get involved, over 5 and a half million pounds of cocaine is quite a score for the government and quite a lengthy sentence for the poor defendant who becomes one more casualty of drug injustice. I’m sure there’s been a real case of someone dumping his small little baggie of coke/heroin into a pool to dispose of it and the DA charges the poor guy with the entire weight of the water (and chlorine, urine, leaves, dirt, etcetera in the pool – adulterants and dilutants). There’s no requirement that the included adulterants and dilutants were intended to adulterate and/or dilute the controlled substance in question.

    It’s not only street drugs that get diluted. Even when they know a 5mg vicodin pill has exactly 5mg of hydrocodone, the controlled substance, they weigh the pills (do extra work!) and include the weight of the 500mg acetaminophen and all the binders and fillers, none of which are controlled substances. In some states like florida, the weight of the binders, fillers, and non-controlled ingredients like the APAP make possession of just a dozen or so vicodin pills “per se drug trafficking” which means huge 20+ year automatic minimum sentences.

    How any prosecutor could live with themselves at ruining someones life for that length of time and wasting so much of the taxpayers’ money to keep someone pointlessly incarcerated for such a long time boggles my mind. They must be sociopaths (in my experience as a defense lawyer, anyone who stays with the prosecutor’s office and succeeds there for a period of approx 5 years actually does become a sociopath, by definition).

  • aussidawg

    “In some states like florida, the weight of the binders, fillers, and non-controlled ingredients like the APAP make possession of just a dozen or so vicodin pills “per se drug trafficking” which means huge 20+ year automatic minimum sentences.”

    You are absolutely correct. Have you ever heard of Richard Paey? He is the chronic pain patient who is serving 25 years in a Florida prison for possession with intent to distribute Percocet. The medication was prescribed to him, and even though the DEA surveiled him for approximately three months and saw absolutely no evidence of dealing, he was charged with such. Now, as he serves his sentence in a wheelchair (he suffers multiple sclorosis and degenerative disk disease) he is fitted with a prison provided morphine pump which delivers more opiate medication to his system than what the prescibed meds. he was busted with did.

    Good ol Merkin justice.

  • aussidawg

    Lol…sorry! I got so caried away I neglected to make my point. The weight of the acetimenophen and the binders were included in the weight of the drugs confiscated in order to make the quantity sufficient to charge possession w/ intent to distribute.

  • Paey is precisely why I specifically mentioned Florida. Some other states also have “conclusive presumption of drug trafficking based on quantity” rules, but I know Florida does b/c of Paey – a classic travesty of justice due to drug warriors gone mad.

    I think such a rule is unconstitutional and beyond the powers of the legislature. For several reasons based on federal constitutional law, I don’t believe legislatures have the power to, for example, say that the crime of murder is (a) the intentional killing of another human being with malice aforethought or (b) changing lanes without signaling. That’s what these conclusive, irrebuttable presumption of trafficking laws based on quantity do. The dictionary, commonly understood definition of “trafficking” involves, at the very least, a component of mass distribution for profit. Simple possession, regardless of quantity, is no more “trafficking” than changing lanes without using your blinker is “murder” and the legislature doesn’t have the power to say it is. It violates basic notions of due process – both substantive and procedural. If the prosecution can’t find the evidence to prove beyond a reasonable doubt that someone is a “drug trafficker” then they can’t get a law passed to let them do it without the evidence. Again, it is unconstitutional. Unfortunately Paey’s lawyers never raised these arguments about constitutionality, last time I looked. Of course, as I’m the first to say, there is a “Drug Exception” to the US Constitution so those arguments probably wouldn’t have gone anywhere. I still think lawyers should force courts into relying on the Drug Exception to uphold criminal convictions (or “civil” punishments, which we see more and more of, an exception to the Constitution in and of itself). Force them to both flaunt their hatred and disrespect of the Constitution and to violate their sworn duty and oath of office to protect and defend the Constitution… even if it means you lose the case.

  • aussidawg

    If I’m not mistaken, eve the judge presiding over this case felt the sentence was excessive but was unable to do anything because of mandatory sentencing laws. Further, apparently, Paey was offered parole in exchange for a plea of guilty, which he refused on principle.

    As a chronic pain patient who fears this very thing every day, I have the utmost respect for Mr. Paey who IMHO took the morally correct high road and stuck to his innocence. As far as the presiding judge is concerned, perhaps one day his anger at the injustice of this case will prompt him to rally against the system he is presently a part of. Who knows, one day soon, maybe he will join his ex-drug war comrades and become a member of a reform group such as L.E.A.P. One can only hope!

  • The judge could have ruled that Paey’s sentence and/or conviction was unconstitutional on many different grounds. Like most judges (all of whom are ex-prosecutors), he was too much of a coward, and too afraid of being reversed to do the right thing. Yeah, he probably would have been reversed, but at least do the right thing and make the state take the time and effort to appeal it, and make some other judge decide this guy’s life must be destroyed.