New at Reason

Jacob Sullum finds no credible explanation for the most dramatic drug law on the books.

Comments

prolefeed | December 19, 2007, 8:23am | #

The curious thing in the Supreme Court decision is Justice Thomas' assertion in his dissent to the 7-2 ruling that, though he hints that he feels the crack vs. powder disparity is wrong, he feels that SCOTUS does not have the constitutional authority to give judges the discretion to ignore a law passed by Congress, and that instead the decision to be lenient must be given to juries.

How do people here feel about Thomas' dissent?

ed | December 19, 2007, 8:47am | #

I have no opinion regarding Doubting Thomas, but I'd like to see more awareness amongst our "peers"--those folks who sit on juries--as to their right to nullify when they feel the law is unjust. Too many think they must uphold the law even when they (privately) know the law is dubious if not an outright travesty.

tarran | December 19, 2007, 9:05am | #

I think Thomas is right from a strictly legal standpoint.

However, I also think that providing judges the widest latitude to exercise mercy is a great idea. The legislatures should abandon this business of minimum sentences.

Troy | December 19, 2007, 9:54am | #

Do they even allow you to use jury nullification as a jury instruction, anywhere?

LarryA | December 19, 2007, 10:22am | #

legislators should not let fear of seeming soft on drugs stop them from correcting that mistake.

I'll not be holding my breath.

x,y | December 19, 2007, 11:00am | #

I haven't read Thomas' dissent, but I assume, from a libertarian or constitutionalist persepctive, that you could simply say the feds had no authority to pass the law in the first place. Perhpas that wasn't the issue in the case -- I haven't RTFA either -- but it's a thought.

J sub D | December 19, 2007, 11:38am | #

An improvemnent, IMHO.

...as to their right moral duty to nullify when they feel the law is unjust.

ed | December 19, 2007, 11:40am | #

Do they even allow you to use jury nullification as a jury instruction, anywhere?

I doubt it. By "nullification" I mean: find the defendant not guilty if the punishment is grossly disproportionate to the "crime". All the better if you consider drug use a victimless crime. Most libertarians do. I'd hold out for acquittal in such a circumstance, regardless of the evidence.

ed | December 19, 2007, 11:44am | #

Problem is, you'd be hard pressed to convince the yokels in the jury to go along with you.
"Theory, schmeary, I wanna go home!"

maytown | December 19, 2007, 11:48am | #

to be honest i don't see why people are so pissed off about this law. Crack IS more addictive, the effects are felt quicker, therefore it is stronger, therefore you come down quicker, there fore you have more severe cravings. Just because more black people do this drug doesn't mean shit. Why don't black people just do cocaine instead?? Its stupid!

the innominate one | December 19, 2007, 12:07pm | #

maytown:

perhaps because crack is less expensive on a per-high basis?

Shannon Love | December 19, 2007, 12:10pm | #

Crack use does have significantly different social consequences than does powdered cocaine.

Crack produces short, intense mood elevations followed by a sustained intense depression. Powdered cocaine produce a less intense and longer high with less rebound.

The differing pattern of highs produces different patterns of addict behaviors. Crack addicts tend to migrate to physical location where they can have daily or even hourly access to the drug. This concentration of addicts has severe consequences for the locale involved. Powdered cocaine does not produce this pattern (although injected cocaine did).

Stiffer sentencing for crack arose in part out the realization in the 80's that crack use imposed significantly higher cost on society, and often hit the most vulnerable members of society hardest, than did powdered cocaine.

None of this means the harsher sentences were justified but there was a prima facia case for treating the two forms of the drug as presenting different levels of threat.

R C Dean | December 19, 2007, 1:24pm | #

I think Thomas is right from a strictly legal standpoint.

Yeah, me too, although only with respect to dumbshit laws that aren't actually unconstitutional. The crack sentencing disparities could be tossed out as "cruel and unusual", taking powder sentencing as your baseline.

Paul | December 19, 2007, 1:52pm | #

I'm all for reducing and reforming drug law sentencing but...

This whole kerfuffle seems to strike me as an episode of not remembering how we got to where we are.

As I recall, the reason crack sentences were so stiff was that it was seen as a scourge on the most vulnerable and poorest Americans. Powdered cocaine was seen as only affecting hot-shot urban professionals, whereas crack had a different impact on a different demographic. What was seen 20 years ago as an attempt to deal harshly with those who victimized the poorest Americans, we now see as a further victimization of that same demographic.

Again, I'm all for reform in this area, but it seems that we're acting all shocked and surprised that there would be a disparity at all.

Paul | December 19, 2007, 1:56pm | #

Prolefeed,

Thanks for bringing up the Thomas dissent. I'll have to read it. But based on your post, it sounds like Thomas was attempting to be correct rather than be fair. At face value, Thomas' argument may hold some water.

Brandybuck | December 19, 2007, 2:00pm | #

Many jury nullification "advocates" make the astonishing claim that a jury can nullify a law; vote it out of existance, erase it from the rolls, wish it into the cornfield, etc. That's utter nonsense.

However, a jury can always aquit for any reason they want. Hell, they aquitted O.J.! What jury nullification really means, is that if enough juries started aquitting in drug cases, prosecutors will stop wasting their time pursuing drug cases.

crimethink | December 19, 2007, 4:16pm | #

Brandybuck,

To get an acquittal, you'd have to get all 12 members of the jury to agree the law was unjust. Anything else will result in a hung jury and a second trial, as there is no way a prosecutor will risk giving up and being painted as soft on drugs.

Add to that the fact that judges actually instruct the jury that they MUST apply the law as written, and are only supposed to decide on matters of fact. This is a blatant disregard for the Anglo-American tradition of jury nullification, but that's what we have now.

juris imprudent | December 19, 2007, 11:10pm | #

Add to that the fact that judges actually instruct the jury that they MUST apply the law as written, and are only supposed to decide on matters of fact.

And, as an officer of the court (and member of the bar) you will almost NEVER get an attorney to stand up in court and argue for nullification. They tend to take away his decoder ring and membership card if he does.

Mike Laursen | December 20, 2007, 1:26am | #

However, a jury can always aquit for any reason they want.

If they keep their mouths shut. What happens, though, if a jury member says that he acquitted because he didn't agree with the law as written?