Obama did sign the Fair Sentencing Act of 2010 to reduce the disparity in sentencing for crack versus powder cocaine. Possession of 5 grams of crack cocaine had triggered a five-year mandatory minimum sentence, whereas the trigger for powder cocaine had been 500 grams. (In 2006, about 4 in 5 crack offenders were black, whereas 27 percent of powder cocaine offenders were black.)
Because the Fair Sentencing Act was not retroactive, law professor Douglas Berman co-wrote a piece in Slate last month in which he called on Obama to use his presidential pardon power to commute the sentences of about 5,000 crack offenders over-sentenced under the old law. "A stroke of the pen can undo vast racial disparities in criminal sentences," the piece argued.
Whoa. Berman's plan risks the release of some truly bad guys. It would make much more sense for Obama to name a panel to review old cases first. Over the phone, Berman agreed that there would be shrewder, safer ways for Obama to commute sentences and railed against the administration's "inability to think you can do it shrewdly."
To date, the president has commuted only one sentence. He has the worst pardon record of any modern president. That's unconscionable when you consider George and Clarence Aaron, a nonviolent first-time drug offender serving life without parole.
Marijuana isn't an issue of racial justice, but it is an issue of individual rights and states' rights. As a candidate in 2008, Obama signaled that he was reluctant to sic the awesome power of the federal government on medical marijuana in states where voters had legalized it.
As president, however, Obama has allowed federal prosecutors to go to town on medical marijuana distributors. Piper described the Obama administration as "definitely more aggressive against medical marijuana than the Bush administration, although (its) rhetoric has been better."
That rhetoric, Piper believes, resulted in Colorado and Washington voters approving measures to legalize the recreational use of marijuana last year. In December, Holder said the Department of Justice would announce a policy on the new laws "relatively soon." Hasn't happened yet.
Maybe marijuana is like same-sex marriage and Team Obama is asking: Is it safe to evolve positions now?
Here's the question: Are Obama and Holder A) equivocators who can act now because, with no re-election at stake, there's no downside or B) cold partisans who care about race and justice only as ideological wedges?
So far, the answer is B.
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