Sentencing Commission to Revisit Crack-Powder Penalties

What is the most unfair, draconian law passed during the Reagan Administration that is still law today? The one that makes the the penalties for crack cocaine offenses 100 times more severe than those for powder cocaine.

Eric Sterling has an op-ed in the LA Times today on the topic. Tomorrow, the U.S. Sentencing Commission will hold hearings on the disparate penalties.

ONE OF OUR MOST infamous contemporary laws is the 100-1 difference in sentencing between crack cocaine and powder cocaine. Under federal drug laws, prison sentences are usually tied to the quantity of drugs the defendant trafficked. For example, selling 5,000 grams of powder cocaine (about a briefcase full) gets a mandatory 10-year prison sentence, but so does selling only 50 grams of crack cocaine (the weight of a candy bar).

Working for the House Judiciary Committee in 1986, I wrote the House bill that was the basis for that law. We made some terrible mistakes.

Sterling observes:

Drug sentences are on the national agenda again because civil rights supporters are justifiably outraged that almost all federal crack prosecutions involve people of color. And indeed, for years no whites were prosecuted for crack offenses in many federal courts, including those in Los Angeles, Chicago, Miami, Denver, Dallas or Boston.

He now recommends:

Congress should do what it tried to do in 1986 — make the Justice Department focus exclusively on high-level cases because state and local law enforcement cannot. There are three elements to fix the problem: Raise the quantity triggers for all drugs to realistic levels for high-level traffickers, such as 50 or 100 kilos of cocaine, and end the crack/powder imbalance; Require the attorney general to approve prosecution of any case involving less than 50 kilos of cocaine; Analyze federal drug cases district by district to identify agents and prosecutors who waste their time and our money. If only high-level dealers were being prosecuted by the feds, no one would have cause to complain about the race of the defendants.

TChris wrote a few weeks ago about our 20 years of unfair sentencing. In May, the American Constitution Society relased a white paper on the topic. My view, expressed in this 2003 post, draws on articles I wrote in 1997 and 1998.

Law Prof and sentencing expert Doug Berman has been following the topic closely.

Here is one horror story. And as I mention in the post, another from one of my own appeals:

Dracy McKneely got a life sentence on a conviction of 251 grams of crack. I did not represent him at trial, only in his appeal. The last words of the opinon affirming his conviction are:

Although it is tragic for a twenty-three-year-old to spend the rest of his life in prison, Congress has provided this penalty for drug crimes involving large quantities of cocaine. We must follow the law.

Unlike the federal sentencing guidelines which are no longer mandatory since Booker, mandatory minimum sentencing statutes are still unassailable. They need to be changed.

< Supreme Court Denies Review for Michael Skakel | The New Congress and Civil Liberties >
  • The Online Magazine with Liberal coverage of crime-related political and injustice news

  • Contribute To TalkLeft

  • Display: Sort:
    I'm nitpicking. (none / 0) (#1)
    by roy on Mon Nov 13, 2006 at 11:31:22 AM EST
    It is not correct that "penalties for crack cocaine offenses 100 [are] times more severe than those for powder cocaine".  So if X amount of power is punished with Y years is prison, it doesn't follow that X amount of crack is punished by 10*Y years.

    That said, between the Democratic wins, and what I hope for in the Republican need to appease its small-government (ex?)-base, there's a real chance of the penalties being made more consistent if the issue stays visible.

    The penalties are 100 to 1 (none / 0) (#2)
    by Jeralyn on Mon Nov 13, 2006 at 11:42:09 AM EST
    Roy, yes they are. A gram of crack gets the same sentence as 100 grams of powder).  It takes only 5 grams of crack to mandate a 5 year penalty but 500 grams of powder.

    coke (none / 0) (#3)
    by HeadScratcher on Mon Nov 13, 2006 at 11:52:51 AM EST
    So, should the powder cocaine users get harsher sentences to make the whole thing fair? I don't believe that is what is being advocated.

    Why not make this a 'health' issue. In a free society shouldn't someone be free to use drugs of their choice? Instead of spending money on incarceration (possession), why not legalize the drug, tax, use the funds for prevention and other health related issues (as with tobacco)?

    By arguing sentencing we are arguing about the size of the lifeboats on the Titanic...it's not the real issue (in a macro sense. I do understand the micro issues involved).

    You mean a "liberty issue", right? (none / 0) (#6)
    by Gabriel Malor on Mon Nov 13, 2006 at 01:00:16 PM EST
    As a "health issue," destructive recreational drugs would be illegal because they serve no purpose that advances health. But as a "liberty issue", destructive recreational drugs would be presumed legal as an exercise of freedom.

    Our federal system generally falls on the liberty side of things (and I wish it'd lean further in that direction) but there are some major exceptions. The Drug War is one of them. In an effort to combat the destructive effects of recreational drugs, the federal government went so far as to flat-out criminalize recreational drugs in a manner divorced from their destructive effect.


    ratio sentencing (none / 0) (#4)
    by eric on Mon Nov 13, 2006 at 12:30:23 PM EST
    Minnesota ruled that sentencing more for crack than cocaine is unconstitutional in 1991.  State v. Russell, 477 N.W. 2d 886 (Minn. 1991).  Unfortunately, only under the state law.

    He didn't phrase that precisely... (none / 0) (#5)
    by Deconstructionist on Mon Nov 13, 2006 at 12:46:00 PM EST
     but it doesn't change the point.

      More precisely it takes 1/100th the amount of "crack" to result in the same offense level range that would apply for a "powder" cocaine offense, so the sentences are not 100 times more severe, but the difference is often very large and thee is no rational reason for it (although courts have refused to declare the disparity unconstitutional under equal protection analysi even on the rationa basis test applicable when a protected class is not involved).

      As it stands, a first offender who is non-violent, did not employ a firearm, played a minor or minimal role but whose offense involved "crack" can get a significantly longer sentence than a repeat offender with a violent criminal history, who did emply a firearm and was a leader, manager or supervisor of a cocaine powder offense even though a much larger amount of drugs was involved  in the latter. That makes no sense.

    Decon (none / 0) (#7)
    by Che's Lounge on Mon Nov 13, 2006 at 01:03:17 PM EST
    That makes no sense.

    Sure it does. If you are a rich white kid, you don't smoke crack. You snort the good stuff. These laws protect such individuals, while busting poor kids to make it look as though the war on drugs is succeeding. It's all propaganda.

     Why not make this a 'health' issue. In a free society shouldn't someone be free to use drugs of their choice? Instead of spending money on incarceration (possession), why not legalize the drug, tax, use the funds for prevention and other health related issues (as with tobacco)?

    Welcome to the real world, Neo.

    re (none / 0) (#8)
    by Deconstructionist on Mon Nov 13, 2006 at 01:31:57 PM EST
      Rich white kids snorting powder or smoking crack are not the issue here . Those types of offenders  are not being subjected to federal sentences because they are not prosecuted federally,  if at all.  We need to stop trivializing the issue by pretending these laws are resulting in users facing these harsh sentences for nothing but use.

      There is no question that the "crack" penalties were adopted in an environment where race was an issue. However whether one is black, white. latino, asian or whatever,  but the penalties for TRAFFICKING in crack are way out of proportion to the sentences for TRAFFICKING in powder.

      The last really significant amendmeent of the drug guidelines was the increase in the penalties for manufacturing or trafficking in methampheatmine. Many (myself included) believe that this was done largely  as a "be careful for what you ask" response to the pressure being imposed by those who pointed out how the "crack" guidelines disparately impacted black drug traffickers. Confronted with indisputable evidence that blacks were proportionally bearing a greater burden of the affect of the crack guidelines, a drug made and sold far more by whites than blacks was selected for increased penalties.

      This time, we need a) across the booard attention to sentences for all drug-trafficking offenses and b) action -- and it could be legislative or judicial-- that ensures that district court judges have the disctretion to tailor sentences that are appropriate to the offense and THE OFFENDER. I'm opposed to the whole idea of guideline sentencing which imposes a regime where the humanity (good or bad) of the defendant is far too small a part, if any, of the equation.


    fwiw (none / 0) (#9)
    by sarcastic unnamed one on Mon Nov 13, 2006 at 01:32:29 PM EST
    roy and Decon are right regarding the nitpicking.
    selling 5,000 grams of powder cocaine (about a briefcase full) gets a mandatory 10-year prison sentence, but so does selling only 50 grams of crack cocaine.

    If, say, 50g of powder got you only 36.5 days and an equivalent amount of crack got you 36.5 x 100 = 3650 days (10 years) then this statement would be correct:

    the penalties for crack cocaine offenses [are] 100 times more severe than those for powder cocaine.

    Although I can certainly understand the desire to boil the argument down into one easily understood and striking sentence to get your point across.

    I have no dog in this fight, if there is no good reason for the sentencing disparity, I say it should be fixed.

    So, is there any good reason for the disparity? What was there a reason for the enactment of the law(s) back in '86?

    They must have had something to support the law back then, no?

    re (none / 0) (#10)
    by Deconstructionist on Mon Nov 13, 2006 at 01:57:54 PM EST
      There is no good reason for the disparity and there are many good reasons to eliminate it.

      When Len Bias died "crack" became a media sensation and there was all sorts of since disproven claims that "crack" was far more dangerous than powder cocaine. In reality the only difference is that powder is a salt (HCL) that has a higher melting point than the base and is not smokable. Claims that smoking made it more addictive than powder have been disprove. the argument that because smoked crack enters the bloodstram faster it has more dangerous acute effects ignores the fact that the most dangerous method of ingestion is intravenous injection and that is done with powder.

       Moreover, crack is cheaper because it generally contains less actual cocaine than powder.  

       Another huge  complaint though is that the disparity stands logic on its head. Almost if not all smugglers and high-level drug dealers deal exclusively in powder. Powder is converted to crack near the bottom of distribution chains. which means that the objectively greater offenders are not penalized by the disaparity but those at street-level or a step up are.

      One would think that the law would recognize that a kid holding less than 2 ounces on the street corner is not at the same level of culpability of a guy  caught with  one gram less than 5 kilos of powder but instead the law gives the kid a 10 year mandatory minimum (that is actually a statutory not guideline issue but the guidlines correspond) but the guy with the nearly 5 kilos might get as little as 5.

       I'm not even deliving into the relevant conduct issues, CI deals and all the things  that further skew the system away from fairness in this little post.

    Decon (none / 0) (#11)
    by sarcastic unnamed one on Mon Nov 13, 2006 at 02:24:10 PM EST
    Well, that sounds pretty cut-and-dried. Let's hope the sentencing commission does some good.

    Decon (none / 0) (#12)
    by Che's Lounge on Mon Nov 13, 2006 at 07:13:14 PM EST
    Good post. Some excellent observations. But will they listen to you?

    Alas, not likely.

    The courts have rejected... (none / 0) (#13)
    by Deconstructionist on Tue Nov 14, 2006 at 08:06:34 AM EST
      all those arguments and others. Actually, thought the sentencing commission did (log ago, i think it was 1995) recognize the irrationality and unfairness of the 100:1 ratio and proposed that it be amended to 10:1 (still perhaps unjutified but a step in the right direction. Unfortunately, congress did not allow the amendement to become law.

      The way it works is that each year the Sentencing Commission can propose amendments to the guidelines and those amendments become effective November 1 of each year unless Congress votes against them (in other words it's something of an accountability avoidance mechanism-- changes can be implemented merely by Congress doing nothing and no votes on the record being needed) but on that issue Congress voted to kill the amendment.

      After that we actually had a period where the Sentencing Commission was silenced to an extent by the failure to fill vacancies.

      It's really interesting now after Booker, booker has nothing to do with the 100:1 ratio directly, but it has highlighted the operation of the guidelines. Prior to the election a lot of people were hypthesizing that if the Courts took Booker  and ran with it by imposing a significant number of variance sentences below the guideline range that Congress might set even more statutory strictures mandating harsh penalties for drug offenses.

      Now, I don't think that will happens regardless of how Rita, et al might be decided but I wouldn't hold my breath waiting for any relief from Congress.