(Originally posted on Huffington Post.)

It's time for Congress to take the unjust, unwarranted laws for crack sentencing off of the books.

Right now, federal law mandates an automatic five-year prison sentence for possession of five grams of crack cocaine and 500 grams of powder cocaine. That's a 100:1 disparity for possession of the identical drug.

The crack disparity doesn't make sense.

But tell that to your U.S. representative and two senators. Call, write and visit Congress. Send the message that the punishment given out for crack and cocaine should be the same. The ACLU and our coalition partners will make a concerted push to fix the law today, April 28, 2009.

How is it possible for the federal law to treat different forms of the same drug differently?

In June 1986, the death of University of Maryland basketball star Len Bias shocked the nation. Just days after becoming a player for the Boston Celtics, Bias died of a cocaine — assumed incorrectly to be crack — and alcohol overdose. The intense media attention around Bias's death led to quick congressional action to pass the Anti-Drug Abuse Act of 1986. It established the mandatory minimum sentences for federal drug trafficking crimes and created a 100-to-1 sentencing disparity between powder and crack cocaine.

Many assumptions that were the basis of the 1986 law have been proven false. The little legislative history that exists suggests that at the time, Congress believed crack was more addictive than powder cocaine, that it caused crime, that it caused psychosis and death, and that crack's low cost and ease of manufacture would lead to an epidemic in our inner cities. Researchers now know that the effects of crack cocaine and powder cocaine are the same, regardless of the form.

In fact, the biggest difference between crack cocaine and powder cocaine is skin color. People arrested for crack possession are more likely to be black, despite the fact that most users are white.

Federal law shouldn't make an artificial distinction between sentencing for crack cocaine and powder cocaine. That's why we support H.R. 265, the Drug Sentencing Reform and Cocaine Kingpin Trafficking Act of 2009 which was recently introduced by Sheila Jackson-Lee (D-Texas). This bill will equalize the crack and powder sentencing laws.

This legislative fix puts much needed fairness back into our criminal justice system. The goal of the severe crack penalties was to go after the high-level traffickers. Two decades later, the record shows that this goal has failed. The opposite has happened. The mandatory penalties have filled the prisons with low-level offenders. More than 60 percent of the federal crack defendants are small fish in the drug trade.

At the same time, some recent developments illustrate the broad ideological support for changing the sentencing law. In multiple reports, the U.S. Sentencing Commission, an independent agency in the federal judicial branch, has recommended that Congress take immediate action to erase the disparity. In 2007, the Supreme Court ruled in Kimbrough v. United States that federal judges can sentence crack cocaine offenders below the federal sentencing guidelines. This decision gives judges more discretion to base a sentence on the evidence.

Both former President George W. Bush and President Barack Obama have indicated that they agree with the growing momentum to eliminate the sentencing disparity. During a CNN interview in 2001, Bush remarked that the crack-powder disparity "ought to be addressed by making sure the powder-cocaine and the crack cocaine penalties are the same." Right now on the whitehoue.gov page, the Obama administration lists the complete elimination of the disparity as one of its civil rights priorities.

With all this momentum for change, it's critical to remember that Congress alone has the power to address the crack sentencing disparity.

(Originally posted on Huffington Post.)

House Judiciary Committee Chairman John Conyers has subpoenaed former presidential advisor Karl Rove to testify twice on his role in the Bush administration’s politicization of the Department of Justice. Now, if Mr. Rove’s message on the Fox TV show The O’Reilly Factor is to be believed, he plans to once again ignore Congress by failing to appear and testify under oath.

Last year in response to his first subpoena, Rove claimed that Congress cannot compel a former presidential adviser to testify. In a letter from then White House Counsel Fred Fielding, the Bush White House called this “absolute immunity.”

Wow!

That sounds ominously like that famous Nixon quote “when the president does something, it is not illegal.” Rove should probably see Frost/Nixon, so he is reminded how badly this approach usually ends.

One of the fastest ways to restore a meaningful check on executive authority is for Congress and the President to speak with one voice and compel Rove’s testimony.

A recent New York Times editorial, “A New Subpoena for Karl Rove,” is right when it notes, “Americans deserves a full accounting.”

As the hiring scandals of 2007-2008 revealed (and Mr. Rove oversaw), the Department of Justice has become overly politicized in the past eight years. Politics has been allowed to trump fidelity to the law.

The newly confirmed attorney general should create a blue-ribbon commission to study and make recommendations on remedying the politicization of the Department of Justice under the Bush administration. The commission should report on its recommendations within 90 days.

The legislative battle over gutting the Foreign Intelligence Surveillance Act will resume in the Senate in Washington on July 8.

Without a dramatic turnaround, it appears we will lose this important fight in the Senate over the gutting of the Foreign Intelligence Surveillance Act.

Amendments, including the one likely offered by Senators Dodd and Feingold to strip immunity from the bill are a valiant attempt to improve the bill. However such amendments are not likely to stem the tide of what looks to be certain passage of an unconstitutional bill. Nor are they likely to stop a final bill that immunizes the telecommunications companies that broke the law.

While we greatly appreciate the valiant efforts of senators like Feingold and Dodd to improve the legislation – these efforts should not and will not provide political cover for any senator that says ‘yes’ to any bill with warrantless wiretapping or immunity for telecommunications companies that broke the law.

The pivotal vote is the one at the end, on July 8. On that day, Senators will make a crucial decision: whether or not to eviscerate American’s treasured right to privacy in our own homes and codify a Nixonian view on executive power that, “if a president does it, it is not illegal.”

The ACLU’s message to senators who may be considering a stand against immunity, then capitulating by voting for a bill with unconstitutional spying powers and immunity is this: a valiant but unsuccessful attempt to strip immunity out of the final bill is not a civil liberties fig leaf.

Although we will urge senators to vote for amendments to improve the bill, the bottom line for the ACLU is that no president should have the power to monitor the phones and emails of Americans without a warrant, and telecommunications companies should not be let off the hook. No president should have the power to pardon companies that broke the law.

The ACLU calls on the next president to conduct an immediate investigation of warrantless wiretapping and calls on him to release documents relating to the legality of the NSA’s monitoring of American’s calls and email without warrants.

We urge senators to talk to their constituents about what the Fourth of July means to them. Think about liberty and abuse of power under the Bush administration.

We encourage members of the ACLU to contact their senators and explain that they want the government to get a warrant before monitoring their phone calls or their emails.

When the Senate returns from recess, we exhort senators to rely on the tried and true FISA, which has worked well for 30 years. If technical adjustments need to be made then let’s have a narrowly tailored bill not drafted by the telephone companies.