Drug War

Drug Sentences Will Never Be Fair

Commutations and reforms can only ameliorate the inherent injustice of prohibition.


When President Obama issued his latest batch of commutations last week, the White House called them "102 second chances." Obama, who shortened just one sentence during his first term, is finally taking advantage of his second chance by issuing more commutations "than the previous 11 presidents combined" (as the White House puts it), 97 percent of them in the second half of his second term.

While Obama deserves credit for his belated but numerically impressive mercy, it should not obscure the fact that most of the people whose petitions he has granted did not belong in prison to begin with. Thousands more like them are still behind bars thanks to the moral travesty known as the war on drugs.

Almost all of the 774 prisoners whose sentences Obama has shortened so far are nonviolent drug offenders, 282 of whom received life sentences. One of them is Ricky Minor, a Florida carpet installer who in 2000 was caught with a little more than a gram of methamphetamine, plus supplies for making more: pseudoephedrine pills, acetone, matches, and lighter fluid.

Minor, who had a long history of drug problems, said the meth was intended for himself and his wife. To avoid charges against her that could have left their children without parents, he pleaded guilty to attempted manufacture of methamphetamine.

Under state law, Minor probably would have received a sentence of two or three years. But under federal law, he qualified as a "career offender," which triggered a mandatory life sentence.

That designation was based on a string of convictions for nonviolent drug offenses, none of which resulted in prison time. Minor had also been involved in some minor altercations that led to convictions for assault, trespass, battery, breach of peace, and resisting arrest.

Minor's criminal history hardly marked him as a violent predator who needed to be locked away for life. The judge who sentenced him acknowledged that a life term "far exceeds whatever punishment would be appropriate" while noting that he had no choice but to impose it.

"I was sitting in the courtroom when it happened," Minor's mother recalled in an interview with the American Civil Liberties Union, "and it was all I could do to stay seated in my chair. I was so shocked. I just couldn't believe they could do that to him."

Recognizing this miscarriage of justice, Obama last week shortened Minor's sentence from life to 262 months—almost 22 years. Minor already has been behind bars for 15 years, which is 15 years too many for someone whose crime consisted of mixing together some common household chemicals.

Although 22 years is less outrageous than a life term as a punishment for that offense, it can hardly be called fair. Yet this is what counts as progress in a criminal justice system that routinely locks people up for doing things that violate no one's rights.

In that context, the Fair Sentencing Act, which Obama signed in 2010, was a major improvement. While it used to take 100 times as much cocaine powder to trigger the same penalty as a given amount of crack, it now takes only 18 times as much.

The distinction between the snorted and smoked forms of cocaine is arbitrary and unscientific, so the new scheme is just as nonsensical as the old one. But it is less onerous for crack offenders, who happen to be overwhelmingly black.

Because the change did not apply retroactively, thousands of crack offenders continue to serve sentences that nearly everyone now agrees are too long. While Obama's commutations have helped some of them, at his current pace the vast majority will get no relief.

Congress could do more. But what seemed like bipartisan enthusiasm for sentencing reform fizzled this year in the face of pre-election anxieties about looking soft on crime. If fair sentencing is the goal, what's really needed is a reconsideration of what counts as crime.

© Copyright 2016 by Creators Syndicate Inc.

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  1. I like chicken, I like liver, Meow Mix, Meow Mix please de-liver.

    1. 91% of cats (per Cato) reject the Meow Mix label. Thug.

      1. Adam Smith Institute just changed their self-labeling from Libertarian to Meow-Liberal.

    2. Cocaine cannot be converted to crack, got it. Except when it can be.

      1. Which is always.

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  2. Drug Sentences Will Never Be = just = because the war on drugs in un Constitutional and runs counter to our natural right to control our own body.

    1. It does run counter to our natural rights to control our own bodies. Unfortunately, that doesn’t make it unconstitutional.

      1. Well, yeah it does.

        Where in the Constitution has the government been granted the privilege to do this?

        1. The federal drug prohibition is unconstitutional, that much is clear. But it’s state law that is doing the most rights violating.

          1. Only because most policing is done at the state level, for practical and (sort of) constitutional reasons.

          2. The federal drug prohibition is unconstitutional, that much is clear.

            It required a constitutional amendment to outlaw alcohol, since that is an unenumerated right protected by tthe ninth and tenth amendments. It follows that, absent another constitutional amendment, the WOD at any level of govt is similarly violating unenumerated rights.

            1. I’m not saying your necessarily wrong about it being unconstitutional, but jurisprudence at the time and prohibition’s biggest proponents didn’t think they needed the amendment to make the Volstead Act constitutional, they opted for the amendment to make it harder to repeal down the road.

        2. Commerce Clause + Necessary and Proper Clause.

          Invoke the General Welfare Clause and you have the trifecta for the Constitutional FYTW Clause.

      2. The way the federal drug war is prosecuted is unconstitutional because its relies in large part on a ridiculous interpretation of the commerce clause.

        1. Nearly all federal law enforcement is predicated on this interpretation of the commerce clause.

          If you do anything that connects to an interstate highway or you use a tool, like say a shovel, that travels interstate, then any federal law can be applied to you.

          1. There’s at least 1 or more oxygen atoms that, at some point during its life history, spent time in the state other than the state in which you are currently residing. This is true of ALL of our bodies (there are trillions upon trillions-times-trillions of oxygen atoms in each of our bodies, and air mixes freely and rapidly, world-wide, it is known, proven true). Therefor, interstate commerce allows the feds to dictate to us at will!

  3. You want to control your own body? I’m shocked.

  4. While Obama deserves credit for his belated but numerically impressive mercy…

    Deserves? Sullum, your charity is to be commended.

    Obama is a self-centered tit whose sole concern here is what he can do for himself. If he could garner the same benefit by ignoring the plight of his fellow man, he would. Does. Is.

    “Do you mean to say you find me arrogant?”

    “Well, you gave one man back his life, but did you even glance at the others?”

  5. While Obama deserves credit for his belated but numerically impressive mercy,

    1. Its not numerically impressive. Just because the previous Presidents – especially the ones from Nixon on with their support for the Drug War – have been miserly with pardons and commutations doesn’t mean that Obama being *slightly* less miserly is impressive.

    FFS – if anti-tobacco people told you that a smoking ban reduced hearts attacks by 50% in one study the first thing you guys’d be doing is tearing apart the numbers and pointing out that ‘going from 3 to 2 heart attacks is statistically insignificant’.

    2. He doesn’t deserve credit either. The man has the power (but not the will) to have drastically changed the DEA and DoJ enforcement priorities and he sat on his ass. He could have unilaterally ordered marijuana rescheduled – basically he could have ordere *everything* rescheduled.

    That he can be bothered to autopen a hundred forms is *not* to his credit.

  6. Stories like that of Mr Minor really grab me by the pussy, you know?

  7. To lawyers elected to Congress, “fair” means “will generate attorneys’ fees.” If they get shot or beat in an election (and we the People people DO get dealt straight flushes as a pat hand now and then), they’ll need lots of innocent kids whose parents want them released from jail and kept out of prison. So the more cops appealing wrongful homicide convictions for shooting some kid in the back over a hemp seed, the better. The whole point of hand-wringing over undefined “fairness” is that it keeps the laws non-objective and random and generates high fees for lame-duck attorneys.

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  11. Well, out of prison is certainly preferable to in, but if he really wanted to give drug felons a “second chance,” he’d expunge their convictions.

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