ABA Urges Sentencing Commision to Make Crack Cocaine Penalty Reductions Retroactive

A few faces of past clients flashed in front of me as I read the letter the ABA has sent to the U.S. Sentencing Commission (available here) urging that their planned reduction of crack cocaine penalties be made retroactive.

While the planned reductions are tiny compared to what they should be, I'm sure any relief would be appreciated by the thousands of inmates who are languishing in our prisons serving draconian sentences for non-violent crack crimes.

In 2002, the Sentencing Commission recommended a greater reduction but it never happened. It recommended:


Specifically, the five-year mandatory minimum threshold quantity for crack cocaine offenses should be adjusted from the current 5 grams trigger to at least 25 grams and the current ten-year threshold quantity from 50 grams to at least 250 grams (and repeal the mandatory minimum for simple possession of crack cocaine.

The racially disparate effect of the crack penalties is clear:

The overwhelming majority of offenders subject to the heightened crack cocaine penalties are black, about 85 percent in 2000.

The Sentencing Commission's 2007 report on the crack penalties is here. Even Joe Biden agrees the planned reduction doesn't go far enough. In June, 2007, he called for the elimination of all disparity between coke and powder cocaine.

The current sentencing disparity between the two forms of cocaine is based on false notions and old logic. The bottom line is that there is no scientific justification for any disparity. Crack and powder are simply two forms of the same drug, and each form produces identical effects. I will soon be introducing legislation that eliminates the sentencing disparity completely, fixing this injustice once and for all. I look forward to working with Senator Hatch and others – Republicans and Democrats – and urge them to support righting this wrong.”

That's probably not going to happen anytime soon. The least we can do is make the change that will happen retroactive.

FAMM says the Commission is accepting letters from everyone on the retroactive issue. The time to write is now.

Here are some more interesting statistics on crack and powder from the Sentencing Project (pdf):

Proportion of Low-Level Crack and Cocaine Offenders Increasing
  • The majority of persons sentenced for both crack and powder cocaine offenses in 2000 were
    convicted of low-level functions in the drug trade. More than half (59.9%) of powder
    cocaine offenders were either street-level dealers or couriers/mules, while two-thirds (66.5%)
    of crack cocaine offenders fell into these categories.
  • The proportion of low-level offenders has been increasing in recent years. Low-level powder
    cocaine offenders rose from 38.1% in 1995 to 59.9% in 2000, while low-level crack cocaine
    offenders increased from 48.4% to 66.5% in this period.

Crack/Cocaine Sentencing Policy Key to Drug Disparities

  • 81.4% of crack cocaine defendants in 2002 were African American, while about two-thirds of crack cocaine users in the general population are white or Hispanic.
  • The average sentence for a crack cocaine offense in 2002 (119 months) was more than three years greater than for powder cocaine (78 months).
  • Recent reform proposals of the crack/cocaine mandatory sentencing laws would cut in half the difference (from 34.2 months to 16.4 months) in time served in prison for drug trafficking
    between African Americans and whites.
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    Response to a Former DEA Agent (5.00 / 1) (#1)
    by Jeralyn on Thu Aug 23, 2007 at 11:36:47 PM EST
    Over at Captain's Quarters which wrote up this post, a retired DEA Agent writes in, critical of my post and me personally.

    Here's my response.

    (Former) Agent Fouse, thank you for remembering my tv appearances.

    Question: What do you call a defendant who is an addict and buys two grams of crack to sell one to another user and personally ingests the other?

    The law calls him or her a dealer since the crime is distribution, which means "to deliver", "with or without remuneration." The D.E.A. calls him a trafficker since under federal law, possession only applies to a drug possessed exclusively for personal use.

    I'm not aware of any South American cartels that import crack into the U.S. Most kilogram dealers in the U.S. get it as powder and sell it as powder. In all the years I've been defending persons charged in federal court with cocaine offenses, I've only had one case where the highest up dealers converted kilos to crack before selling it. The conversion to crack happens far down the chain, with street level dealers cooking it into crack in their kitchens.

    Which raises another question: If a dealer obtains the coke as powder and sells it as powder, should the Government be able to charge and convict him of a crack offense using the conspiracy law because the person he sold it to decided to cook it into crack without telling him that was his intent? That's what happening and yes, I think that's unfair.

    I also disagree, as do the experts, that powder is different than crack. Pharmacologically, they are identical. Joe Biden , my least favorite Democrat running for President, says:

    There is no scientific justification for any disparity. Crack and powder are simply two forms of the same drug, and each form produces identical effects.

    In 1997, two dozen federal judges, all of whom are former U.S. Attorneys, supported and recommended the reduction of crack cocaine penalites.

    In 1995, the United States Sentencing Commission urged that the penalty levels for offenses involving crack and powder cocaine be equal. It backed up its proposed amendments with years of study and hearings, and a very well-documented report of over 200 pages of sound research and findings. But Congress, at the urging of then- President Clinton, rejected the amendments and ordered the Commission to study the issue further.

    Congress may not have intended the draconian penalties for crack to result in predominately harsher sentences for African-Americans, but that has been the result.

    It's time to reduce the penalties for crack substantially to where they are equal for powder cocaine. As to those who say the powder penalties should be increased, I say, two wrongs don't make a right.

    yeah, good luck with that (none / 0) (#2)
    by cpinva on Fri Aug 24, 2007 at 12:04:14 AM EST
    talk about giving your political opponents a clip full of ammunition, for the next election cycle: "the incumbent voted to retroactively reduce the sentences of convicted drug dealers! is this the kind of person you want representing you?" oh, while i'm at it, i have some stock in the brooklyn bridge for sale, below par. call me if you're interested.

    why on earth would you waste valuable time, time you'll never recover, arguing with an idiot? i believe, by definition, "DEA Agent" is synonomous with idiot. this is an agency whose sole reason for existing was to give nixon something to point to, and away from him.

    it has no useful purpose, not already the responsibility of other, previously existing, law enforcement agencies. you want to reduce the budget deficit? eliminate the DEA, in its entirety. do it today, right now, this very instant.

    but don't, for god's sake, expend scarce, allocable resources on them, it only serves to justify their existence, as if they actually matter.

    Unfortunately (none / 0) (#3)
    by Jeralyn on Fri Aug 24, 2007 at 12:19:18 AM EST
    I have many clients serving time for whom the DEA does matter, big time. While I'll agree their logic escapes me, they are holding the keys to the cells, through the pressure they bring to bear on the White House, Congress and even the Sentencing Commission.

    One time, many years ago, while standing outside a federal courtroom waiting for a case to be called, a DEA agent asked me how I looked myself in the mirror each morning. I didn't miss a beat before answering, "How do you?"  I got the answer I was expecting, that his younger brother had od'd and it framed his life's course.  At that time, my son was still a child, and I couldn't relate. My thought was, I'll do a better job of training and educating him than this AUSA did with is brother.  

    And I have done that, without instilling the politics of fear in my son, who in now in NY waiting for his bar results to come n in November.

    We shape our children, as much as we can. Mine fell in love withe being on Tim Mc'veigh's defense team.

    i understand jeralyn (none / 0) (#6)
    by cpinva on Sat Aug 25, 2007 at 10:35:02 AM EST
    might i suggest a more constructive route: let's seek the elimination of the DEA, in its entirety. it is, quite literally, an agency in search of a legitimate purpose. ridding the country of it would be no loss whatever.

    i've had occasion, over the past 20 odd years, to work with members of various law enforcement agencies, ranging from the fbi to state/local police. this included the dea. without fail, they tend to be the creepiest, most whacked out of the lot; you need to wash your hands afterwards. and these are supposed to be the good guys!

    it will fight tooth and nail to justify its existence. any attempt to lessen the draconian penalties for minor drug possession/use is seen as a threat to them, and their budget. they will not go quietly into that good night.


    Latest Information on Crack Cocaine Sentencing (none / 0) (#4)
    by KGotsch on Fri Aug 24, 2007 at 11:13:45 AM EST
    Thanks for including the link to data from The Sentencing Project on federal sentencing for crack cocaine offenses.  More up-to-date information on the topic and a look at their new public education campaign is available at www.sentencingproject.org/crackreform.

    I'm going to "hijack" (none / 0) (#5)
    by Deconstructionist on Fri Aug 24, 2007 at 11:35:14 AM EST

      Almost no one persists in defending the crack:powder disparity. Nearly only those with the power to "fix" the problem refuse to acknowledge it. All of these arguments have been made forcefully for nearly 20 years with only the need to update the statistics. After all that we get a 2-level prospective alteration (although admittedly at the higher levels of the sentencing table 2 levels can make a substantial difference).

      While I advocate limination of the crack:powder disparity it is but one of the problems with the federal sentencing regime.  

      What I really want to see is that  something simple and traditional be restored that can help alleviate all of the many flaws in the regime and serve penal and security interests as well--

      Bring back the parole system!.


    It is a lot easier to kill a parole system than (none / 0) (#7)
    by JSN on Sat Aug 25, 2007 at 11:04:26 AM EST
    it is to bring one back to life. Our parole board and community based corrections use the best available risk assessment instruments with very good results. But they moving against a strong counter-flow because of the folks who say that no level of risk is acceptable. All it can take is one "nasty surprise" (example a parolee who had never done anything violent runs down 20 people with his car) and the entire parole system can be scrapped.

    In my opinion the cost of not having a parole system far outweighs any slight improvement in public safety but I am pretty certain I am in the minority in thinking so.