Prison Law Blog

Sara Mayeux

SCOTUS Nominee Elena Kagan: More Concerned with Political Expediency than Justice?

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Or so suggests Joe Conason at

For decades, the senseless disparity in sentencing of crimes involving plain old cocaine and crack cocaine — with the latter punished up to 100 times as harshly — has efficiently swelled the disproportionate number of minority prison inmates. In practice this means that major drug dealers selling white powder often get off easier than the street-level crack dealers who are their customers.

Eliminating (or even just reducing) that difference is a critical aspect of drug law reform, as well as a simple gesture toward racial justice. It is a progressive goal that dates back to the Clinton presidency. But a document unearthed from the Clinton archives indicates that Supreme Court nominee Elena Kagan advised President Clinton not to go there — for purely political reasons.

As first reported in Politico, Kagan prepared a  memo on the issue in her role as deputy director of the president’s Domestic Policy Council in the late ’90s.  Like several similar memos that indicate her “centrist” positioning on issues of race and reproductive rights back then, its blunt wording suggests that she never expected anyone outside the Clinton White House to read it.

“Our more nuanced message will not sell as well as the ‘tough on crime’ opposition message in an age of sound bites,” she explained, noting that congressional resistance to reforming the law would result in a stalemate. In essence, the memo advised Clinton to ignore the recommendations of his own Federal Sentencing Commission, which had studied the crack/powder problem as part of the 1994 Omnibus Crime Bill at the behest of the president.

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