July 2007: Taking a Crack at Cocaine Sentencing

Washington Watch | July 2007
By Bruce Moyer

In 1986 Congress, as part of a federal "get tough" approach toward drugs and violent crime, significantly increased prison penalties for individuals convicted of dealing crack cocaine. Under the sentencing framework that has remained in place for the last 21 years, convicted crack traffickers receive the same mandatory prison sentence that persons possessing 100 times as much powder cocaine receive. In other words, the law requires a federal judge to impose a minimum five-year prison sentence for trafficking five grams of crack cocaine (or one-fifth of an ounce, the weight of two sugar packets), but it takes at least 500 grams of powder cocaine (or more than a pound) to warrant the same sentence.

The crack-powder 100:1 sentencing differential has come under increasing criticism from members of Congress, civil rights organizations, criminal defense advocates, and a growing number of federal judges. The issue bears racial overtones, because most crack cocaine offenders are black. Advocates for reducing the disparity between sentences for dealing crack cocaine and those for dealing powder cocaine point to crime statistics that show that crack tends to be a drug used more in urban communitiesand by minorities, whereas powder cocaine is used more frequently by affluent whites. Black Americans, in fact, make up 80 percent of those sentenced for trafficking in crack. And although Congress’ stated intent was to target high-level cocaine traffickers, critics say the outcome has been just the opposite. A U.S. Sentencing Commission report issued in 2002 found that only 15 percent of federal cocaine traffickers were high-level traffickers, whereas more than 70 percent of crack defendants were low-level street-level dealers, couriers, or lookouts.

Efforts in Congress to change the crack-powder sentencing differential have failed each time for various reasons over the past two decades. The Clinton and both Bush administrations have opposed any change. But now a combination of factors may bring about a narrowing of the sentencingdisparity. The Democratic takeover of Congress, growing Republican interest in sentencing reform, renewed action by the U.S. Sentencing Commission, and forthcoming interpretations of the sentencing law by the Supreme Court all may converge to shed greater attention on the sentencing issue.

In the Senate, Republican proposals—notably those presented by Sen. Jeff Sessions (R-Ala.) and Sen. Orrin Hatch (R-Utah)—would lower the crack-powder ratio to 20:1. And Sen. Joseph Biden (D-Del.), chairman of the Judiciary Subcommittee on Crime and Drugs, reportedly is preparing legislation that would set the ratio even lower. House Democrat Charles Rangel (D-N.Y.)already has introduced a bill that makes the ratios equal. Rep. Bobby Scott (D-Va.), chairman of the House Judiciary Subcommittee on Crime, has long maintained that sentencing triggers for crack and powder cocaine should be equalized.

Meanwhile, on May 1, the U.S. Sentencing Commission unveiled a change in the sentencing guidelines that is set to go into effect in November unless Congress intervenes. The change modifies the drug quantity thresholds for persons convicted of crack possession, a step toward lessening the disparity. And in a May 15 commission report on cocaine sentencing, its fourth such report in the last 12 years, the commission urged Congress to repeal mandatory prison time for simple possession of crack, the only drug that triggers prison time for mere possession. The commission also recommended that Congress increase the amount of crack required to trigger obligatory five-year or longer prison terms as a way to focus on major drug traffickers.

The Supreme Court also elevated the issue on June 11, when it announced that, in the next session, it will hear a case testing whether federal judges may consider the alleged fairness of the crack sentencing law when imposing punishment. The Court’s action comes amid increasing opposition by some federal judges to the severity of the mandatory minimum penalties. Even though the case, Kimbrough v. U.S., 06-6330, does not involve the constitutionality of the statute, it poses the post-Booker question of whether a district court may deviate from the harsh guidelines on crack crimes and impose a lesser sentence, based on the judge’s disagreement with the reasonableness of the guidelines dealing with cocaine. The Fourth Circuit in overturning the district court ruled that a sentence outside the guidelines range is presumed to be unreasonable when it is based on disagreement over the crack-powder disparity. If the Court agrees with the district court and permits policy disagreements to be "reasonably" incorporated into sentencing decisions, experts believe the decision could have significant ramifications on sentencing cocaine offenders.

Bruce Moyer is government relations counsel for the FBA.
© 2007 Bruce Moyer. All rights reserved.

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