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Derrick Z. Jackson

Obama's caution on drug sentencing


IT IS UNCLEAR if Barack Obama's caution precedes consensus or cave-in. Asked if he would eliminate discriminatory laws that punish crack cocaine possession so heavily that it would take 100 times more in powder cocaine for the same sentence, Obama started off by saying the law was a mistake. He talked about his record in the Illinois Senate.

"I want to point out that I fought provisions like this and in many cases voted against provisions like this, knowing the way they could be exploited politically," Obama told the Trotter Group of African-American newspaper columnists last week after addressing the National Association of Black Journalists. "I thought it was the right thing to do. Even though the politics of it was tough back in the '90s, as a state legislator I took some tough votes to make sure we didn't see the perpetration of these kinds of unjust laws."

In the wake of Illinois's moratorium on the death penalty, Obama sponsored legislation making his state the first in the nation to mandate videotaping and tape recording of interrogations and confessions in murder cases. The law was meant to increase public confidence in the prosecution of murder cases.

The Chicago Tribune's editorial board wrote that Obama deserved "an enormous amount of credit" for "meeting repeatedly with every group interested in this issue, finding clever ways to accommodate law enforcement's most reasonable concerns and holding firm against the flimsier ones. As a result, several lobbying organizations for police and prosecutors have dropped their opposition to the legislation."

Obama also successfully sponsored the creation of a study on racial profiling in traffic stops. Obama said in 2001, "It's problematic for us to continually pass criminal laws based on anecdote."

A Tribune profile this spring on Obama found vacillation on what anecdotes merit capital punishment. He opposed expanding the death penalty for "gang activity" murders, saying it would serve as a "mechanism to target particular neighborhoods." But he voted to strengthen the penalty for particularly gruesome killings of elders or the physically or mentally challenged.

That vacillation became evident as he kept talking about crack-vs.-powder sentencing, which has come to symbolize racial injustice in criminal justice. He said that if he were to become president, he would support a commission to issue a report "that allows me to say that based on the expert evidence, this is not working and it's unfair and unjust. Then I would move legislation forward."

That was a puzzling statement because the US Sentencing Commission, created by Congress in 1984, has long said the system is not working and reaffirmed in April that the 100-to-1 ratio "significantly undermines" sentencing reform.

Obama asked if he could make a "broader" point. "Even if we fix this, if it was a 1-to-1 ratio, it's still a problem that folks are selling crack. It's still a problem that our young men are in a situation where they believe the only recourse for them is the drug trade. So there is a balancing act that has to be done in terms of, do we want to spend all our political capital on a very difficult issue that doesn't get at some of the underlying issues; whether we want to spend more of that political capital getting early childhood education in place, getting after-school programs in place, getting summer school programs in place."

Obama claimed, "I'm not suggesting it's an either/or but I'm suggesting that an even higher priority for me is getting young men and increasingly young women to stop getting involved in the drug trade in the first place. And that's going to require pretty heavy lifting. That's going to require some billions of dollars of expenditure that aren't there right now."

By asking an open question about spending "all our political capital" on eliminating the 100-to-1 ratio, that raises the possibility he will spend little or none on it. By talking about a "broader" prescription of early childhood school programs -- which means nothing to a 17-year-old in jail-- Obama risks flashing a losing card of being nonconfrontational.

President Clinton tried that a decade ago and lost. Obama said he voted in Illinois to stop the perpetration of unjust laws. Without a stronger voice on 100-to-1, he becomes part of the problem of continually passing criminal laws based on anecdote.

Derrick Z. Jackson's e-mail address is