Sentencing:
Rhode
Island
Federal
Judges
Not
Waiting
for
Congress
to
Fix
Crack-Powder
Cocaine
Sentencing
Disparities
11/25/05
Legal experts report that last year's Supreme Court decision in the Booker and Fan Fan cases that made federal sentencing guidelines advisory instead of mandatory have not, for the most part, resulted in significant deviations from previous sentencing practices. But federal judges in Rhode Island are using those cases to effectively rewrite the infamous 100:1 sentencing disparity between crack and powder cocaine. In cases this fall, at least two US District Court judges there have challenged the validity of the 1986 law, arguing instead that a more appropriate ratio is 20:1 and sentencing defendants accordingly. Under federal law, selling five grams of crack earns a five-year mandatory minimum prison sentence, but it takes selling 500 grams (more than a pound) of powder cocaine for the same penalties to kick in. While concern over the disparity has festered for years, the Booker and Fan Fan decisions have brought the issue to the fore once again. According to a report this week in the Providence Journal, US District Court Judge William Smith rejected the 100:1 disparity in sentencing a Pawtucket man in September, saying he could not "blindly apply" guidelines that treat five grams of crack cocaine like 500 grams of powder. In that case, Joshua Perry was found guilty of selling more than five grams within 1,000 feet of a school. Because he had a previous drug felony, Perry was faced with at least a 10-year mandatory minimum sentence. But while the sentencing guidelines called for a sentence of between 15 and 19 years, Judge Smith left Perry's sentence at the 10-year mandatory minimum. Chief US District Judge Ernest Torres has substituted the same 20:1 ratio in a pair of similar cases. In one case, sentencing guidelines called for at least 235 months, but Torres sentenced the defendant to only 188 months. In a second case, the guidelines called for at least 87 months, but Torres sentenced the defendant to 64 months. "The growing sentiment in the district courts is clear," Smith wrote in a 71-page sentencing memorandum in the Perry case. "The advisory guideline range for crack cocaine based on the 100-1 ratio cannot withstand the scrutiny imposed by sentencing courts when [sentencing goals] are applied." Judge Smith's Perry sentencing memorandum is a clear challenge to the existing crack cocaine sentences. He noted that the US Sentencing Commission has urged Congress to redress the sentencing disparity for more than a decade, and cited the commission's findings that that crack penalties "sweep too broadly and apply too frequently to low-level offenders" and that the 100:1 ration "overstates the seriousness of most crack offenses." "Finally, the commission found that the current penalty structure disparately impacts minorities," Smith wrote. "While the commission conceded that it is difficult to empirically study this issue, approximately 85 percent of the offenders sentenced for crack cocaine violations are black (in the year 2000) and that this leads to, at the very least, a perception that the crack/powder disparity is racially motivated." The commission's conclusions "are supported by an overwhelming amount of authority -- empirical, scholarly and otherwise," Smith wrote. "In fact, it is virtually impossible to find any authority suggesting a principled basis for the current disparity in sentences." Unsurprisingly, federal prosecutors in Rhode Island are not pleased. They have appealed Smith's sentence in the Perry case, as well as Torres' decisions in the two cases mentioned above. While US Attorney Clark Corrente's office has yet to file briefs in the Perry case, earlier this month Assistant US Attorney Donald Lockhart filed a 50-page brief in the Torres cases that included a section called "Why Perry was wrongly decided." "First, the bulk of the Perry decision is devoted to a policy discussion," prosecutors wrote. Policy matters should be handled by Congress, they argued. The issue is whether judges can "adopt their own across-the-board rules regarding the appropriate crack/powder sentencing ratio, when such rules override Congress' judgment on how severely crack offenses should be punished, and when the proliferation of varying ratios threatens to yield wildly disparate sentences as judges institute their own preferred schemes." The Supreme Court threw a bomb into the federal sentencing structure when it decided Booker and Fan Fan in January. It may well have to clean up the resulting mess before too long.
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