Crack/Powder Cocaine Disparity

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Feature: Supreme Court Weighs Arguments on Limits of Judicial Discretion in Sentencing

The US Supreme Court Tuesday heard oral arguments in a pair of drug cases that will help clarify how much discretion federal judges have in sentencing under federal sentencing guidelines. When rendered, the court's opinion could impact the tens of thousands of people sentenced in the federal courts each year.
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While one of the cases involves a man sentenced under the crack cocaine laws, which punish crack much more severely than powder cocaine, the court's decision will have no impact on the federal mandatory minimum sentence laws under which many drug offenders are subjected to lengthy prison sentences.

The court's taking up the two sentencing guideline cases comes as the nation's quarter-century-long experiment with mass incarceration is under increasing pressure. The federal prison population has expanded nearly ten-fold from 24,000 prisoners in 1982 to more than 200,000 this year, more than half of them drug offenders under the harsh regime of sentencing guidelines and mandatory minimum sentences.

The US Sentencing Commission is set to reduce the guidelines' crack-powder cocaine sentencing disparity administratively November 1 unless Congress acts to block it, though it has not yet decided whether to make the change retroactive. While the proposed reduction is slighter than advocates have called for, if made retroactive it would help about 19,500 current prisoners, most notably those serving the longer sentences, by an average of 27 months or relief -- 1,315 current prisoners would receive sentences reductions of 49 months or more. At least three bills addressing that disparity have been filed in Congress. And just yesterday, Sen. Jim Webb (D-VA), a member the Joint Economic Committee, held a hearing titled "Mass Incarceration in the United States: At What Cost?"

The Supreme Court threw the federal sentencing structure into a sort of judicial chaos when it ruled two years ago in Booker v. US, and a related case, US v. Fan Fan, that federal sentencing guidelines, which had for the past two decades limited judges' sentencing decisions to finding the proper box on a sentencing grid, were no longer mandatory, but only advisory. Since then, federal district and appellate courts have struggled to determine just what that means, with some judges sometimes handing out sentences below the guidelines, which have in turn sometimes been overturned on appeal.

The two cases before the court represent different aspects of the federal sentencing conundrum. In Gall v. US, Brian Gall was convicted of conspiracy to sell ecstasy in Iowa, but rather than sentence him to the 30-37 months in prison suggested by the guidelines, his sentencing judge gave him probation, noting that he had walked away from the conspiracy years earlier and led an exemplary life since. The probationary sentence was overturned by the 8th US Circuit Court of Appeals in St. Louis.

In Kimbrough v. US, Derrick Kimbrough was convicted of selling crack and powder cocaine in Virginia. Citing Kimbrough's military service and the controversy over the crack-powder cocaine sentencing disparity, his trial judge sentenced him to the mandatory minimum 15 years instead of the 19-22 years suggested by the guidelines. His sentence, too, was overturned, this time by the US 4th Circuit Court of Appeals in Richmond.

In Gall, the appeals court held that such an "extraordinary" departure from the guidelines required an "extraordinary" justification. In Kimbrough, the appeals court held that judges could not reject a guidelines sentence because of their disagreement with underlying sentencing policy.

In oral arguments in the two cases Tuesday, the court displayed some of the same confusion and ambivalence its previous sentencing rulings have generated on the federal bench. The court is caught between two seemingly irreconcilable goals: to ensure similar sentences for similar offenses, and to restore a measure of discretion to judges.

"It may be quite impossible to achieve uniformity through advisory guidelines, which is why Congress made them mandatory," Justice Antonin Scalia observed. But Scalia has led the bloc of the court that has moved to undo the mandatory federal guidelines scheme.

Justice Stephen Breyer, who helped author the guidelines and remains their strongest proponent on the court, accused Kimbrough's counsel, Michael Nachmanoff, of not offering the court a way out of its dilemma after Nachmanoff insisted that Booker required that judges be granted reasonable flexibility." You're saying either we have to make it [the sentencing guidelines] unconstitutional," he said, "or you have to say anything goes."

"Your position is not anything goes," Scalia jumped in in Nachmanoff's defense. "It's anything that's reasonable goes."

That led Justice Anthony M. Kennedy to ask, "How do we define 'reasonable?'" And so the argument turned in circles.

For his part, Justice Department lawyer Michael Dreeben, who argued both cases, argued that Congress intended to punish crack cocaine more seriously than powder, and judges should heed Congress' will. "For a judge to say Congress is crazy," Dreeben said, "is a sort of textbook example of an unreasonable sentencing factor."

"The guidelines are only guidelines. They are advisory," Scalia shot back, adding that sometimes sentences were too long.

While the tenor of oral arguments suggested a favorable ruling may be coming, especially for Kimbrough, observers of the court were reluctant to speculate. But they were not reluctant to talk about what it all means.

"Everyone is struggling" with the federal sentencing conundrum, said Doug Berman, professor of law at the Ohio State University Moritz College of Law and author of the Sentencing Law and Policy blog. "Most prominently, they are trying to figure out what to make of this opaque standard of reasonableness," he said.

"If the Supreme Court reverses the circuit courts and upholds the trial courts, emphasizing the discretion district court judges have to reduce sentences below the guidelines, that could have a significant impact, especially on first offenders and others with mitigating factors," Berman said.

"The national debate over the excessive penalties prescribed under the federal sentencing guidelines for low-level crack cocaine offenses has infiltrated Congress, the advocacy community and now the US Supreme Court," said Marc Mauer, executive director of The Sentencing Project. "There is nearly universal agreement that current sentences for crack cocaine offenses are unfair and ineffective. The court's action will certainly influence the policy debate," he added.

"The Supreme Court's consideration of the magnitude of discretion afforded to federal sentencing judges is a step towards creating a more just sentencing system," said Mauer. "In light of recent events in Jena, Louisiana, and concerns about disparity within the justice system, a new consciousness about the unfairness and ineffectiveness of our criminal justice system has emerged," Mauer continued.

"These cases have to be considered against the backdrop of extraordinarily long terms for minor drug offenders," Berman said. "That the government can argue that sending Kimbrough to prison for 15 years is unreasonably lenient and the length of that sentence hardly gets questioned suggests that everyone has drunk the federal sentencing guideline kool-aid," he said.

For some groups with a deep interest in justice in sentencing, whatever the Supreme Court does won't be enough. "Whatever the court decides, the real solution to unjust crack sentences lies in Congress," said Mary Price, vice president and general counsel for Families Against Mandatory Minimums. "Even if the court permits judges to avoid unjust crack sentences called for by the guidelines, many defendants will still be sentenced under unjust mandatory minimum statutes. Congress made a mistake by basing sentencing almost exclusively on one factor -- drug quantity. Judges should be permitted to sentence based on all facts about the defendant and the offense, not just quantity. These cases show why mandatory minimum sentencing laws are unwise, unnecessary, and unjust."

It goes even deeper than that, said Chuck Armsbury of the November Coalition, an anti-prohibitionist group that concentrates on freeing drug war prisoners. "No amount of Supreme Court tinkering with the sentencing guidelines can guarantee an end to sentencing disparities," he said. "Most of the sentencing disparity is due to rules and results of deal making by informants, police and prosecutors working together secretly. The justices are unlikely to admit they can't determine the fairness of a hidden system's operations," he argued. "To fix this broken system would mean to rein in police, prosecutors and the snitch system producing substantial differences in drug sentences."

That's not going to happen through the Supreme Court chipping at the edges of draconian sentencing, Armsbury said. "Even if they win, the cases under review this week will likely join a long line of previous Supreme Court cases that failed to correct wrongful sentencing practices or result in the release of thousands of over-incarcerated people, the great majority convicted of drug crimes."

Still, if further reform of the draconian federal sentencing laws comes out of this pair of cases, some drug defendants will get lesser sentences, and that's a good thing. But as the critics point out, it's not enough. The mass incarceration juggernaut has been speeding along for decades now, and it's going to require more than some Supreme Court decisions tinkering at the edges to achieve fundamental change.

Obama Comes Out Against Mandatory Minimums

It's about time. We've been concerned about Obama's perspective on drug policy, but it looks like he's coming around:

Washington, D.C. (AHN) - Sen. Barack Obama (D-IL) outlined his civil rights platform Friday, saying that if elected president, he would target racial disparities in the U.S. justice system through a host of measures, including relaxing drug sentencing laws.

"We have a system that locks away too many young, first-time, non-violent offenders for the better part of their lives - a decision that's made not by a judge in a courtroom, but all to often by politicians in Washington and state capitals around the country," Obama said. [AHN]

Obama also pledged to address the crack/powder sentencing disparity, which he's sounded reluctant to do previously.

How could anyone disagree with him? Sentencing reform has become standard fair for the democratic candidates, and I've yet to hear the republicans dispute it. Maybe, just maybe, this one issue can escape the icy death grip of partisan politics. Maybe we can all just agree to stop treating petty drug offenders like murderers and rapists. Can we give this a try? Please?

(This blog post was published by's lobbying arm, the Drug Reform Coordination Network, which also shares the cost of maintaining this web site. DRCNet Foundation takes no positions on candidates for public office, in compliance with section 501(c)(3) of the Internal Revenue Code, and does not pay for reporting that could be interpreted or misinterpreted as doing so.)
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It's Not Fair, It's Not Working: The Crack/Powder Cocaine Disparity and Racial Inequality in the Criminal Justice System

The George Washington University Law School is holding a forum to plan action to address the injustice in the disparity in federal crack and powder cocaine sentences. The discussion will focus on legislative, legal and grassroots strategies. For more information, contact Leah Kane, GWU Law School '08 at (347) 251-2111. An out-of-date 1986 federal law punishes crack cocaine offenders much more severely than other drug offenders. Ten African-Americans are prosecuted under this law for every white person, even though two-thirds of the nation's crack users are white. On October 2, 2007 the U.S. Supreme Court will hear argument whether Federal judges can depart from Federal sentencing guidelines in crack cocaine cases because they disagree with Congress' determination that the quantity of cocaine that triggers a given mandatory sentence is 100 times greater than the quantity of crack that triggers a similar sentence (Kimbrough v. U.S.). On November 1, 2007, new federal sentencing guidelines will take effect that will shorten federal crack cocaine sentences. No legislation to block this change was introduced. A different proposal to reduce crack sentences in 1995 was rejected by Congress. New legislation has been introduced in the Congress to adjust the quantities of crack cocaine and powder cocaine and the sentences they trigger, but no hearings have yet been scheduled. Speakers include: Judge Arthur L. Burnett, Sr., National Executive Director, National African American Drug Policy Coalition Ryan King, Policy Analyst, The Sentencing Project Jesselyn McCurdy, Legislative Counsel, American Civil Liberties Union Eric E. Sterling, President, Criminal Justice Policy Foundation Jasmine Tyler, Deputy Director of National Affairs, Drug Policy Alliance The moderator is Professor Paul Butler, George Washington University Law Center, former Assistant United States Attorney Please join us at this important forum. A reception follows.
Wed, 10/03/2007 - 5:00pm
2023 G Street NW Lisner Hall, Room 201
Washington, DC 20006
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Fairness of Crack Cocaine Sentencing Fundamental to Oct. 2 Supreme Court Case

[Courtesy of The Sentencing Project] At a time of heightened public awareness regarding excessive penalties and disparate treatment within the justice system, the United States Supreme Court will hear oral argument tomorrow in a case that touches on the controversial crack cocaine sentencing debate. The case, Kimbrough v. United States, explores the reasonableness of a federal district judge's below-guideline sentencing decision based on the unfairness of the 100 to 1 quantity disparity between powder and crack cocaine. The Sentencing Project submitted an amicus brief on behalf of the petitioner, Derrick Kimbrough, which argues that current drug guidelines inappropriately limit the factors that judges may consider at sentencing. Mr. Kimbrough's case stems from his 2005 guilty plea in Norfolk, VA, for possession with intent to distribute 56 grams of crack cocaine and possession of a firearm. Kimbrough, a Desert Storm veteran with no previous felony convictions, was prosecuted in federal court where penalties involving crack cocaine are harsher than in state systems. As a result, instead of receiving a sentence of about 10 years under Virginia law, he faced a federal sentencing guideline range between 19 and 22 years. Federal District Judge Raymond A. Jackson, who presided over Kimbrough's case, called the recommended guideline sentence "ridiculous" and instead sentenced Kimbrough to 15 years, the minimum required by mandatory sentencing policies. Tomorrow, the Court will consider whether Judge Jackson's decision was "reasonable" according to federal sentencing standards. For more information, visit or download the amicus brief at
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Chris Dodd Advocates Marijuana Decriminalization

Nothing to see here. Just another presidential candidate appealing to voters by observing the absurdity of the way marijuana users are treated in America.

Dodd also pledges to protect medical marijuana and reform the crack/powder sentencing disparity. Notice how he lumps these issues together. Ladies and gentlemen, meet the democratic drug policy platform.

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DPA: A Tipping Point in Congress - Take Action

If you told me a year ago we were near a tipping point in Congress on rolling back one of the worst excesses of the war on drugs, I probably would have thought you were crazy. But the movement to eliminate the crack/powder cocaine sentencing disparity has grown so strong that Senators are tripping over themselves to support reform. Three different bi-partisan reform bills have already been introduced in the Senate - all by unlikely allies - and the Judiciary Committee is set to have hearings on the issue in September. Please take a minute today to fax your Senators and help build momentum against these draconian mandatory minimums.


Take action now.


Crack cocaine and powder cocaine are different forms of the same drug, and have similar effects on the brain and nervous system. Federal law, however, sets a 100 to 1 sentencing disparity between the two forms.


This disparity, enacted in the 1980s at the height of drug war hysteria, was based largely on the myth that crack cocaine was more dangerous than powder cocaine and that it was instantly addictive and caused violent behavior. Since then, copious amounts of scientific evidence and an analysis by the U.S. Sentencing Commission have shown that these assertions were not supported by sound data and were exaggerated or outright false.


Regardless of why the disparity was enacted, its impact is clear: tremendous racial disparities in the criminal justice system, wasted tax dollars, and a less safe America.


The solution is clear: Completely eliminate the disparity. Raise the amounts of crack cocaine it takes to trigger long sentences to equal those of powder cocaine, and reprioritize federal drug war agencies towards violent drug cartels.

DPA is launching a major grassroots campaign to boost support for reform, including holding town hall forums in key Congressional districts. We've already held one forum in
Alabama in conjunction with the ACLU; and we're planning forums in California, New York, and Texas. Additionally, we've teamed up with The Sentencing Project, the ACLU, and the Open Society Policy Center to launch a public relations campaign (you can view the campaign's really cool print ads here).


Three U.S. Senators have already introduced reform bills - Senator Jeff Sessions (R-AL), Senator Orrin Hatch (R-UT), and Senator Joe Biden (D-DE). The Chair of the Senate Judiciary Committee, Senator Patrick Leahy (D-VT), has pledged to have hearings on the issue in September. There is growing bi-partisan support for reform.


The Sessions bill (S. 1383) would reduce the crack/powder sentencing disparity to 20 to 1 by lowering penalties for crack cocaine and raising penalties for power cocaine. Since Hispanics are disproportionately prosecuted for powder cocaine offenses, the practical effect of the Sessions bill would be to reduce racial disparities for blacks, while increasing them for Hispanics. The Hatch bill (S. 1685) would reduce the disparity to 20 to 1 by lowering penalties for crack cocaine and leaving powder penalties unchanged (it is, thus, significantly better than the Sessions bill). The Biden bill (S. 1711) would completely eliminate the disparity by lowering crack penalties to equal those of powder.

Of the three bills, Senator Biden's bill is the only one to completely eliminate the disparity; and it would accomplish this without subjecting more Americans to draconian mandatory minimum sentences. His bill is the one the Senate should pass. Please take a minute to fax your Senators and urge them to co-sponsor Senator Biden's reform bill (S. 1711).


Take action now.


If you live in Delaware, please take a moment to call Senator Biden's Wilmington office and thank him for introducing a bill to eliminate the crack/powder cocaine sentencing disparity. The office number is 302-573-6345.


More Information:


While it takes just five grams of crack cocaine (about two sugar packets worth) to receive a five-year mandatory minimum sentence, it takes 500 grams of powder cocaine to receive the same sentence. 50 grams of crack cocaine triggers a ten-year sentence, but it takes 5,000 grams of powder cocaine - 5 kilos - to receive that much jail time.


Even though 66% of crack users are white, blacks make up more than 80% of federal defendants sentenced for crack cocaine offenses. No other federal law is more responsible for gross racial disparities in the federal criminal justice system.


And although the crack mandatory minimums were enacted to punish major traffickers, the vast majority of people subjected to them are low-level offenders. A recent report by the U.S. Sentencing Commission found that almost 70% of federal crack cocaine defendants had only low-level involvement in drug activity.


Washington, DC
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Drug War Prisoners: 86-Year-Old Alva Mae Groves Dies Behind Bars

Alva Mae "Granny" Groves, the 86-year-old North Carolina grandmother sentenced to 24 years behind bars after refusing to testify against her children, died last week at a federal prison hospital in Texas. Federal prison officials denied her request to die at home, saying her charges were too serious to allow compassionate release.
Alva Mae Groves (courtesy
Groves had already served 13 years in prison after pleading guilty to conspiracy to possess with intent to sell cocaine and aiding and abetting the trading of crack cocaine for food stamps. She was 74 when she went to prison. She always maintained that she had been punished for failing to cooperate with federal prosecutors to lock up her children for life.

"My real crime... was refusing to testify against my sons, children of my womb, that were conceived, birthed and raised with love," Groves wrote in a 2001 letter to November Coalition, an anti-prohibitionist group that concentrates on freeing federal drug war prisoners.

Law enforcement officials continue to maintain that Groves played a key role in a cocaine conspiracy conducted by family members, but family members have always said she did nothing more than look the other way. Five members of her family were imprisoned in the investigation. Her son, Ricky Groves, is doing a life sentence, while Groves, her older daughter, and her granddaughter were all sent to federal prison in Tallahassee, Florida.

Groves became one of the poster children for sentencing reform as reaction grew to the drug war excesses of the 1980s and 1990s. But any reforms will come too late for the grandmother who loved tending her garden.

"It's a relief she's dead, but it's a hurt, a real hurt we weren't with her," daughter Everline told the Charlotte Observer. "What could she have hurt?"

Groves dreamed of getting out of prison, planting new gardens, and seeing grandchildren born while she was behind bars, but never had the chance. Her kidneys began failing early this year, and she was transferred to a federal prison hospital in Fort Worth.

Groves did not want to die in prison, she told the November Coalition in a recent letter. "I realize everyone has a day to die; death is a fate that will not be cheated. But I don't want to die in prison. I want to die at home surrounded by the love of what's left of my family."

Last winter, the Groves family asked for compassionate release so she could die at home. The family wrote to every official they could think of and enlisted the help of groups like the November Coalition, to no avail. As Groves' daughters leaned over her bed on July 19, prison officials handed them a letter denying the request.

Coalition Launches Public Education Crack Cocaine Sentencing Initiative

The Sentencing Project and coalition partners, the American Civil Liberties Union, Open Society Institute and Drug Policy Alliance, have launched It's Not Fair. It's Not Working, a national campaign to educate the public about the crack and powder cocaine sentencing disparity. The goal is to encourage the American public to make their voices heard in order to reform the mandatory penalties for crack and powder cocaine offenses to make them more equitable and fair. An important element of the initiative will be to engage the public through events such as town hall meetings, national conferences, hearings and other opportunities. All activities will be designed to educate and raise awareness. The It's Not Fair. It's Not Working campaign will also feature three advertisements: It's Not Fair ( features Karen Garrison, mother of twin sons who received long sentences for non-violent crack cocaine offenses just months after they graduated from college. Something's Wrong with the Math ( points out that an individual only needs to possess 5 grams of crack cocaine to receive the same 5 year mandatory sentence as someone who sells 500 grams of powder cocaine. There's a Crack in the System ( supports the American ideal of a fair and appropriate sentencing system while at the same time informing the public that possessing a small amount of crack cocaine can carry an excessive penalty. Today a new consciousness about the unfairness and ineffectiveness of harsh crack cocaine mandatory sentences has emerged among advocates, policymakers, judges and the United States Sentencing Commission. At a time of bipartisan interest in this issue, Congress may be on the verge of mending the crack injustice. Since May, three bills have been introduced in the Senate that would reduce sentences for low-level crack cocaine offenses: · Senator Joseph Biden (D-DE) for the first time introduced a bill to equalize penalties for crack and powder cocaine offenses. · Senator Orrin Hatch's (R-UT) new proposal would reduce the sentencing disparity between crack and powder by raising the trigger weight for a five-year mandatory crack sentence from five grams to 25 grams. · Senator Jeff Sessions' (R-AL) bill would reduce the sentencing disparity also but expand mandatory sentencing for powder cocaine offenses. The Sentencing Project is actively working to advance crack cocaine sentencing reform in Congress this year. The support of national, state and local organizations is critical to our efforts. We urge organizations to endorse a sign-on letter to U.S. House and Senate Judiciary members calling for legislation eliminating mandatory minimum sentences for low-level crack cocaine offenses. You can submit your organization's endorsement of the crack cocaine sentencing reform letter at: Please include your organization's name, the name and title of signer, and the signer's e-mail address and phone number. For more information about It's Not Fair. It's Not Working, and The Sentencing Project's work to end the sentencing disparity between crack cocaine and powder cocaine, go to
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Republican and Democratic Senators Query Gonzales on Crack Sentencing Views

User "puregenius" reports over in the Reader Blogs that Republican and Democratic senators -- Jeff Sessions and Pat Leahy -- queried Alberto Gonzales about his views on the crack/powder cocaine sentencing disparity, in last Tuesday's Senate Judiciary Committee hearing on Dept. of Justice oversight. Short answer -- he likes it, they don't. Update: Just saw this link on TalkLeft to the NAACP Legal Defense Fund's amicus brief to the Supreme Court in the case of Derrick Kimbrough, a federal prisoner serving time on a crack cocaine offense. LDF contends that "The Crack Cocaine Sentencing Guidelines Have Resulted in Vast Racial Disparities" and "The Racial Disparities Associated with the Crack Cocaine Sentencing Guidelines Have Caused Widespread Distrust of the Law.
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Heavy time for drug lightweights

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San Francisco Chronicle

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