THE PLANK APRIL 18, 2008
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It's hard to pay attention to policy when pins and sniper bullets are
whizzing by us, but it's worth pretending as long as the candidates are also willing.
To wit: Hillary Clinton gave a major
policy speech on crime in Philadelphia
one week ago. In it, she notably reversed
an earlier stance on the sentencing disparity regarding cocaine-related drug
crimes. She said she would favor scrapping the mandatory minimums for small
amounts of crack cocaine, bringing the punishment for mainly-black crack users
in line with that of predominantly white users of powder cocaine. This is an
important distinction; the sentencing disparity has filled jails with
first-time nonviolent offenders posing a low-level threat to society--which
only escalates the longer they are segregated from it.
Clinton's
views on sentencing retroactivity, for the tens of thousands who have been locked up
under the current cocaine guidelines, are of equal importance. Commuting
prisoner sentences to terms they would have served under the new law is, of
course, the right thing to do. But in Iowa, Clinton
told viewers of the Black/Brown debate: “In principle I have problems
with retroactivity," she said. "It’s something a lot of communities
will be concerned about as well." Which communities? Why?
The drug wars, addressed intelligently on our site by former Baltimore
Mayor Kurt Schmoke, are not a by-the-wayside policy issue on which Clinton can smudge her former
stances without scrutiny. What's more, this anti-crime gambit looks to be an
attempt to reverse a monthslong pattern of tacking
rightward on criminal justice policy (back when Clinton still had a "general election
strategy"). In New
Hampshire, for example, Clinton
tweaked Barack Obama for his liberal stance on
“criminal defendants' rights” and his “extremely progressive record” in Chicago. Who knows to
what that refers.
By the Philly address--never having answered that important question
on
retroactivity--Clinton was putting $1 billion up for grabs among states
that
want to commit resources to lowering rates of recidivism. But being
unjustly punished and backsliding into
crime are not totally unrelated issues; longer jail
terms erode workplace skills, fossilize social attitudes and drain
meaningful
support systems--all of which are critical to the well-being of a
sucessful
parolee. That she would pay for her ambitious $4 billion plan by
identifying
"unnecessary and outdated corporate subsidies for elimination" (rather
than housing and processing costs for thousands of crack offenders)
only spotlights the blinders that make real reform in government seem
like make-believe.
--Dayo Olopade
8 comments
Ok, I was baffled then and continue to be baffled on what principle [never mind what communities] she bases her opposition to retroactivity for sentencing reform. The only principle I can see to sentencing reform is to make something fair that isn't fair, and if we change a sentence because it's unfair, then why should everyone already unfairly sentenced under the old law stick out their unfair sentence?
I'm thinking first and foremost of Genarlow Wilson, who would still be in jail if the Supreme Court of Georgia hadn't decided to let him out under "cruel and unusual" grounds. He was sentenced under a law that was later changed to make the offense a misdemeanor instead of a felony [and it should have just been changed to "legal" but whatever], and he was going to have to do his whole ten years because the sentence reform wasn't retroactive. WHAT IS UP WITH THIS NO-RETROACTIVITY "PRINCIPLE"???
Please somebody explain. I don't bust out the allcaps every day.
- psantillana
April 18, 2008 at 9:52pm
Thanks Dayo for highlighting a real issue and one that gets too little attention. Your posts on these pages are almost always original, substantive, and interesting. Please stick around and keep up the good work.
One thing, though, there was an ambiguity in your post. You said that Clinton "reversed an earlier stance" on cocaine sentencing guidelines, but later you seem to say that she remained silent on the retroactivity question. I'd welcome some clarification on which stance precisely it was that Clinton reversed.
- aeromonas
April 18, 2008 at 11:16pm
The greatest social pathology afflicting black communities is not drug abuse, it's rampant incarceration.
- aeromonas
April 18, 2008 at 11:27pm
In terms of racial disparity, however, differential sentencing for crack and powder cocaine is not the end of the story. Differential rates of arrest are important as well.
Virtually every drug-use survey supports the contention that across the board, whether you're talking about alcohol, marijuana, cocaine (free base and hydrochloride being treated as the same thing), heroin, methamphetamine, or halucinogens, whites are more likely than blacks to abuse substances, and yet blacks are many times as likely to go to jail for drug offenses. Some of this has to do with the fact that suburban whites are using substances that inner-city black dealers sell them and that dealers are both more likely to get caught and more likely to do time than users. Some of this has to do with the fact that suburban, i.e. white, drug transactions are much more likely to take place indoors, out of sight of law enforcement. But any way you slice it, it means that black communities bear the legal brunt for white people's illicit entertainment.
- aeromonas
April 18, 2008 at 11:39pm
aeronomas, I think she used to be pro mandatory minimum - at least I remember her trying to put down Obama for being anti - but I encourage D.O. to answer your question on the reversal thingy.
- psantillana
April 19, 2008 at 12:10am
Nice work DO. I'm on record here already, but in terms of Clinton's "plan", does anyone want to hold their breath while she rounds up $4 billion from "unnecessary and outdated corporate subsidies"? Presumably we're not talking about any of her campaign contributers here, or in fact anyone currently being subsidized unless they don't have any political clout, which is to say "none of them".
This is typical "class struggle" Democrat hogwash--we'll just raise the money from the Usual Suspects for another pointless Federal boondogle--wink wink, nod, nod. No one who opposed "retroactivity" for even five minutes has any credibility here. Simply leave people alone, and the savings will add up to a lot more than $4 billion.
psanti, as I understand the "principle", it's if one chooses to break a law that's on the books, it's your own responsibility without regard to whether the law is subsequently changed for any reason--it was a law when you broke it. Of course, I think your argument that if the reason the law was changed was because it was seen as unfair and counterproductive wins. In this case retroactivity should be a no-brainer. I guess what's really at issue here is mandatory sentencing, though.
- Robert Powell
April 19, 2008 at 4:21am
A question: what is the effect of jail time on minor drug criminals? Do they get hardened in prison? I think the question is relevant because if they turn "worse" in prison then releasing a flood of such prisoners all at once (and they'll all have criminal records making it harder to find jobs) could have unintended consequences. I know that sounds horrible -- they shouldn't be in jail (or have been in too long already), but those might be some of the consequences HRC was alluding to in Iowa.
Again, illegal immigration matters here: in the 1990's there was real demand pressure for low skilled workers (I'm going to assume most of these inmates we're discussing fit that description). Crime went down in the 90's, in large part because of demographic changes but also because of the worker-friendly economy. Now we're in a recession and have millions more low skilled illegal immigrants in the workforce. All the candidates voted for a plan that was going to create a four year automatic "green card amnesty" and have vowed to pass such legislation.
- Lymon1
April 19, 2008 at 8:52am
Good point Robert Powell. I suppose that the principle as you see it would be that the unfair sentence was supposed to be a deterrent, that the lawbreaker broke the law with [imputed] full knowledge of that stiff price, and for his hubris deserves the sentence he bargained for. Putting it in the terms of: what bad thing would happen if sentence reform were retroactive? I guess the answer would be that people would commit crimes thinking "yes, the sentence is stiff, but I'll just go ahead and commit the crime because then I can get the legislature to change the sentence and let me out early enough to make this worth it. Here I go..." Hm. I think that kind of thinking is insane. I think I'd like to see Clinton defend this principle with a straight face, if that is her principle.
lymon, your speculation is also interesting. That particular argument, that a flood of released prisoners would be hard on a community, could be solved by a sort of gradual release program, so that parole/probation/whatever-doesn't-even-exist-to-help-these-people-whose-lives-have-been-hobbled-by-prison agencies could handle the load. And they could release them in alphabetical order or by lottery or whatever.
But mainly I think that argument overlooks the fact that these people ARE their community, that is, they have the same rights as anyone in the community they are about to rejoin. That's if you concede the unfairness of the sentence. Which Clinton did. And in which case, at the point at which they are not supposed to be in prison any more, their continued incarceration is just as wrong as it would be to pop you or me in prison for no reason. And, according to your premise, the sooner they are released to rejoin their families, MAYBE get their old job back, the better it is for the community, the taxpayer, etc. So the community is better served the sooner they get back, if they are only being made "worse" the longer they stay, because they can't stay forever.
- psantillana
April 19, 2008 at 5:23pm