Rachel Barkow testifies before the House and the U.S Sentencing Commission

On July 8, Professor Rachel Barkow, faculty director of the Center on the Administration of Criminal Law, testified before the House Subcommittee on Commerce, Trade, and Consumer Protection on the proposed Consumer Financial Protection Agency (CFPA). The proposed agency is charged with protecting and informing consumers in the increasingly complicated world of financial services and products.

On July 10, Barkow testified before the U.S. Sentencing Commission, which held a regional hearing in New York, on the 25th anniversary of the Sentencing Reform Act.

Barkow’s testimony in the House explored the structure and powers of the proposed CFPA to determine if it was designed in the most effective way to achieve its stated statutory mission. She offered five recommendations and a note of caution:

  • Include a provision limiting CFPA’s membership to no more than three members of the same political party;
  • Take a closer look at the consultation requirement to make clear that consultation is at the discretion of the CFPA and not subject to judicial review;
  • Modify the statute of limitations provision in the Act to begin running from the time the CFPA discovers a violation, not from the time a violation has occurred;
  • Suggest including a limitation on the ability of CFPA board members to practice before the CFPA for a period of time after their terms of service have expired;
  • Recommend giving CFPA’s research unit a mandate to analyze and report on suppliers of financial services and products and on regulations imposed on these suppliers by other regulators;
  • Raise the issue of the relationship between the CFPA and the president to clarify whether the CFPA will be subject to presidential directives and oversight, including review by the Office of Information and Regulatory Affairs in the president’s Office of Management and Budget.

In her testimony before the Sentencing Commission, Barkow suggested that the Commission make the following changes:

  • Account for relevant individual differences to ensure proportional punishment while at the same time avoiding arbitrary and unwarranted distinctions among similarly situated offenders;
  • Reconsider the use of acquitted conduct to increase sentences;
  • Reevaluate its decision to set drug trafficking guideline ranges around the mandatory minimums set by Congress;
  • Prioritize its empirical research and data analysis in setting the agenda for itself and Congress.

The Commission also asked witnesses to provide any statutory changes that should be recommended to Congress, and Barkow suggested two changes supported by the Commission: Congress should eliminate mandatory minimums, allowing the Commission to set sentencing ranges on the basis of its empirically-grounded knowledge, and Congress should eliminate the disparity in treatment between the penalties for trafficking crack and powder cocaine.

On the latter point, Barkow said it takes 100 times more powder cocaine than crack cocaine to trigger the same mandatory minimum penalty. "The Commission has concluded that the violence associated with crack is not tied to effects of its use, but is based primarily on the drug trade itself," she said. "Distribution-related violence applies to all drugs, thus there is no reason to single out crack for increased penalties on that basis. The 100-to-one ratio is particularly pernicious because it results in extreme racial disparities in sentencing. Roughly 80 percent of crack cocaine defendants in 2008 were African American, and African Americans now serve as much time in prison for drug offenses (58.7 months) as whites do for violent offenses (61.7 months)."

Posted on July 10, 2009

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