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Feature: US Sentencing Commission Again Calls on Congress to Fix Crack-Powder Cocaine Sentencing Disparity

Submitted by Phillip Smith on (Issue #486)
Politics & Advocacy

the late Lillie Blevins, served life sentence for a crack cocaine ''conspiracy'' after being convicted on the word of a snitch who received probation in return (courtesy
In its annual report to Congress, the US Sentencing Commission has once again called on legislators to reduce the tough penalties for federal crack cocaine offenses. The commission's previous calls to fix the 100:1 disparity between the amount of crack and the amount of powder cocaine necessary to trigger mandatory minimum sentences have either been ignored or slapped down by previous Congresses. Whether the new Democratic majority in Congress will allow reform to be accomplished this year remains to be seen.

Under federal law in effect since 1987, someone charged with possessing five grams of crack faces a mandatory minimum five-year sentence. By contrast, it takes 500 grams of powder cocaine -- one hundred times as much -- to trigger the same sentence.

While the Sentencing Commission cannot itself enact changes in the crack cocaine law -- that's up to Congress -- it has already signaled its impatience with congressional inaction. A little more than two weeks ago, the commission adjusted federal sentencing guidelines for crack cocaine offenses so that crack offenders will serve on average about a year less than under the old guidelines. That move alone will provide small relief to thousands of federal crack prisoners.

But the real problem is the harsh mandatory minimums for federal crack offenses. The Sentencing Commission found that:

  1. The current quantity-based penalties overstate the relative harmfulness of crack cocaine compared to powder cocaine.
  2. The current quantity-based penalties sweep too broadly and apply most often to lower level offenders.
  3. The current quantity-based penalties overstate the seriousness of most crack cocaine offenses and fail to provide adequate proportionality.
  4. The current severity of crack cocaine penalties mostly impacts minorities.

"Based on these findings," the report read, "the Commission maintains its consistently held position that the 100-to-1 drug quantity ratio significantly undermines the various congressional objectives set forth in the Sentencing Reform Act." While noting that setting appropriate thresholds is "a difficult and imprecise undertaking that ultimately is a policy decision," the Commission nevertheless "strongly and unanimously" urged Congress to adopt the following recommendations:

  1. Increase the five-year and ten-year statutory mandatory minimum threshold quantities for crack cocaine offenses to focus the penalties more closely on serious and major traffickers as described generally in the legislative history of the 1986 Act.
  2. Repeal the mandatory minimum penalty provision for simple possession of crack cocaine under 21 U.S.C. § 844.
  3. Reject addressing the 100-to-1 drug quantity ratio by decreasing the five-year and ten-year statutory mandatory minimum threshold quantities for powder cocaine offenses, as there is no evidence to justify such an increase in quantity-based penalties for powder cocaine offenses (e.g., don't increase powder cocaine sentences).

graph from report, crack cocaine amounts nearly invisible next to the powder amounts
Groups that have long advocated for reform of the crack-powder cocaine sentencing disparity and the removal of mandatory minimum sentences reacted with pleasure mixed with a hint of impatience. They have been waiting a long time for action on this front.

"The prisoners, children and families torn apart by these unjustifiably harsh penalties are watching closely and will welcome crack sentencing reforms that restore some justice to crack penalties," said Mary Price, vice president and general counsel of Families Against Mandatory Minimums (FAMM). "Only Congress can change our harsh mandatory minimum crack laws. Lawmakers should not squander the important opportunity presented by the most recent set of findings and recommendations by the Sentencing Commission. The time is ripe for reform, especially given the bipartisan support for crack sentencing reform that has emerged in recent years."

"The current sentencing structure has had a disproportionate and unfair impact on African-American and low income communities," said Caroline Fredrickson, director of the ACLU's Washington Legislative Office, "and we're encouraged that the US Sentencing Commission has once again acknowledged this fact. But 2007 marks the fourth time in 20 years that the commission has issued such a report, and Congress has yet to address the problem. Years of medical and legal research have shown no appreciable difference between crack and powder cocaine, and no justification for allowing the vast sentencing gap between them to stand. We urge Congress to put aside politics and act now to fix this discriminatory federal drug sentencing policy."

But it is not reform advocates but members of Congress who will or will not enact most reforms. While in the past, Congress has rejected such recommendations from the Commission, there are some indications support for reforms is growing.

"It's past time to reduce the disparity between crack and powder cocaine sentences actually," Republican Sen. Jeff Sessions told National Public Radio, "because the penalties on crack cocaine are extraordinarily heavy -- too heavy to be justified as public policy." His colleagues should listen to the Commission, Sessions added. Sessions has already introduced a bill that would reduce the disparity to 20:1.

Another key player, Sen. Patrick Leahy (D-Vermont), head of the Senate Judiciary Committee, told the legal publication the Daily Journal the report's findings were "an important first step" in correcting the sentencing disparity. "For far too long, the federal crack/powder sentencing laws have created an injustice in our nation," he said. Leahy said he hopes that federal prosecutors will focus more on drug kingpins.

Sen. Joe Biden (D-Delaware), who has announced his candidacy for the 2008 Democratic presidential nomination, has also weighed in. "This 100:1 disparity is unjust, unfair, and the time has long past for it to be undone," Biden said in a Tuesday press release. "The current sentencing disparity between the two forms of cocaine is based on false notions and old logic," said Sen. Biden. "Congress has ignored this issue for too long. I intend to introduce legislation to remedy the disparity and refocus the federal cocaine sentencing laws and federal resources on major drug kingpins, as was the intent of the 1986 law. I look forward to working with my colleagues -- Republicans and Democrats -- and urge them to support righting this wrong."

DEA crack cocaine photo
"There is indeed growing support for reducing the disparities," said Bill Piper, head of national affairs for the Drug Policy Alliance. "Biden, Sessions, and Sen. Hatch [R-Utah] are all working on bills, and so is Charley Rangel [D-New York] in the House," he told Drug War Chronicle. "There is growing support in the judiciary committees for doing something."

But, Piper warned, the devil is in the details. "They agree that something needs to be done, but I'm not sure they will reach agreement on what needs to be done. Then it would have to pass floor votes, and then we have to wonder if Bush would veto it," he said. "But when you have the Sentencing Commission and leading Republicans signing off on something, the Democrats should be emboldened. That shows this is a bipartisan effort."

Even the Justice Department is wavering. While Piper noted that the department has long taken the position that there was no problem, department spokesman Bryan Sierra told the Daily Journal this week that the agency is "willing to discuss the disparity in the ratio for sentencing between crack and powder cocaine," but he added that the department believes that "it should be done in the broader context of sentencing reform."

For the fourth time since 1995, the Sentencing Commission has urged Congress to act to reduce the disparity and bring greater fairness to sentencing. Now it is in Congress' hands.

Permission to Reprint: This content is licensed under a modified Creative Commons Attribution license. Content of a purely educational nature in Drug War Chronicle appear courtesy of DRCNet Foundation, unless otherwise noted.


Anonymous (not verified)

These laws were passed to keep people of color in jail at the time it was passed crack was a narcotic only present in the ghetto. I wonder why Jeb bush's daughter didnt serve the manditory sentence when she was arrested with crack? Just some thoughts!

Wed, 05/23/2007 - 3:12am Permalink
Anonymous (not verified)

All drug laws were initiated to keep certain people away from certain others; the only logic in the beginning was completely racist propaganda and the only change is that the poor are punished even more harshly for doing what people of means, preferably white, can do with seeming impunity.
Who was that mayor of Chicago who was punished for using cocaine? Oh, yes, and he was black, as if that mattered.
As for those little white girls, considering who their parents are, they were just misguided and under peer pressure, while those who didn't fit the acceptable white profile were twisted, criminally minded bottom feeders who would never amount to anything...
Thank God there are those who stand up and speak out about the unbelievable injustices committed against those who can't afford the high-ranking lawyers, (read rich) hired for cash by their nice white (rich) daddies.
The money line isn't complete insulation against boorish, racist, elitist LEOs and their pile of senseless laws, but it helps.
Poverty and lack of real education is the true enemy, not drugs.
If bush' remarks about family values had any meaning, women wouldn't have to carry the desperate family burdens that have always been their lot. Coupled with unrelenting poverty, we and our children continue to be the visible targets for the violence, brutality and hatred that grinds away at our psyche.
It is a miracle that we do as well as we do.
This male-dominated society needs more and stupider laws to hide the fear that is called drug use.
Which is worse, crack or powder? And why is it? And who says so?
This is just another smokescreen to keep common sense and true humanity from taking a rightful place.

Tue, 06/12/2007 - 5:00am Permalink
Anonymous (not verified)

It just another form of slavery. They know who crack affects. They don't care about what it is costing to house a federal prisoner. They don't care about taking a person away from family and friends. Libby is going to get off scott free for lying to a federal grand jury, but he has $ and he is a better person. RIGHT! He has only helped to kill all the troops that are dying in this civil war, but as long as he is not selling drugs he's okay. They just figure it is one less person that they have to worry about. The child molesters and murders get less time than a drug offender. They have forgotten about the quality of life that are being taking away from innocent children. They don't care because it is not their lives, family or friends that are serving these ridiculous sentences. So it doesn't matter who in congress nothing will not change until someone will really care enough and not try to make a political stance. Just another civil war behind bars to go with the one in Iraq!

Tue, 06/12/2007 - 1:19pm Permalink
Anonymous (not verified)

In California as well as other states, a person priors is held agaisnt them. This a violation of the Amendment. A person could not be charge for the same crime twice. However, if a person was convicted for using crack cocaine in the past and was caught selling it in the present he will receive, not only time for the case at hand, but he also receive time for the past cases his already serve time on again rather it is for using cocaine or selling it. This is a violation of the Consitutional Amendment.

Sat, 07/25/2009 - 5:14pm Permalink

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