In an annual report [15] sent to Congress Monday, the US Sentencing Commission announced it had amended federal sentencing guidelines to lower the sentences imposed on people convicted of federal crack cocaine offenses. Unless Congress takes affirmative action to block the move, it will go into effect on November 1. The report also urged Congress to address the 100:1 sentencing disparity between crack and powder cocaine sentences.
But while the congressionally mandated sentencing disparity between crack and powder cocaine is extreme, federal sentencing guidelines make it even worse for the low-level offenders caught under the federal crack laws. The guidelines currently call for a sentencing range of 63 to 78 months for five grams and 121 to 151 months for 50 grams. In both cases, the bottom of the guideline range falls above the mandatory minimum sentence set by Congress.
In an April 27 meeting, the Sentencing Commission voted to reduce the guideline ranges to 51 to 63 months and 97 to 121 months, respectively. Under this scheme, what is currently the low end of the guideline range will become the top end. According to the commission, 78% of federal crack defendants will benefit from the change, with sentence reductions averaging 16 months. With some 5,000 people being convicted under the federal crack laws each year, the move will have an impact.
That is, unless Congress moves to block it. On four previous occasions, the Sentencing Commission has recommended changes to lessen the gap between powder and crack cocaine offenses, but Congress blocked each of those initiatives. It also punished the commission for its temerity in suggesting that the crack-powder disparity be eliminated in 1995 by allowing the commission to dwindle to one member.
"The Commission has long recognized that the current guidelines scheme is unjust, and an amendment is long overdue," said Carmen Hernandez, president-elect of the National Association of Criminal Defense Attorneys [16] (NACDL) in a speech responding to the sentencing changes. "Nowhere is this more apparent than in the fact that 83% of inmates serving time in the federal system for crack cocaine are minorities, and their sentences are more than 50% longer than inmates serving time for cocaine powder, even though crack defendants tend to be low-level street dealers. In fact, the average sentence for possession of crack cocaine is far longer than the average sentences for violent crimes such as robbery and sexual abuse," she noted.
"NACDL urges Congress to respect the Commission's decision, which was made after consideration of the testimony and evidence that it has reviewed at Congress' direction for more than a decade and allow these amendments to go into effect," the group said in a press release [17]. "We also recommend to Congress that it carefully consider the reports and evidence the Commission has compiled."
Families Against Mandatory Minimums [18] (FAMM), a group whose name is self-explanatory, greeted the amendment by noting that is "has been a long time coming." FAMM noted that the commission considered the sentencing change as "a modest step toward alleviating some of the disparity in sentencing of crack defendants but it is not a solution to the problem because Congress needs to address the mandatory minimum sentencing statutes, over which the Commission has no control." The group will urge Congress to take action to further reform crack mandatory minimums, it said.
The Sentencing Commission has been cowed by Congress and should be revamped, Callahan said. "We need a brand new, independent commission that can't be intimidated," she argued. "When this commission recommended dramatic reform a few years ago, Congress not only didn't do it, but it spanked them hard and ended up politicizing the commission, and the commission learned its lesson: Just ask for a little bit and tell Congress 'you fix it,'" she said.
A new commission should be modeled on police oversight boards and state sentencing commissions, Callahan suggested. It should include former prisoners and family members, too. "These people need to be on the commission, as do the people who are dealing with all the offenders coming back into the community," she said.
While Congress has for the past two decades given little heed to concerns about the crack-powder sentencing disparity and its disproportionate impact on minority communities, there could be some movement this year, said Bill Piper, head of government relations for the Drug Policy Alliance [20].
"Rep. Rangel introduced a bill months ago that would eliminate the disparity," he told the Chronicle. "And Sen. Sessions has told the press he will introduce some sort of reform bill at some point. I suspect that now that the full report has come out, there will probably be some hearings. Rep. Conyers has suggested that might happen, but no hearing dates have been set yet," he explained.
"My sense is that the stars are starting to align themselves in a very good way," Piper prophesied. "There is interest in this in both the House and Senate judiciary committees, including among some Republicans. Now, the Sentencing Commission report is in. It is just a matter of when the process will start and finish," he said. "Still, I don't think anyone believes we will see it actually pass this year, and if it did, Bush would veto it."
While it appears unlikely Congress will act to redress the inequities of the federal crack laws this year, it seems equally unlikely to move affirmatively to block the Sentencing Commission's minor sentencing reform. Now, after two decades that have seen thousands of young black and brown people sent up the river for years for picayune crack offenses, it looks like the tide is beginning to turn.