Senator Durbin brings up a question of tremendous real world importance that is almost never discussed in these hearings–our criminal justice system, and sentencing in particular.
He began with the disparate sentences under federal law for crack cocaine as opposed to powder cocaine (for example, an offense involving 1 gram of crack triggers the same sentence as one involving 100 grams of powder cocaine), and asks whether something should be done about it. (Those charged in cases involving crack are overwhelmingly the members of minority groups; that is not true of charges involving powder cocaine.)
Kagan points out that this is a policy question, and that when she served in the Clinton White House she worked on proposals to reduce the disparity.
Durbin moves on to the death penalty, pointing out that Justices Blackmun and Stevens at the end of their service on the Court concluded that given the way it is administered, the imposition of the death penalty violated the Constitution. Kagan refuses to sign on to that view, saying that she accepts the Court’s decisions upholding the constitutionality of the death penalty as settled precedent.
