Crack Cocaine Sentence Reductions Start Today

[Cross-posted earlier today at Firedoglake.com]

Finally, a little relief is at hand for the vastly disparate and draconian crack cocaine sentences meted out by federal courts. New federal sentencing guidelines for crack cocaine offenses went into effect today.

Starting today, many offenders sentenced in federal court for crack will receive a sentence about 16 months less than they would have yesterday.

By way of background, through mandatory minimum sentencing laws, the Feds have punished crack crimes far more severely than those involving powder cocaine. The U.S. Sentencing Commission followed suit by enacting guidelines that matched the mandatory minimums.

A crime involving five grams of crack cocaine carries a mandatory sentence of five years in prison, and 50 grams carries a 10-year penalty. However, it takes 500 and 1,000 grams of powdered cocaine to trigger the same five and 10 year sentences.


The 100 to 1 ratio between powder and crack cocaine penalties has no rational or scientific basis. (You know you're onto something when even Joe Biden agrees.) After years of debate and studies demonstrating this, and with statistics showing that the crack penalties resulted in great racial disparity in sentences, in May, the United States Sentencing Commission proposed dropping the penalties for crack offenses by two levels. Congress had until October 31 to oppose new guideline. It didn't object, so the new guideline became effective today.

This is a welcome step in the right direction. But let's be very clear. It's not time to open the champagne. This is a relatively minor reduction and it doesn't apply to all defendants.

There's two remaining problems: Retroactivity and mandatory minimum sentences.

First, the Sentencing Commission must decide whether the reduction will be retroactive and apply to the 19,500 currently serving sentences for crack offenses. Its analysis of the issue is here (pdf) and includes the statistic that of the 19,500 inmates currently serving federal sentences for crack offenses, 86% are black, 8% are hispanic and 6% are white.

In other words, blacks serve far longer sentences than whites for a comparable offense regarding substances that are chemically identical. With 19,500 inmates still in prison serving these disparate sentences, retroactivity is essential for fairness.

However, even if the reduction is made retroactive, it will not result in either an automatic sentence reduction or a reduction for everyone.

The problem is that the guideline reduction doesn't affect statutory mandatory minimum sentences. Mandatory minimums trump the guidelines. Under mandatory minimum sentences, there are only two ways a court can depart below the five or ten year sentence. The first is if the defendant has snitched. If he or she has cooperated with the government in the investigation or prosecution of others, and the government decides in its sole discretion that the cooperation warrants a lower sentence and files a motion seeking a lower sentence, courts can sentence under the mandatory minimum. The second way is through what's called a "safety valve." A safety valves allows a reduction below the mandatory minimum for defendants with minimal criminal records, if the offense did not involve a weapon and if the defendant discloses all of his involvement to the Government.

In the case of the non-cooperating defendant, one who either won't rat out others on principle, or has no information to provide, or the defendant who doesn't qualify for the safety valve, the Court is powerless to sentence under the mandatory minimum, no matter what the guidelines provide.

What's needed is for Congress to revise the mandatory minimum sentence laws. Currently, there are three bills pending in the Senate and one in the House that would do so.

Today's reduction also does nothing for those sentenced as career offenders or armed career offenders. And I won't go into the legalese, but some defendants who were sentenced under the guidelines when they were mandatory (a period called pre-Booker, referring to the Supreme Court case that rendered the guidelines advisory only) or at a time when there were different rules regarding departures from the guidelines, could end up with higher sentences if they ask for resentencing now.

The best online resource right now for non-lawyers is Families Against Mandatory Minimums (FAMM.)

Their q and a page about the reduction is here (pdf). A copy of the new guideline is here (pdf.)

Bottom line: Let's be positive about the change. But let's not think our work is done. As of July, here's where our Democratic candidates stood on the issue of mandatory minimum sentence reform.

Update: Sentencing Law and Policy's archive on the crack cocaine penalty change is here. Some additional news coverage is here and here.

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    Extent of Guideline sentence reduction (none / 0) (#1)
    by Peter G on Thu Nov 01, 2007 at 08:36:59 PM EST
    The nickname for this amendment is becoming "Crack Minus Two" because for cases where it applies, the new guideline reduces the former offense severity by two levels.  As you say, TL, in "many" cases (that is, the average federal drug case, which scores out around level 23 or so) a two-level reduction is worth about 16 months off the sentence.  But for bigger cases (such as those which score at offense levels in the mid-30s), a two-level reduction can mean a sentence as much as five years less.  (Of course, you are then talking about a sentence which is much longer -- like 11 years instead of 16.)

    Thanks, Peter (none / 0) (#2)
    by Jeralyn on Fri Nov 02, 2007 at 01:15:54 AM EST
    Very true.

    antother thing (none / 0) (#3)
    by Deconstructionist on Fri Nov 02, 2007 at 07:24:02 AM EST
     a defendant who has no information about other people is not ineligible for the safety-valve. That's substantial assistance. The safeety-valve only requires that the defendant be truthful in response to government inquiries prior to sentencing. I've had numerous clients receive the safety-valve reduction who had no information about others to offer.

    that's what I said (none / 0) (#5)
    by Jeralyn on Fri Nov 02, 2007 at 07:55:04 AM EST
    read it again, the "has no information" pertains to the cooperator clause of the sentence, not the safety valve clause.

    Thanks (none / 0) (#7)
    by Deconstructionist on Fri Nov 02, 2007 at 08:00:46 AM EST
     I missed the "or" conncecting the clauses.

     A problem with the safety-valve has been the requirement the person bein CH I where it took only 2 very minor prior offenses to put someone in II. In addition to the crack amendment, the criminal history amendments also became effective yesterday and by excluding more minor offenses will help some in that regard.


    I agree with you (none / 0) (#11)
    by Jeralyn on Fri Nov 02, 2007 at 03:25:07 PM EST
    on the safety valve and criminal history. Thanks for reminding me to check the criminal history changes, I haven't done that yet.

    We also need to be more precise (none / 0) (#4)
    by Deconstructionist on Fri Nov 02, 2007 at 07:34:17 AM EST
    when decrying "mandatory minimums." Thousands of offenses at the state and federal level carry mandatory minimum penalties. In fact, one could say that every offense that does not allow the judge to impose no penalty whatsoever upon conviction carries a "mandatory minimum."

      Even unsupervised  probation or a token fine is a sentence and most offenses require imposition of at least one of those.

      We need to focus on unfairly harsh mandatory minimums and not  make the untenable argument that judges should have completely unfettered discretion and that legislatures should have no role in establishing sentencing parameters.

      Also, the same arguments that apply to allowing judges to impose sentences below current mandatory minimums would work equally well in support of allowing judges to impose sentences above current statutory maximums.

      The issue of the federal mandatory minimums under 21 USC § 841 being roo harsh as applied in many cases is not the same as the issue of whether any mandatory minimum sentences should exist for any offenses.

    I diaagree (none / 0) (#6)
    by Jeralyn on Fri Nov 02, 2007 at 08:00:24 AM EST
    5 year mandatory minimum sentences for possessory crimes like possession of 5 grams or more of crack are unfair and excessive.

    10 years for 50 grams, which is less than two ounces, is also draconian.

    The ooint is is takes 500 grams of powder and 5 kilos of coke to warrant those same sentences.

    This discussion is about the federal guidelines and mandatory minimums. The federal system does not provide mandatory minimums for most crimes. Nor should it, and the Bush Administration is trying to do just that.


    I can't answer more of your comments now (none / 0) (#8)
    by Jeralyn on Fri Nov 02, 2007 at 08:04:04 AM EST
    as I'm off to court to plead someone in a crack case who won't see any benefit from the change because he's a level 38 and his offense also involves powder which is at the 38 level, and yesterday's changes only affected crack, not powder. So while his crack level is now 36, it doesn't matter because the powder keeps him at 38.  

    I agree with: (none / 0) (#9)
    by Deconstructionist on Fri Nov 02, 2007 at 08:06:57 AM EST
     5 year mandatory minimum sentences for possessory crimes like possession of 5 grams or more of crack are unfair and excessive.
    10 years for 50 grams, which is less than two ounces, is also draconian.

      My point is that just because those mandatory minimum penalties are excessive does not mean that there should be no mandatory minimums.

      Would a mandatory minimum of 1 month for selling 10 kilograms of powder be excessive? A week of probation for murder?

      My point is we need to address the particular problems with these particualar mandatory minimums rather than  argue judges should have complete discretion. Minimum penalties are appropriate at certain levels for certain offenses.

    I don't think they should be based on drug quanity (5.00 / 1) (#10)
    by Jeralyn on Fri Nov 02, 2007 at 03:22:56 PM EST
    A mule can carry 50 grams of crack and get 10 years. A spouse or partner can be in the house, take or relay a phone message from a customer to spouse or vice versa and be part of the conspiracy and liable for the mandatory minimum sentence.

    The sentence should be based on things like violence or guns used in the crime -- not on the drug quantity. I oppose all mandatory minimums because they take away judicial discretion and become one size fits all sentencing without regard to the character and traits of the specific offender. Everyone is different and should be sentenced according to the facts and circumstances of his own crime, not by some rigid formula.

    That's just my opinion.

    Also, a big problem is that the 10 year mandatory minimum doubles to 20 if the person has a prior state or federal felony drug conviction, even for possession, and the prosecutor feels like filing for it. That's huge leverage for them -- they tell you to plead guilty on the ten and cooperate against others or they will go at you for 20.

    Considering there's no parole and you do 85%, that 's big time.


    Drug Laws (none / 0) (#13)
    by Therman on Mon Dec 10, 2007 at 06:15:56 PM EST
    Hello, my name is Therman. I heard about today's decision to reduce the guidlines for crack cocaine offenders. I googled a search and found TalkLeft and in it your commentary. I read several and found your views to be in line with mine, primarily. As a black man this issue has always interested me due to the direct effect it has had on my people particularly. More importantly, anyone subjected to these laws would be a victim, not just blacks. I often wonder what mental construct allows for such behavior and misuse of power. The paradigm of quantity is absurd. The person who carries a 45 revolver is not sentenced differently from a person who carries a 22 caliber pistol. A bank robber's sentence is not solely based on his cash heist, 50,000 or 500,000, it doesn't matter the cash amount it's the act that matters. Often the players role and quantity of drugs decides his fate. This overlooks the fact that while dealers may possess different amounts they may in fact distribute the same amount. Case and point, two different guys can buy and sell equal amounts of crack in a given day. One guy may squander 80% of his profit while the other takes 80% of his profit and reinvest. Lets say that after a months time they are both arrested, the investor will likely have more money and product because of his business minded decisions but will have sold no more than his frivolous counterpart. Sadly, simply because he chose to do better he will be punished more harshly. At the end of the day their acts are the same and if one had to be worst it surly shouldn't be the sagacious of the two. Many legitimate arguments are waged against this atrosity and a myriad more can be. I just thank those of you who are looking at these disparities with an honest and open mind, it goes a long way toward mending scars and race relations.

    This: (none / 0) (#12)
    by Deconstructionist on Fri Nov 02, 2007 at 03:34:32 PM EST
    I oppose all mandatory minimums because they take away judicial discretion

    Is the only thing you write with which I take issue. I think that statemenet is overbroad because I think that for some offenses mandatory minimums can exist that no rerasonable person would consider too harsh and which discretion to go below would not be a good thing. I gave examples above.

      Moreover, as I said that logic applies equally to maximum sentences. It is entirely inconsistent to argue a judge to should always have unfettered discretion in one direction but not the other. Discretion works both way and some judges are limited from imposing harsher punishment by legislatively established parameters.

    I guess there are 51 sentencing policies and they (none / 0) (#14)
    by JSN on Mon Dec 10, 2007 at 10:09:06 PM EST
    all fairly complex. I guess the easiest to understand is the minimum sanction is probation and the maximum sanction is a prison sentence to the statutory maximum with no credit for time served or good time and the prisoner is not eligible for parole.

    My understanding is the judge has no control over time served and good time credits or parole so they are can only estimate the actual length of confinement on the basis of prior experience. The view was that it was unfair for the length of confinement to vary in an unpredictable fashion over a wide range for the same offense. Mandatory minimum sentences were supposed to make the sentences more uniform.

    I think mandatory minimums have made the length of confinement more predictable but in my opinion the cure is worse than the disease. In my state they effectively set limits on the eligibility for parole. I think there are better ways to do that.