Crack-Powder Guideline Retroactivity Ruling Expected Today

Update: The Commission has unanimously voted for retroactivity. Press Release is here. Reaction and newer post here.


[Note: This is a long post, covering the issues of the guidelines, mandatory minimums, the informant system of sentence reduction and the need for Congress to act to change the law.]

The U.S. Sentencing Commission will vote today on whether to make the recently enacted small (two level) guideline reduction for crack cocaine offenses retroactive so that some of the 19,500 inmates currently serving federal crack sentences can benefit from it. It is widely expected they will vote for retroactivity and I'll update and bump this post when they do.

The thing to remember is, this doesn't solve the problem. The much bigger problem is with mandatory minimum sentences. Only Congress can change those. Neither yesterday's Supreme Court decisions nor the guideline reduction addresses this problem. Today, like yesterday, judges are powerless to go below the 5 or 10 (or in some cases 20) year mandatory minimum sentence unless the defendant cooperates with the Government and the Government asks the judge to impose a lower sentence. The judge can't do it on his own -- or at the request of a defendant. That's just wrong-headed.


Kimbrough's case, though, did not present the ultimate fairness question. Congress wrote the harsher treatment for crack into a law that sets a mandatory minimum of five years in prison for trafficking in 5 grams of crack cocaine or 100 times as much powder cocaine.

While it takes only 50 grams of crack to mandate a ten year sentence, it takes 5 kilos of powder. 85% of crack defendants are African-Americans. "Seventy percent of crack defendants get the mandatory minimum."

Even under the reduced guidelines, the disparity remains. It takes 150 kilos of powder cocaine but only 4.5 kilos of crack cocaine to be at the highest guideline offense level of 38 which, even for someone with a clean record, carries a starting guideline range of 235-293 months.

You might think well, that only applies to huge traffickers, but that's not the case.

When you're charged in a conspiracy with others, you can be held liable for all of the drugs distributed by the conspiracy, not just the amount you were involved with, from the time you joined the conspiracy. The law allows this amount to be imputed to you if it was "reasonably foreseeable" within the scope of the jointly undertaken activity. There are defendants who sold a kilo or less who are charged, convicted and sentenced for hundreds of kilos. Many of them don't even know the identity of the others in the conspiracy whose drug dealings they are held accountable for, let alone how much they were selling, how frequently or to whom.

If the guideline range begins at 38 for 4.5 kilos of crack, and you add in a few of the possible enhancements, they're looking at life. Even as a first offender. (Level 43 and category 1 is life.)

If the defendant has a prior felony drug conviction, the Government can file a notice with the court that results in increasing the mandatory minimum from 10 to 20 years. Telling a defendant he's looking at a minimum sentence of 20 years if he goes to trial and loses presents a very tough choice and gives all the bargaining chips to the Government.

Right now, the only way out from mandatory minimums is to become a snitch for the Government (or satisfy the stringent requirements of 18 USC 3553(f), called a "safety valve.") See Ethan Brown over at TPM Cafe Book Club today, writing about his new book, Snitch: Informants, Cooperators, and the Corruption of Justice .

Ethan explains why DOJ is opposed to reducing mandatory minimums: Defendants will be less inclined to sell their tale to the government in exchange for getting out from a mandatory minimum sentence. As Ethan says,

Under the proposal, possession of 5 grams of crack will now bring 51 to 63 months in prison (the previous range was 63 to 78 months) while sale of 50 grams of the drug will result in 97 to 121 months (the old guideline range was 121 to 151 months).

....even these sort of modest changes in sentencing —-the guidelines still largely remain in force—have been fought by the Department of Justice. Why? Incredibly, it argues that extraordinarily punitive sentences are needed—even if deemed unjust by the United States Sentencing Commission and criminal justice policy experts—in order to get defendants to cooperate.

....At a 2006 United States Sentencing Commission hearing on federal cocaine sentencing policy, United States Attorney Alexander Acosta said “Simply put, if these drug defendants are not facing significant prison time, they simply will not cooperate in the investigation.” A clear message must be sent to the Department of Justice by politicians and the public alike: it is your job to serve justice, not simply “make cases.”

It's great to see the crack-powder issue make the front page of the daily papers. But the problem isn't solved. We need to keep the issue on the front burner until Congress agrees to repeal all of the unjust and disparate mandatory minimum drug penalties.

At a bare minimum, the crack-powder ratios need to be equalized at the powder levels so that it would take 500 grams of crack, not 5 grams, to mandate a 5 year sentence and 5 kilos of crack, not 50 grams, to trigger the ten year mandatory minimum.

For an example of the injustice in action, there's one of my own cases, Dracy McKneely, who had no prior felony convictions but 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 opinion 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.

The law needs to be changed.

Here's just a few of my recent prior posts on this:

Also check out:

As for where the Democrats stand on these various issues, see Dems Debate Sentencing Reform and Mandatory Minimums

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    How will this affect women? (none / 0) (#3)
    by AmieN on Tue Dec 11, 2007 at 03:02:42 PM EST
    While yesterday's SC decision is important, it still does not solve the problem, as you say, of those who are currently serving severely long prison sentences.

    Women in prison will still face unique challenges - especially around reproductive health and rights.

    We've just posted a series of articles about women in the prison system that may add to the discussion.

    Locked out of "Choice"


    Amie Newman
    RH Reality Check