The sponsor of House legislation to eliminate the disparity between crack and powder cocaine sentences told Main Justice Friday that he and House colleagues are unsure about whether they will proceed with the Senate’s version of the bill.
Rep. Robert Scott (D-Va.), who introduced the House measure last July and has long championed the change, said he is keeping all options open and a final decision should come in “a week or so.”
“The only thing that can really be justified is a total elimination of the disparity,” Scott said. “But the [Senate] bill is better than what we’ve got.”
The Senate passed its version by voice vote Wednesday. That measure, called the Fair Sentencing Act, would establish a new 18-to-1 sentencing ratio for crack and powder cocaine offenses. By contrast, the House version would eliminate the current decades-old sentencing law that sets a 100-to-1 ratio. That law requires the same five-year mandatory minimum sentence for the possession of five grams of crack cocaine as it does for the possession of 500 grams of powder cocaine.
The House Judiciary Committee approved the measure last July by a 16-9 party-line vote. The Senate Judiciary Committee approved its legislation last week by unanimous consent. Like their House counterparts, Senate Democrats initially sought to eliminate the disparity altogether but agreed to the 18-to-1 ratio to win Republican support.
Democrats have argued the law tends to disproportionately target blacks because crack is typically used in poorer urban communities. Scott said any difference between crack and cocaine sentences “makes no sense.”
The Justice Department has expressed support efforts for eliminating the differences between crack and powder cocaine sentencing. Assistant Attorney General Lanny Breuer said at a House hearing in May that the current sentencing policies are “hard to justify.”
Three Democratic House members at an event Wednesday evening read selections from the so-called “torture memos” and accounts by some of the prisoners and witnesses who alleged that torture took place in the Guantanamo Bay prison.
Reps. John Conyers (D-Mich.), Robert C. “Bobby” Scott (D-Va.) and Keith Ellison (D.-Minn.) all took turns in the dramatic reading of government documents related to the alleged torture of detainees.
Wednesday night’s event, “Reckoning with Torture: Memos and Testimonies from the ‘War on Terror’,” took place at Georgetown University Law Center and was sponsored by the American Civil Liberties Union, PEN American Center and Georgetown Law’s Human Rights Institute and the Center on National Security and the Law.
Other participants included The Daily Show correspondent Aasif Mandvi, author Matthew Alexander, former CIA special agent Jack Rice and several ACLU lawyers.
Video shot by Main Justice is embedded below, followed by several photos from the event.
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Rep. Bobby Scott (D-Va.) has introduced legislation that would make it illegal for government lawyers to request a waiver of attorney-client privilege as a measure of cooperation in civil and criminal investigations.
The Justice Department’s corporate charging guidelines prohibit prosecutors from considering waivers as a litmus test for whether a company has been cooperative.
But the policy does not extend to other agencies such as the Securities and Exchange Commission, the Environmental Protection Agency and the Department of Housing and Urban Development.
The bill, like the guidelines, also bars government lawyers from penalizing corporations for paying employees’ legal fees, or for entering into joint defense agreements with employees.
The 2008 guidelines, known as the Filip memo, after former Deputy Attorney General Mark Filip, are not enforceable under law, and the Justice Department has opposed previous attempts to render them so.
The history of the guidelines begins with Attorney General Eric Holder, who as Deputy Attorney General during the Clinton administration signed a memo authorizing that a corporation’s waiver of attorney-client and work product privileges could be considered when assessing cooperation in a criminal investigation.
Holder has said he intended for prosecutors to ask for waivers in instances where a corporation was already cooperating with the government. But the memo became a tool of coercion, in some cases, with prosecutors demanding waivers as a condition of cooperation.
Scott’s bill, which was introduced on Wednesday, is identical to one passed by the House in the 2007. Sen. Arlen Specter (D-Pa.) introduced similar legislation in February.
White & Case LLP partner Carolyn Lamm, president of the American Bar Association, welcomed the legislation, saying it would create “a sensible, uniform standard of conduct for all federal agencies.”
See Lamm’s full statement below:
The American Bar Association applauds the introduction in the U.S. House of Representatives of legislation, H.R. 4326, designed to roll back federal agency policies that continue to erode fundamental attorney-client privilege, work product and employee legal protections.
The Attorney-Client Privilege Protection Act, introduced yesterday by Rep. Bobby Scott and cosponsored by numerous House Judiciary Committee members from both parties, recognizes the importance of the attorney-client privilege to our legal system, our nation’s economic health and our society as a whole. Protecting confidential attorney-client communications from government-compelled disclosure fosters voluntary compliance with the law, and that benefits everyone. Government tactics that coerce disclosure, on the other hand, undermine these benefits and our adversarial system of justice, and can unfairly threaten the very survival of organizations, including even the largest, most robust corporations. In addition, government policies that pressure companies to refuse to provide employees with legal assistance while investigations are pending, or to fire them for asserting their Fifth Amendment rights, weaken the constitutional presumption of innocence and undermine principles of sound corporate governance. The ripple effect harms employees, investors and all of society.
While the ABA supports the revised corporate charging guidelines issued by the Justice Department in August 2008 that expressly bar prosecutors from forcing organizations and their employees to waive fundamental protections during investigations, those guidelines do not have the assurance of permanence and do nothing to change the similar policies still in effect at the Securities and Exchange Commission, the Environmental Protection Agency, the Department of Housing and Urban Development, and other agencies. Such policies, like the Justice Department’s previous policy, pressure organizations to waive their privileges and violate their employees’ Sixth Amendment right to counsel and Fifth Amendment right against self-incrimination to receive cooperation credit during investigations.
H.R. 4326 — like the similar Senate bill, S. 445, introduced by Sen. Arlen Specter in February — would make the Justice Department’s reforms permanent, give them the full force of law and apply them to all federal agencies. The legislation would create a sensible, uniform standard of conduct for all federal agencies and strike the proper balance between the legitimate needs of prosecutors and regulators, and the constitutional and fundamental legal rights of individuals and organizations.
The American Bar Association strongly urges Congress to approve this critical legislation as soon as possible.
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The House Judiciary Committee endorsed legislation today that would establish the same sentencing guidelines for powder cocaine and crack offenses.
The Democrat-backed “Fairness in Cocaine Sentencing Act of 2009” was reported out of committee by a 16-9 vote along party lines. The legislation would eliminate the 100-to-1 ratio between crack and powder cocaine penalties put in place by Congress in the 1980s. The decades old law gives the same five-year mandatory minimum sentence for the sale of five grams of crack cocaine as it does for the sale of 500 grams of powder cocaine. The legislation supported by the panel today also would abolish mandatory minimum sentences for crack and remove distinctions between powder cocaine and crack offenses.
“This distinction is no longer considered rational,” Rep. Bobby Scott (D-Va.), chair of the House Judiciary crime, terrorism and homeland security subcommittee, said at the meeting today.
Panel Republicans tried to kept mandatory penalties for powder cocaine and crack offenses in place, but were unsuccessful. The committee tabled an amendment offered by Rep. Darrell Issa (R-Calif.) that would have maintained a mandatory minimum prison sentence for powder cocaine and crack offenses.
“The bill sends the wrong message to drug dealers and those who traffic in ravaging human lives,” said House Judiciary Ranking Member Lamar Smith (R-Texas) at the meeting. “It sends the message that Congress does not take drug crimes seriously.”
Assistant Attorney General Lanny Breuer has stood in support of Congress’s efforts to eliminate the differences between crack and powder cocaine sentencing. He said at a hearing in May that the current sentencing policies – which disfavor blacks because crack is generally sold in poor urban communities – are “hard to justify.”
This post has been corrected from an earlier version.
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Former Attorney General Richard Thornburgh urged members of the House Judiciary crime, terrorism and homeland security subcommittee this afternoon to revamp federal laws that over-criminalize conduct.
The ex-federal prosecutor said at a hearing today that many statutes in the Federal Criminal Code unfairly punish individuals who do not have a “evil-meaning mind [and] evil-doing hand.” The panel hearing included testimony from Kathy Norris, whose husband was imprisoned for importing orchid bulbs without the proper paperwork.
“True crimes should be met with true punishment. While we must be ‘tough on crime,’ we must also be intellectually honest,” said Thornburgh, who served as Attorney General under Presidents Ronald Reagan and George H.W. Bush and is of counsel at K&L Gates LLP. “Those acts that are not criminal should be countered with civil or administrative penalties to ensure that true criminality retain its importance and value in the legal system.”
Thornburgh said problems with over-criminalization could be fixed by streamlining the federal criminal code, establishing standards that protect companies from “rogue” employees and curbing the increase in criminal offenses that are imposed by regulatory agencies and not enacted by Congress.
Subcommittee Ranking Member Louie Gohmert (R-Texas) said the Federal Criminal Code hasn’t been updated for 50 years and includes a number of overlapping statutes. Panel Chair Bobby Scott (D-Va.) and Gohmert agreed that the patchwork of federal criminal laws must be revised. Rep. James Sensenbrenner (R-Wisc.) introduced legislation this year to “modernize, shorten and simplify” the code.
“Such a rewrite would be a tremendous undertaking, but would be valuable to both practitioners and members of Congress,” Gohmert said.
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Former Massachusetts U.S. Attorney Michael J. Sullivan urged members of the House Judiciary crime, terrorism and homeland security subcommittee this morning to retain mandatory minimum sentences for serious crimes.
The panel is considering four bills that seek to eliminate mandatory minimum sentences for drug crimes including crack cocaine offenses and law enforcement officials who use their guns in a crime while on duty.
The bills under consideration are:
Sullivan said that the risk of a long mandatory sentence entices drug offenders to cooperate during investigations.
“Without the mandatory minimum, a lot of the regional and national drug investigations would be stalled,” said Sullivan, a partner at Boston law firm Ashcroft Sullivan, which was founded by former Attorney General John Ashcroft.
Julie Stewart, president of Families Against Mandatory Minimums, said at the hearing today that prosecutors in white collar cases and other complex cases are still able to get cooperation without imposing mandatory minimum sentences.
“There are ways to bring conviction without mandatory minimum sentences,” said Stewart, the wife of Office of Legislative Affairs head Ron Weich. The Assistant Attorney General has said he will recuse himself from all matters involving mandatory sentencing policies because of his wife’s advocacy work.
Subcommittee Democrats said mandatory sentencing laws unfairly target blacks and do not fit the crime.
The panel held a hearing in May about the legislation that will revise the 100-to-1 ratio between crack and powder cocaine penalties put in place by Congress in the 1980s. The decades old law gives the same five-year mandatory minimum sentence for the sale of five grams of crack cocaine as it does for the sale of 500 grams of powder cocaine.
Assistant Attorney General Lanny Breuer has stood in support of Congress’s efforts to eliminate the disparity between crack and powder cocaine sentencing.
“We know the mandatory minimum sentences do not work,” said subcommittee Chair Rep. Bobby Scott (D-Va.)
Panel Republicans said some of the laws could be tweaked, but mandatory minimum sentences should not be eliminated completely.
“When the thermostat is swung from one extreme temperature to another, people get sick,” said subcommittee Ranking Member Louie Gohmert (R-Texas).
Sullivan agreed with the Republicans. He said there are very few examples of mandatory minimum sentences that were unwarranted.
“The vast majority received sentences that are appropriate under the current sentencing scheme,” Sullivan said.
The panelists at the hearing also discussed the Ramos and Compean Justice Act, which would eliminate mandatory minimum sentences for law enforcement officials who use their guns in a crime while on duty.
The bill is named for former Border Patrol agents, Ignacio Ramos and Jose Compean, who shot a fleeing Mexican drug smuggler in the buttocks and tried to cover the incident up. Former Bush aide Johnny Sutton, the former U.S. Attorney in San Antonio, led the 2005 prosecution that outraged conservative commentators and even many Democrats, most prominently Sen. Dianne Feinstein of California.
Ramos was sentenced to 11 years. Compean received a 12 year sentence. They received the sentences because of mandatory minimum sentencing laws. Rep. Ted Poe (R-Texas), sponsor of the Ramos and Compean Justice Act, successfully lobbied President Bush to commute their sentences in January, which set them free.
National Border Patrol Council President T. J. Bonner, whose organization represents border law enforcement officials, said at the hearing that mandatory minimum sentencing laws affect the morale of agents trying to do their job.
“This is a problem that needs to be addressed,” Bonner said.
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Assistant Attorney General Lanny Breuer continued to stand in support today of Congress’s efforts to eliminate the disparity between crack and powder cocaine sentencing.
The House Judiciary crime, terrorism and homeland security subcommittee is considering a series of bills that will revise the 100-to-1 ratio between crack and powder cocaine penalties put in place by Congress in the 1980s. The decades old law gives the same five-year mandatory minimum sentence for the sale of five grams of crack cocaine as it does for the sale of 500 grams of powder cocaine.
Breuer said at the subcommittee hearing that the current sentencing policies –which disfavor blacks because crack is generally sold in poor urban communities – are “hard to justify.”
“The Obama administration firmly believes that our criminal and sentencing laws must be tough, predictable, fair, and not result in unwarranted racial and ethnic disparities,” Breuer said.
House Judiciary Committee Chairman Rep. Lamar Smith (R-Tex.) said simply scrapping the ratio would not be the answer to the disparity.
“As Congress considers revising the sentencing disparity, we should not discount the severity of crack addiction or ignore the differences between crack and powder cocaine trafficking,” Smith said in a statement prepared for the subcommittee. “Nor should we presume that the only solution to the disparity is to lower the crack penalties. Cocaine is still one of the most heavily trafficked and dangerous drugs in America.”
Breuer did not discount the severity of crack addiction or trafficking. He said in his statement that cocaine is “a serious risk to the health and safety of Americans,” but he would not take a position on mandatory minimum penalties for cocaine offenses, when asked by the subcommittee chair Rep. Bobby Scott (D-Va.)
“Ultimately, we all share the goals of ensuring that the public is kept safe, reducing crime and substance abuse, and minimizing the wide-reaching, negative effects of illegal drugs,” Breuer said.