Obama Backs Crack-Powder Cocaine Equalization at Today's Hearing

As I wrote yesterday, the Senate Judiciary Committee is holding a hearing this morning on the need to revise the disparate 100:1 ratio of penalties for crack and powder cocaine. Here is Assistant Attorney General Lanny Breuer's written testimony.

The Administration believes Congress’s goal should be to completely eliminate the sentencing disparity between crack cocaine and powder cocaine.

Until that change from Congress comes:

However, we recognize that federal courts have the authority to sentence outside the guidelines in crack cases or even to create their own quantity ratio. Our prosecutors will inform courts that they should act within their discretion to fashion a sentence that is consistent with the objectives of 18 U.S.C. § 3553(a) and our prosecutors will bring the relevant case-specific facts to the courts’ attention.


Until Congress changes or eliminates the mandatory minimum thresholds, judges right now don't have the ability to use their discretion to go under those amounts.

Mandatory minimums trump the Sentencing Guidelines. Right now, by law, the Judge cannot depart below a five year mandatory minimum sentence for cases involving between 5 and 50 grams of crack or ten years for cases involving more than 50 grams of crack -- unless the safety valve applies or the Government requests a departure, which it can do for only one reason: if the defendant cooperated in the investigation or prosecution of another person. (The levels for powder are five years for between 500 grams and 5 kilos and ten years for more than 5 kilos.)

Until we get rid of mandatory minimums entirely, we need a law that gives judges the authority to depart from mandatory minimums on their own motion.

The safety valve (see section (f)) is limited to defendants with no more than one criminal history point. Minor offenses and deferred judgments in state courts count for one point. DUI's count for a point. There are far too many deserving defendants with more than one point who can't benefit from the safety valve. The safety valve needs to be expanded.

It's important for people to realize the sentencing guidelines, which are no longer mandatory, are only one factor in the equation. We need to get rid of the mandatory minimums and until we do, give judges the discretion to go below them on their own motion and expand eligibility for the safety valve.

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    It's racist (5.00 / 1) (#6)
    by jbindc on Wed Apr 29, 2009 at 04:16:52 PM EST
    Crack is used more by black urban kids and powder cocaine more by rich, white kids.

    Good for Obama on this one. This policy should have been changed years ago.

    Is melanoma racist? (none / 0) (#7)
    by sarcastic unnamed one on Wed Apr 29, 2009 at 06:23:17 PM EST
    Clearly crack laws affect blacks more than other races due to socio-economic grouping, and I'm also aware of the charge that some people wrote/voted for the laws knowing they would affect blacks more, but are all laws that do that also racist?

    For example, are white-collar criminal laws racist (assuming more whites are convicted for them than other races)?


    come on (none / 0) (#8)
    by txpublicdefender on Wed Apr 29, 2009 at 07:13:11 PM EST
    The point is that there is no reasoned basis for the disparity.  Whether it was racist in intent or not, it's effect is that, for no justifiable reason, black defendants are incarcerated for far longer periods of time.  It is racist in its effect, to be sure.

    I'm not completely convinced (none / 0) (#11)
    by sarcastic unnamed one on Wed Apr 29, 2009 at 11:25:19 PM EST
    that there is no reasoned, justifiable, basis for the disparity, but that's a different conversation.

    There are so many actions and deeds in our society that are absolutely racist, and I think throwing around the "r" word too much undermines real racism.

    If anything this law is classist or bigoted against the poor or something, since crack usage seems much less race-dependant than it is socio-economic.

    You don't see many comfortable, educated blacks, whites, asians or latinos smoking crack, but you see many poor whites, asians, latinos and blacks doing it.

    A minor quibble, I suppose.

    As far as the bigger question goes, I suppose you need to look at the sentencing ranges for all drugs and ask why some result in worse sentences than others.

    If the reason is that some drugs are more debilitative than others, then I'm not sure I see the reason for not making crack coke sentences harsher than powder coke.


    here's the real issue (none / 0) (#12)
    by CST on Thu Apr 30, 2009 at 09:53:10 AM EST
    with the disparity from where I sit.

    I think crack is worse than cocaine for the user, absolutely.

    However, you get crack from cocaine.  So the people who are the "head honchos" of crack are the ones who have a lot of cocaine.

    By having a disparity, you are punishing the middle-man worse than you are punishing the ring-leader.


    plus (none / 0) (#13)
    by CST on Thu Apr 30, 2009 at 09:53:48 AM EST
    100:1 is an absurdly large disparity.

    Agree, 100-1 does not seem fair: (none / 0) (#14)
    by sarcastic unnamed one on Thu Apr 30, 2009 at 11:33:04 AM EST
    Most notoriously, the laws wallop those who deal in as little as 5 grams of crack with the same five-year mandatory minimum prison term as those caught dealing 500 grams of powder cocaine. Lawmakers have stubbornly refused to close this 100-1 ratio.

    Where are the people who still support this? (none / 0) (#1)
    by Claw on Wed Apr 29, 2009 at 01:49:17 PM EST
    There isn't a lawyer I know who doesn't think that the disparity is outrageous.  There are a few who stay mute on the issue, but my sense is that they, too, realize it's nuts.
    So what's the mood in Congress?  Anyone know?

    BTW, good for Obama.  I haven't liked his DOJ, lately, but he deserves some praise for this.

    if it is really equal... (none / 0) (#2)
    by diogenes on Wed Apr 29, 2009 at 02:31:14 PM EST
    If crack and powder are really equal and there is a 100: 1 sentencing disparity, then why in heaven's name does anyone use or deal crack?  

    crack is a lot cheaper to buy (5.00 / 1) (#3)
    by of1000Kings on Wed Apr 29, 2009 at 02:38:39 PM EST
    and a lot more profitable to sell depending on the area involved (b/c of it's comparatively cheaper price)...

    cocaine is stereotypically the rich mans' drug, crack is stereotypically the poor mans' drug (which generally = black in our country, not that all poor people are black, but that most black people are poor)


    real world (none / 0) (#5)
    by txpublicdefender on Wed Apr 29, 2009 at 03:18:04 PM EST
    Because, in the real world, drug users and dealers don't base their criminal activity based on the alleged deterrents provided by criminal prohibitions, but on things like real-life economic realities.

    Crack is cheaper.  


    Cost (none / 0) (#9)
    by Socraticsilence on Wed Apr 29, 2009 at 08:45:32 PM EST
    Its far cheaper and easier to mix Coke with some Baking soda and other things and sell it in super tiny increments.

    That's the point!!! (none / 0) (#10)
    by diogenes on Wed Apr 29, 2009 at 11:09:00 PM EST
    If more people use crack because it's cheaper, then maybe crack is a more pernicious drug than powder cocaine and there is some rational reason for increased penalties.  Isn't the point of penalties to prevent sales/usage of illegal drugs?  Otherwise you might as well legalize the whole bunch of them.

    People sell crack (none / 0) (#4)
    by Bemused on Wed Apr 29, 2009 at 03:01:34 PM EST
      because there are people who like to use it, and as the previous post said it's very profitable. If an activity presents enough reward some people will assume a tremendous amount of risk to engage in it. But, the shrewder people don't. they deal exclusively in powder and endeavor to maintain layers of transactions between themselves and the conversion to crack precisely in order to evade the harsher penalties they are smart enough to want to avoid the risk of incurring.

      The people who assume the risk are basically the low level dealers and often the ones who make no real monetary profit and only manage to subsidize their own usage.

      This obvious fact shows why the harsher sentence for crack actually have the perverse effect of targeting relative peons while the big shots almost always only receive powder sentences if caught.

      (It's also an unfortunate reality that the the low level people are much easier to catch in any criminal enterprise because they are willing to put themselves on the "front lines" for lesser reward than the high level people who more wisely assume less risk for greater reward, although that's not a sentencing issue per se.0