Crack/Powder Cocaine Disparity

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ALERT: Congress Must Pass Sentencing Reform

Twenty-five years ago Congress enacted severe mandatory minimum sentences, condemning thousands of mostly low-level, mostly nonviolent drug offenders to years, sometimes decades in prison. In part because of these and similar "sentencing guideline" penalties, the United States now suffers from an incarceration rate unprecedented in the history of our own country or any other.

Last year Congress took a modest step in the right direction, unanimously passing the Fair Sentencing Act -- raising the quantities of crack cocaine needed to trigger certain infamous five- and ten-year sentences, and eliminating mandatory minimums for crack possession. But much, much more is needed to address these unjust and exorbitantly expensive sentencing laws.

Please write Congress today to call for passage of the following important bills:

  • H.R. 2303, the "Major Drug Trafficking Prosecution Act," sponsored by Rep. Maxine Waters (D-CA) -- eliminates mandatory minimums to reduce the incentive prosecutors have to go after large numbers of low-level offenders.
  • H.R. 2316 and H.R. 2242, sponsored by Rep. Bobby Scott (D-VA), bills to make last year's crack sentencing reforms retroactive; and to continue the reform by eliminating "cocaine base" from the federal code entirely, thereby reducing penalties further to reach the same level as powder cocaine offenses.

When you are done, please make a call, send a letter or pay a visit to your US Representative and your two US Senators to urge them to pass sentencing reform -- you can reach them via the Congressional Switchboard at (202) 224-3121, or look them up on our web site. Please use our tell-a-friend form to spread the word about this important legislation too.

Every day that passes without sentencing reform is a day that thousands of people who don't need to be in prison, who may have never deserved to go there, continue to languish needlessly behind bars, separated from their friends and families who want them back. Thank you for taking action.


Ongoing reporting on drug sentencing is available on our web site
here, or by RSS feed here.

One-Year Anniversary of the Fair Sentencing Act

The Fair Sentencing Act of 2010 was signed a year ago today, providing the first relief for federal crack cocaine defendants. Sentencing reform, civil rights and racial justice advocates had worked on the issue for nearly 20 years.

Crack cocaine sentences are still more severe than those for powder cocaine -- it still takes 18 times as much powder cocaine to trigger some notably severe sentences as it does of crack cocaine. So the efforts continue. We have an online action alert on this issue, not yet publicized, but ready for action here.

Federal Crack Prisoners Will Get Sentence Cuts [FEATURE]

Thousands of inmates imprisoned on federal crack cocaine charges will be able to seek sentence reductions and early release after the US Sentencing Commission vote unanimously June 30 to make changes in federal sentencing guidelines for crack offenders it had approved earlier this year retroactive. About 85% of those crack prisoners are black.

Federal Correctional Institution Milan, Milan, Michigan. Soon there will be room at the inn. (Image: Wikimedia.org)
The changes in the sentencing guidelines came after Congress last year passed the Fair Sentencing Act reducing the notorious disparity between crack and powder cocaine offenses. Under drug laws passed amidst the crack hysteria of the mid-1980s, people caught with as little as five grams of crack faced a mandatory minimum five-year prison sentence, while people caught with powder cocaine had to be carrying 100 times as much of the drug to garner the same sentence.

The law passed last year reduced the sentencing disparity from 100:1 to 18:1, but did not eliminate it. After passage of the law, the Sentencing Commission proposed a permanent amendment to the federal sentencing guidelines to implement the new law, which would result in sentence reductions for newly convicted crack offenders. But that amendment provided no relief for those already serving harsh crack sentences -- until now.

With the Sentencing Commission's vote Thursday, retroactivity for current crack prisoners will go into effect the same date as the proposed amendment, November 1, unless Congress acts to undo it. But despite the grumblings of a few Republicans, that appears unlikely.

"In passing the Fair Sentencing Act, Congress recognized the fundamental unfairness of federal cocaine sentencing policy and ameliorated it through bipartisan legislation," noted Commission chair, Judge Patti Saris. "Today's action by the Commission ensures that the longstanding injustice recognized by Congress is remedied, and that federal crack cocaine offenders who meet certain criteria established by the Commission and considered by the courts may have their sentences reduced to a level consistent with the Fair Sentencing Act of 2010."

While not every crack offender in the federal prison system will be eligible to seek a lower sentence, more than 12,000 will, and they will see an average sentence reduction of slightly more than three years. That should result in a cost savings of more than $200 million over the next five years, the Commission said.

But with an average crack sentence of about 13 ½ years, current crack prisoners will still serve a harsh average of about 10 ½ years. [Editor's Note: The original version of this article inadvertently understated those numbers.] And many future crack offenders will still be handed down mandatory minimum five- or 10-year sentences based on the amount of crack involved in their offenses.

While advocates lauded the commission's move, they noted that there was still more work to be done. Still, for many, some of whom have been working to redress the injustice for years, Thursday was a day of joy and relief.

"I am thrilled for our members and their families who suffered under a sentencing scheme that Congress admitted was fundamentally flawed, said Julie Stewart founder and director of Families against Mandatory Minimums. "I am also grateful to the members of the Sentencing Commission who responded to facts, not fear. The Commission once again has played its rightful role as the agency responsible for developing sound, evidence-based sentencing recommendations. In fact, if Congress had listened to the Commission fifteen long years ago when it first called for crack sentencing reform, today’s vote might not have been necessary," said Ms. Stewart.

But noting that Thursday's vote only applied retroactivity to relaxed sentencing guidelines and not to pre-Fair Sentencing Act mandatory minimums, Stewart called on Congress to make the act retroactive as well, bringing relief to those serving mandatory minimum sentences.

"The ball is now in Congress's court," Stewart said. "To finish the job, Congress must now make the mandatory minimum sentence for crack cocaine retroactive."

While calling the commission's action "the right thing," ACLU Washington Legislative Office director Laura Murphy also said further reform was needed. "Making these new guidelines retroactive will offer relief to thousands of people s who received unfair sentences under the old crack cocaine law. However, despite today's victory, sizeable racial and sentencing disparities still exist, and it is time for our country to seriously rethink mandatory minimums and a one-size-fits-all approach to sentencing. Based on little more than politics and urban myth, the sentencing gap between powder and crack cocaine has been devastating to our African-American communities."

The change has been a long time coming, said the Drug Policy Alliance (DPA). "Since 1995, the US Sentencing Commission has, in four reports to Congress, requested that Congress raise the threshold quantities of crack that trigger mandatory minimums in order to ease the unconscionable racial disparities in sentencing," said Jasmine L. Tyler, DPA deputy director of national affairs. "This vote to provide retroactive relief to the thousands of defendants whose sentences the Commission has consistently condemned for the past seventeen years."

"The difference between crack and powder cocaine is cultural, not chemical," said Jim Lavine, president of the National Association of Criminal Defense Lawyers. "The Commission's own research indicates that over 80 percent of the nonviolent offenders who will benefit from the new guideline are African-American or Hispanic. We can't give back all the time that offenders served under the previous guidelines, but reducing prison time for those persons still incarcerated is a significant recognition of the unfairness of the old law," he said. "A civilized society doesn’t mete out punishment based on a defendant's culture or skin color."

Some Republican lawmakers had opposed retroactivity, arguing that early releases would pose a threat to the public safety, but the Sentencing Commission reported that prisoners released early had no higher rate of recidivism than those who served more time. It also sought to reassure nervous conservatives that each case would be carefully reviewed.

"The Commission is aware of concern that today’s actions may negatively impact public safety," said Judge Saris. "However, every potential offender must have his or her case considered by a federal district court judge in accordance with the Commission’s policy statement, and with careful thought given to the offender's potential risk to public safety. The average sentence for a federal crack cocaine offender will remain significant at about 127 months," she explained.

The Sentencing Commission's vote is a significant victory against prejudice and injustice and marks another milestone in the retreat from the "lock 'em up" mania that has dominated the officials response to illicit drug use and sales for decades. But the fact that the federal courts are still going to be sending people to prison for a decade for slinging some rocks, or even, in some cases, merely possessing them, shows how far we still have to go.

Washington, DC
United States

Supreme Court Holds Crack Penalties Apply to "Cocaine Base"

In a unanimous ruling Thursday, the US Supreme Court upheld a 10-year federal prison sentence for possession of cocaine base, rejecting an appeal that harsher penalties for crack cocaine did not apply to "cocaine base." The case was DePierre v. US, and it concerned the 1986 Anti-Drug Abuse Act, passed at the height of mid-1980s crack hysteria.

The Supreme Court says "cocaine base" means more than just crack. (Image via Wikimedia.org)
Under that law, possession of 50 grams of "cocaine base" was punishable by a 10-year mandatory minimum prison sentence, while it took five kilograms of powder cocaine (cocaine hydrochloride or "cocaine salts") to garner the same sentence. While those penalties have been imposed almost exclusively on crack cocaine offenders, the words "crack cocaine" do not appear in the law. Instead the harsher penalties are imposed on those who possess substances or mixtures containing "cocaine base."

Frantz DePierre got busted for selling more than 50 grams of "cocaine base" to an undercover agent in Massachuseets in 2005. At trial, a federal judge rejected his request to instruct the jury that "cocaine base" meant only crack cocaine, and a federal appeals court in Boston agreed with the trial judge. And now the US Supreme Court has endorsed those lower court rulings.

"Cocaine base," as used in the 1986 law, "means not just 'crack cocaine,' but cocaine in its chemically basic form," Justice Sotomayor held, as the court upheld DePierre's conviction and 10-year prison sentence. That basic form includes "the molecule found in crack cocaine, freebase, and coca paste," she continued. "On its plain terms then, 'cocaine base' reaches more broadly than just crack cocaine.

While Congress last year voted to substantially reduce -- although not eliminate -- the sentencing disparities between crack and powder cocaine, crack still earns you substantially more time than powder. And this ruling clarifies that those stiffer penalties apply to freebase and coca paste, as well as crack.

Washington, DC
United States

AG Holder Backs Early Release for Crack Cocaine Prisoners

In testimony before the US Sentencing Commission Wednesday, Attorney General Eric Holder gave his support to a proposal that could result in the early release of thousands of federal crack cocaine prisoners. The proposal would make retroactive last year's Fair Sentencing Act, which sharply reduced the disparities in sentencing between powder and crack cocaine offenses.

Attorney General Holder says yes to retroactivity only for some federal crack prisoners. (Image courtesy DOJ)
Under laws in effect since the crack panic of the mid-1980s, it took 500 grams of powder cocaine to garner a five-year mandatory minimum prison sentence, but only five grams of crack to earn the same time. The Fairness in Sentencing Act reduced that 100:1 disparity to 18:1, providing sentencing relief to future crack defendants.

But that law did not provide relief for the nearly 12,000 people currently serving federal crack sentences under the old laws. Prisoners and their families, civil rights activists, and drug reformers have been calling on the Sentencing Commission to make the sentencing changes retroactive.

The harsh old crack laws have been especially brutal on black America. Although blacks make up less than half of all crack users, more than 80% of federal crack prosecutions have been aimed at black defendants, leading to charges of racism in the application of the law, if, arguably, not in its intent.

Holder told the commission that his experience as a federal prosecutor, federal judge, and now the country's top law enforcement officer, "compelled" him to seek to reduce disparities between crack offenders and powder cocaine offenders.

"There is simply no just or logical reason why their punishments should be dramatically more severe than those of other cocaine offenders," Holder said.

Holder recommended that the commission allow retroactively for only about 5,500 of the 12,000 federal crack prisoners, those without violent or extensive criminal records.

Also testifying before the commission was Marc Mauer, head of the Sentencing Project, a group that seeks reforms of harsh sentencing laws. Mauer said that if retroactivity was applied, the average crack offender would see a 37-month reduction in his sentence.

Retroactivity should be applied because there is "no meaningful pharmacological difference between the two drugs" and "large percentages" of low-level crack dealers are serving long sentences designed for serious traffickers.

Retroactivity could also begin to restore trust in the criminal justice in black America, Mauer said. "For many African Americans," Mauer said, "this fundamental unfairness has undermined the legitimacy of the criminal justice system."

The commission also received more than 37,000 letters and emails on the topic, the vast majority of them prisoners and their families supporting equality for crack and powder cocaine offenders and calling for retroactivity to be applied.

The Sentencing Commission is expected to vote later this month on whether to grant retroactivity under the Fair Sentencing Act. If it does, the action would become effective November 1. Then, prisoners or their attorneys could petition the sentencing judge for early release, or the judges or the director of the Bureau of Prisons could act unilaterally.

Washington, DC
United States

This Year's Top 10 Domestic Drug Policy Stories

A lot went on in the realm of drug policy reform in 2010. Here is our summation of what we think are the biggest stories of the year.

fire truck lent by Dr. Bronner's for SSDP/Prop 19 campus tour
Marijuana on the Verge -- Prop 19, Public Opinion, and the Looming Sea Change

California's tax and regulate marijuana legalization initiative, Proposition 19, ultimately failed to get over the top on Election Day, but it garnered 46.5% of the vote, the highest ever for a legalization initiative, and generated reams of media coverage, making it the most watched initiative of any in the land this year. The battle for Prop 19 also yielded the broadest coalition yet behind marijuana legalization, as unions, dissident law enforcement groups, and Latino and African-American groups got on the legalization bandwagon in a big way for the first time. Launched with over a million dollars of funding from Oakland cannabis entrepreneur Richard Lee, the initiative garnered significant additional support during the campaign's final months, including a late $1 million donation from George Soros, but too little and too late to make a difference in the nation's largest and most expensive media market. The coalition that came together around Prop 19 is vowing to stay together and work to place another initiative on the ballot, most likely in 2012.

If California has legalization on the ballot in 2012, activists in Colorado, Oregon, and Washington all took steps this year to ensure that it won't be alone. Ill-funded and controversial legalization initiatives missed making the ballot in Oregon and Washington this year, but organizers in both states have vowed to try again, and Sensible Washington, the folks behind this year's effort there, already have a pro-legalization billboard up on I-5 in the Seattle area. In Colorado, organizers bided their time this year amidst the medical marijuana explosion there, but are busy laying the groundwork for a legalization initiative there.

This year also saw a legalization bill pass out of the California Assembly Public Safety Committee in January, a first in the US. While that bill died later in the session, sponsor Tom Ammiano (D-SF), reintroduced it in March and it awaits further consideration in Sacramento. In New Hampshire, a decriminalization bill passed the House in March, only to be killed in a Senate committee in April, while in Washington state, legalization and decriminalization bills got a January hearing before dying in committee later that same month. In Rhode Island, a decriminalization bill was introduced in February and a state legislative commission endorsed it in March, but the bill went nowhere so far. Later in the year, the California legislature passed and Gov. Arnold Schwarzenegger signed a decriminalization bill there. And in November, a marijuana legalization bill passed the House in the US territory of the Northern Marianas Islands, marking the first time a legalization bill has passed a legislative chamber anywhere in the US. It was later defeated in the Senate. No legalization or decriminalization bills passed this year, but the day is drawing near.

A plethora of public opinion polls this year suggest why, as support for pot legalization is now hovering just under 50%. In January, an ABC News/Washington Post poll had support at 46%; in April, a Pew poll had it at 41%. By July, an Angus-Reid poll had support at 52%, while Rasmussen showed it at 43%. In November, a Gallup poll had support for legalization at 46%, its highest level ever and a 15 percentage point increase over just a decade ago. Some of these polls showed majority support for legalization in the West, which will be put to the test in 2012.

Medical Marijuana -- the Ongoing Battle

The acceptance of medical marijuana continued in 2010, as two states, New Jersey and Arizona, along with the District of Columbia, became the latest to legalize the medicinal use of the herb. It's worth noting, however, that medical marijuana is not yet being produced or consumed in any of those places, even though the New Jersey legislation was signed into law in January and the DC medical marijuana initiative was actually revived last year. To be fair, voters only approved the Arizona initiative in November, and regulators there have three more months to come up with enabling regulations.

But the acceptance is by no means complete, and resistance from recalcitrant law enforcement and local governments continues apace. A medical marijuana initiative in South Dakota and an Oregon initiative to create a system of state-licensed, nonprofit dispensaries both failed in November. And despite efforts to pass medical marijuana bills through numerous state legislatures, none beside New Jersey came to fruition this year. Bills have stalled in Alabama, Illinois, Maryland, New York, and Wisconsin, among others, even as they are continually pared back to be ever more restrictive in a bid to appease opponents.

Medical marijuana states that have less loosely written laws -- all via the initiative process, including California, Colorado, Michigan, and Montana -- proved to be highly contested terrain in 2010. The blossoming of hundreds of dispensaries in Colorado this year led to the passage of regulatory legislation this summer, while a similar, if more limited outbreak of envelope-pushing in Montana has legislators there vowing to rein in the industry when they reconvene next year. In Michigan, law enforcement in some locales has arrested people in apparent compliance with the state law. In all three states, battles have also broken out at the city or county level, especially over efforts to ban medical marijuana operations. These fights will continue.

California is a world of its own when it comes to medical marijuana. The most wide open of the medical marijuana states, which, thanks to the language of Proposition 215, allows for medical marijuana to be recommended for virtually anything, it is also the state where legal and political conflict over medical marijuana is most entrenched. Despite more than a decade of litigation, the legality of selling medical marijuana remains unclear, and depending on the attitude of local authorities, dispensaries can be -- and are -- subject to raids and prosecution. The medical marijuana community dodged a bullet in November when Kamala Harris defeated dispensary arch-foe Steve Cooley, the Republican Los Angeles County prosecutor. Meanwhile, in communities across the state, battles rage over banning dispensaries, or, in happier circumstances, over how to permit and tax them. And medical marijuana is increasingly recognized for the big business it is. A growing number of California towns and cities this year voted to tax medical marijuana, and Oakland gave the go-ahead for massive medical marijuana mega-farms, although it may now retreat in the face of rumblings from the Justice Department. None of this got resolved this year, and the fight over medical marijuana in the Golden State is unlikely to wind down any time soon.

The DEA Continues to Misbehave

And then there's the DEA. It was in October 2009 that the Justice Department released its famous memo telling the DEA to butt out if medical marijuana operations in states that had approved them where not violating state law. While DEA raids have certainly declined from their thuggish heyday in the Bush administration, they have not gone away. After a Colorado medical marijuana grower had the temerity to appear on a local TV news program showing off his garden, the DEA raided him in February. The DEA also hit Michigan medical marijuana operations at least twice, in July and again early this month. The DEA has also raided numerous California medical marijuana operations this year, including the first collective to apply for the Mendocino County sheriff's cultivation permit program and a number of beleaguered San Diego area dispensaries. In most cases, the DEA is relying on the cooperation of sympathetic local law enforcement and prosecutors. Making the DEA live up to the Holder memo is a battle that is yet to be won.

The Obama administration's nomination of acting DEA administrator Michele Leonhart is not a good omen. Despite a horrendous record at the DEA, including a stint as Special Agent in Charge in Los Angeles during the height of the Bush administration raids on medical marijuana facilities, and in St. Louis during the Andrew Chambers "supersnitch" perjury scandal, Leonhart's nomination has cleared the Senate Judiciary Committee and is likely to be approved by the Senate as a whole once she takes some actions to improve access to pain medications for seniors in nursing homes -- an issue on which Sen. Herb Kohl was said will cause him to place a hold on a floor vote until she and the agency address it.

Drug War Juggernaut Continues Rolling

While support for marijuana decriminalization and/or legalization continues to grow, and while a number of states have enacted sentencing reforms in response to fiscal pressures, the drug war juggernaut keeps rolling along, chewing up lives like so much chaff. US law enforcement made more than 1.6 million arrests on drug charges last year, more than half of them for marijuana offenses, marking the first year pot busts made up more than half of all drug arrests. The number is actually down slightly from the previous year, but only marginally so, as drug law enforcement keeps humming along. But in the current economic crunch, such a high level of enforcement and punishment may no longer be sustainable. A Pew report found that state prison populations had declined for the first time since the 1970s, if only by 0.4%, although the federal prison population, more than 60% of which consists of drug offenders, increased by 3.4%. Similarly, the Bureau of Justice Statistics reported than US jail populations had decreased for the first time in decades, dropping by 2.3% over the previous year. The tiny turnarounds are a good thing, but there is a long, long way to go.

Rolling Back the Crack/Powder Cocaine Sentencing Disparity


For the first time in the modern drug war era, Congress this year rolled back a harsh drug sentencing law. The sentencing disparity between crack and powder cocaine offenses had been under the gun for more than decade as it became increasingly evident that the laws were having a racially disproportionate impact. Under the old law, five grams of crack would earn you a mandatory minimum five-year sentence, while it took a hundred times as much powder cocaine to garner the same sentence. Although a majority of crack users are white, blacks accounted for more than 80% of all federal crack cocaine prosecutions. A bill to reduce, but not eliminate, the sentencing disparity passed the Senate Judiciary Committee in March and the Senate as a whole weeks later. The House Judiciary Committee had already passed a similar measure that would completely eliminate the disparity, but the House leadership chose to go along with the Senate, reducing the disparity from 100:1 to 18:1, but not completely eliminating it when it voted to approve the bill in July. President Obama signed the bill into law days later. While passage of the bill is a milestone, it leaves work undone. The sentencing disparity, while reduced, still exists, and thousands of prisoners sentenced under the harsh old law remain in prison because the new law lacks retroactivity.

Demands for Drug Testing of Welfare Recipients, the Unemployed, and Even Politicians

The impulse to score cheap political points by unleashing moralistic wrath on the poor and the unfortunate remained alive in 2010. As in years past, efforts to demand drug testing of unemployment recipients or people receiving welfare benefits went nowhere, but not for lack of trying. In fact, the year was bookended by such efforts, starting with a Missouri bill that would have mandated drug testing for Temporary Assistance to Needy Families (TANF) recipients upon "reasonable cause." That bill passed a Senate committee and the House in February, but died in the Senate after a Democratic filibuster. Similarly, drug testing bills in Kentucky, South Carolina, and West Virginia all died, as did a silly Louisiana bill that would have allowed Louisiana elected officials to submit to a voluntary drug test and post the results on the Internet. Later in the year, successful Florida Republican gubernatorial candidate Rick Scott called for mandatory drug testing of welfare recipients, a call he has vowed to carry out as governor.

Attack of (on) the Synthetic Cannabinoids

Synthetic cannabinoids marketed as incense under names like Spice and K-2 first showed up on the national radar last year, and by early 2010 the prohibitionist impulse began rearing its ugly head in state legislatures across the land. Containing synthetic cannabinoids JWH-018 or JWH-073, synthesized by a university researcher in the 1990s, the stuff was available at head shops, smoke shops, and corner gas stations everywhere, as well as on the Internet. Although no overdose deaths linked to synthetic cannabinoids have been reported, there have been reports of emergency room visits and calls to poison centers by people under its influence. But it wasn't the alleged dangers as much as the fear that someone, somewhere could be getting high without getting into legal trouble that impelled a series of statewide and municipal bans. In March, Kansas became the first state to ban synthetic cannabinoids, followed by Alabama in April, Georgia in May and Missouri in July. Also banning the compounds this year were Arkansas, Kentucky, Louisiana, North Dakota, and Tennessee. Similar legislation was also proposed in several more states, including Florida, Ilinois, and New York. Then, in November, the DEA announced an emergency nationwide ban to go into effect in 30 days, meaning you have until Christmas to use the compounds legally. After that, you're a federal criminal.

SWAT Raids and Drug War Killings

It's not just the massive extent of the drug war that generates criticism, but the law enforcement violence and overkill that too often accompanies it. This year, the now infamous SWAT team raid in Columbia, Missouri, in February that left a dog dead and a family traumatized in a raid over marijuana went got national attention when a video of the raid went viral on the Internet at mid-year. Another SWAT raid in Detroit in May generated outrage when it resulted in the death of 7-year-old girl shot by a raider, and that same month, a Georgia grandmother suffered a heart attack when her home was mistakenly hit by the local SWAT team and DEA agents. And then there was the case of Trevon Cole, a 21-year-old black man killed as he knelt in his own bathroom as the apartment he shared with his pregnant girlfriend was raided over small-time pot sales. The police shooter, of course, was found innocent of any wrongdoing in a coroner's inquest, and now Cole's family is suing. So is the family in the Columbia SWAT raid.

Sentencing Reforms Continue in the States

In a bid to reduce corrections spending, a number of states in the last decade have moved to implement sentencing reforms, and 2010 saw the trend continue. In May, Colorado passed reforms that will reduce some drug use and possession sentences, allow greater judicial flexibility in sentencing, and keep some technical parole violators from being sent back to prison. But the package also increases some drug sales and manufacturing sentences. In June, South Carolina passed reforms that will end mandatory minimum sentences for some drug offenses. In August, Massachusetts passed reforms that will eliminate some mandatory minimums in a bill that was watered down from an earlier Senate version.  In all three cases, it was not bleeding hearts but bleeding wallets that was the impetus for reform.

A Congressional Drug Warrior Goes Down in Flames

It couldn’t happen to a nicer guy. This year is also notable for the spectacular May end to the career of inveterate congressional drug warrior Rep. Mark Souder (R-IN). The doughy cultural conservative crusader from the heartland resigned from Congress after admitting at a press conference to having an affair with a female staffer with whom he had once made abstinence videos. Souder is best known to drug reformers as the author of the "smoke a joint, lose your federal aid" provision of the Higher Education Act, and thus deserves credit for almost singlehandedly causing the formation of Students for Sensible Drug Policy. But his enthusiasm for the war on drugs also led him to the chairmanship of the House Government Reform Subcommittee on Criminal Justice, Drug Policy and Human Resources from 2001 to 2007, where he used his position to support harsh drug policies. He was, for instance, a staunch foe of medical marijuana and a loud voice against the Hinchey-Rohrabacher amendments, which would, if passed, have stopped federal raids on medical marijuana patients and providers. To be fair, Souder did offer committee legislation in 2006 to restrict the reach of his student aid penalty, and he was also a key Republican supporter of the recent "Second Chance" prisoner reentry funding legislation. Still, reformers are happy that one of the staunchest and most active drug warriors is out of Congress now, struck down by his own hypocrisy.

Thursday Press Teleconference: Clinton Commutation Beneficiaries Call on President Obama to Expedite Clemency for Crack Cocaine Prisoners (Press Advisory)

For Immediate Release: December 15, 2010                      

Contact: Nkechi Taifa (202-641-6605) or Tony Newman (646-335-5384)

THURSDAY PRESS TELECONFERENCE: Clinton Commutation Beneficiaries Call on President Obama to Expedite Clemency for Crack Cocaine Prisoners

Recent federal legislation reducing the 100-to-1 cocaine sentencing disparity will not benefitthose in prison

Advocates will fast and pray for justice on December 22, 10-year anniversary of Clinton crack cocaine commutations

WASHINGTON, DC—Advocates for presidential clemency will join together for a press teleconference on Thursday, December 16 to urge President Obama to expedite clemency for people serving excessive terms under the now-reformed federal crack cocaine sentencing laws. Participants will be commemorating the 10-year anniversary of President Clinton’s commutation of Kemba Smith and Dorothy Gaines, two women sent to federal prison for 24 and 19 years, respectively, for playing peripheral roles in their boyfriends’ drug operations.  Joining the women on the press teleconference will be members of the Crack the Disparity Coalition, a broad coalition of civil rights, faith-based, drug policy, criminal justice reform advocacy groups, and formerly incarcerated people.

Recent changes under the Fair Sentencing Act, signed in August, reduce the sentencing disparity between crack cocaine and powder cocaine from 100-to-1 to 18-to-1 but do not provide relief to thousands of individuals who are already serving time for crack cocaine offenses. Prior to the law’s passage, an individual in possession of 5 grams of crack cocaine (roughly the amount of sugar in a couple of sugar packets) would be sentenced to a federal 5-year mandatory minimum sentence. It took 500 grams of powder cocaine to receive the same 5-year sentence.

The campaign has set up a site (http://www.ipetitions.com/petition/pres_obama-useyourpowertocorrectinjustice/) and a Facebook page, “Holiday Fast and Prayer for Justice,”(http://www.facebook.com/#!/event.php?eid=173873379301719) where others can commit to fasting and prayer and sign a petition to President Obama on behalf of those behind bars under the old crack cocaine sentencing structure.

                        WHAT:           Press Teleconference to urge President Obama to expedite clemency

WHEN:           Thursday, December 16, 1 p.m. ET

CALL IN #:    1-800-311-9402   Passcode: Fairness

WHO:

Kemba Smith Pradia was sentenced as a first time non-violent drug offender to 24.5 years in federal prison even though the prosecutor handling her case said she never handled, used or sold any of the drugs involved. Currently, she is a national public speaker, advocate and founder of the Kemba Smith Foundation.

Dorothy Gaines is a single mother of three who was convicted of minor involvement in her boyfriends’ small-scale crack distribution and served 6 years of a 19 ½ year sentence before she was granted commutation. She currently works with at-risk youth in Mobile, AL.

Hilary O. Shelton is the Director of the NAACP’s Washington Bureau and Senior Vice President for Advocacy and Policy. He played an integral role in the Civil Rights Act of 1991 and other policy measures affecting equality in our society. 

Margaret Love was the former U.S. Pardon attorney under Presidents George H.W. Bush and Bill Clinton. She now represents people applying for executive clemency and advocates for sentencing and corrections reform.

Moderated by: Nkechi Taifa, the Senior Policy Analyst for the Open Society Foundations and Open Society Policy Center, focusing on issues of criminal justice and racial equality.  She also convenes the Crack the Disparity Working Group of the Justice Roundtable, and has worked for over 17 years to eliminate the crack/powder disparity.

New Federal Sentencing Guidelines for Crack Cocaine Now in Effect

New federal sentencing guidelines for crack cocaine offenses went into effect Monday, a week after the US Sentencing Commission promulgated them. The commission acted on a temporary basis to implement the Fair Sentencing Act, which was passed into law last summer. It will vote in May to make the changes permanent.

The Fair Sentencing Act was passed in the face of growing uneasiness over racial disparities in federal drug sentences. From the 1980s until the act was passed, people caught with as little as five grams of crack cocaine faced mandatory minimum five-year prison sentences, while people caught with powder cocaine had to be caught with 500 grams before being hit with the mandatory minimum. More than 80% of federal crack prosecutions were aimed at blacks, even though more whites than blacks used crack.

Under the new law, it will take 28 grams of crack to trigger the mandatory minimum five-year sentence. Under the old law, 50 grams of crack earned a mandatory minimum 10-year sentence; under the new law, the threshold rises to 280 grams. That means the old 100:1 sentencing disparity has been reduced to 18:1.

That's not enough for groups like the November Coalition and Families Against Mandatory Minimums, which have fought for years for federal drug sentencing reform. Still on the agenda for reformers is eliminating the remaining sentencing disparity and making the law retroactive to benefit people already serving draconian federal crack sentences.

It's not all good news. The new guidelines will also add months to some drug offender sentences. "Aggravating factors" such as intimidating girlfriends or elderly family members to sell drugs could earn drug gang leaders extra prison time. On the other hand, some low level offenders who were intimidated into participating in drug sales could see months shaved off their sentences.

Washington, DC
United States

Reducing Penalties for Crack and Peyote...But When Marijuana? (Opinion)

The Marijuana Policy Project's executive director, Rob Kampia, reflects on advocating changes in marijuana policy in light of reductions in penalties with regard to crack cocaine and peyote. He says it's all about framing the issue.
Publication/Source: 
The Huffington Post (CA)
URL: 
http://www.huffingtonpost.com/rob-kampia/reducing-penalties-for-cr_b_711065.html

Obama Takes a Crack at Drug Reform (Opinion)

Drug Policy Alliance ED, Ethan Nadelmann, opines on President Obama's drug policy reform moves since entering office.
Publication/Source: 
The Nation (NY)
URL: 
http://www.thenation.com/article/154164/obama-takes-crack-drug-reform

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