Pubdate: Sat, 08 Feb 2014
Source: Honolulu Star-Advertiser (HI)
Copyright: 2014 Star Advertiser
Contact: 
http://www.staradvertiser.com/info/Star-Advertiser_Letter_to_the_Editor.html
Website: http://www.staradvertiser.com/
Details: http://www.mapinc.org/media/5154
Author: Jacob Sullum, Creators Syndicate

SENTENCING REFORM SHOULD LEAD TO MORE COMMUTATIONS

When he was 26, Douglas Ray Dunkins Jr. received a mandatory sentence
of life without parole for participating in a Fort Worth, Texas, crack
cocaine operation.

If that business had involved cocaine powder, the mandatory minimum
would have been 20 years, and Dunkins would be free by now. Instead,
he is a middle-aged man condemned to die behind bars for an offense
that violated no one's rights.

In 2010, Congress sought to ameliorate this sort of injustice by
reducing the arbitrary sentencing disparity between the smoked and
snorted forms of cocaine. But the Fair Sentencing Act, which passed
almost unanimously, did not apply retroactively, and so thousands of
nonviolent offenders like Dunkins continue to serve prison terms that
nearly everyone now agrees are excessive.

On Jan. 30, the Senate Judiciary Committee approved a bill that would
allow prisoners like Dunkins to petition for resentencing under the
new rules, and the Justice Department announced that President Barack
Obama, who so far has shortened the sentences of nine crack offenders,
would like to issue more such commutations.

These simultaneous moves by the legislative and executive branches
suggest that, nearly three decades after Congress created draconian
crack penalties, some of the lives wrecked by that punitive panic may
yet be salvaged.

The Smarter Sentencing Act, introduced by Sens. Richard Durbin,
D-Ill., and Mike Lee, R-Utah, last July, was approved by a vote of 13
to 5, with three Republicans - Lee, Ted Cruz (Texas) and Jeff Flake
(Ariz.) - joining all 10 Democrats to advance the bill.

In addition to making the 2010 sentencing changes retroactive, the
bill would cut the mandatory minimums for certain drug offenses in
half and loosen the criteria for the "safety valve" that allows some
defendants to escape mandatory minimums.

The Durbin-Lee bill does not go as far as the Justice Safety Valve
Act, introduced last March by Sens. Rand Paul, R-Ky., and Pat Leahy,
D-Vt. That bill would make mandatory minimums effectively optional by
allowing judges to depart from them in the interest of justice.

The Smarter Sentencing Act is nevertheless a substantial
improvement.

The Drug Policy Alliance calls it "the biggest overhaul in federal
drug sentencing in decades," while the American Civil Liberties Union
describes it as "the most significant piece of criminal justice reform
to make it to the Senate floor in several years."

On the same day that the Senate Judiciary Committee approved this
sentencing reform bill, Deputy Attorney General James Cole, in a
speech to the New York State Bar Association, said Obama, who has
barely used his clemency powers so far, would like to issue more
commutations.

Cole said the president is especially interested in "lowlevel,
nonviolent drug offenders" who "would likely have received a
substantially lower sentence if convicted of precisely the same
offenses today."

There is no shortage of such prisoners. Families Against Mandatory
Minimums estimates that 8,800 crack offenders in federal prison could
qualify for shorter sentences under the revised rules.

So far, Obama has used his clemency power to help 0.1 percent of
them.

Cole asked the lawyers in his audience to help find commutation
candidates and prepare their petitions.

The ideal candidate, he said, is "one who has a clean record in
prison, does not present a threat to public safety, and who is facing
a life or near-life sentence that is excessive under current law."

The president also is interested in "petitions from first-time
offenders or offenders without an extensive criminal history."

Cole's talk of more commutations is welcome but puzzling. Obama has
received nearly 9,000 commutation petitions since taking office. Are
we to believe that so far just nine of them have proved to have merit?
Why is Cole scrounging around for applicants instead of digging into
the enormous pile of existing petitions?

Obama's lackadaisical approach to commutations highlights the need for
congressional action, which the administration (to its credit)
supports. Such legislation has the potential to free a lot more people
who do not belong in prison.  
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