Sentencing Commission Fails to Reduce Crack Guidelines For All Defendants

What a mess. The U.S. Sentencing Commission implemented its emergency temporary amendments to the crack cocaine guidelines to comply with the Fair Sentencing Act passed by Congress that reduces the penalties for crack cocaine to be more in line with those for powder cocaine (roughly 18 to 1 instead of 100 to 1) and how did they do it?

They increased the base levels for amounts of crack that included the mandatory minimum threshold amounts from 24 and 30 to 26 and 32 instead of keeping them at 24 and 30. (Text of Amendments here.) What it means: Some crack defendants will see no change in their base offense levels under the Fair Sentencing Act, for example, those with quantities between 28 and 35 grams, 280 and 499 grams and 840 grams and 1.49 kilograms. (See page 9 of the Federal Defender's letter.)

There's also a big risk of double counting due to all the enhancements they threw in (some of which, like "violence" are not even defined.)

The Sentencing Commission asked for public comments on the change. They posed the question as: [More...]

In particular, should the base offense levels for crack cocaine again be set so that the statutory minimum penalties correspond to levels 26 and 32, using the new drug quantities established by the Act (the "level 26 option")? Or should the base offense levels for crack cocaine continue to be set so that the statutory minimum penalties correspond to levels 24 and 30, using the new drug quantities established by the Act (the "level 24 option")?

Here's Senator Durbin's letter explaining the problem and urging the Commission to set the levels at 24 and 30 instead of 26 and 32. Here is the Federal Defender's letter explaining the problems. Hopefully the Commission will fix this by the time the permanent amendment is scheduled to go into effect in May, 2011.

The Commission explained in its request for comments:

Until 2007, the drug quantity thresholds for ... offenses involving 5 grams or more of crack cocaine were assigned a base offense level (level 26) corresponding to a sentencing guideline range of 63 to 78 months for a defendant in Criminal History Category I (a guideline range that exceeds the 5-year statutory minimum for such offenses by at least three months).

Similarly, offenses involving 50 grams or more of crack cocaine were assigned a base offense level (level 32) corresponding to a sentencing guideline range of 121 to 151 months for a defendant in Criminal History Category I (a guideline range that exceeds the 10-year statutory minimum for such offenses by at least 1 month).

In Amendment 706, the Commission amended the Drug Quantity Table for crack cocaine, reducing the base offense levels for these quantities to level 24 and level 30, respectively, and extrapolating upward and downward for other crack cocaine quantities. See USSG App. C, Amendment 706 (effective November 1, 2007). Base offense levels 24 and 30 each correspond to a guideline range for a defendant in Criminal History Category I that includes the statutory mandatory minimum penalty. For base offense level 24, the guideline range is 51-63 months; for base offense level 30, the guideline range is 97-121 months.

And now they are back up to 26 and 32. Again, see the Federal Defender's letter explaining the unfairness.

On Double counting: The commission added (as the new law requires)an enhancement of two levels for bribing a cop or agent to facilitate the offense. How is that different from the existing obstruction of justice enhancement?

There's also a new two level enhancement if "the defendant maintained an establishment for the manufacture or distribution of a controlled substance." Will that be applied to defendants who merely distribute at their home? To defendants who book a hotel room to do the deal?

As to those already bumped for an organizer or manager role, now they will get another two level increase if they "used impulse, fear, friendship, affection, or some combination thereof to involve such person in the offense" or distributed to "a person over the age of 64 years." Why are people over 64 more vulnerable than people who are 63 or 62?

I wrote a few times the Fair Sentencing Act was fraught with danger and not the right bill to pass -- both because of the 18:1 ratio and the multiple enhancements. All we needed was a bill that eliminated the words "cocaine base" from the statute. That would have made the ratios 1:1 and left the rest of the guidelines alone. Now we have a mess on our hands.

And memo to Senator Durbin who co-authored the compromise bill with Sen. Jeff Sessions: See what you get when you capitulate with Republicans? This is your bill and they didn't even accept your recommendation as to how to implement it. This should have been foreseen and taken care of in the bill itself. Instead, you were more concerned with sending the message, "If Jeff Sessions and Dick Durbin can come to an agreement, bipartisanship is not dead."

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    I feel nauseas (none / 0) (#1)
    by NYShooter on Mon Oct 18, 2010 at 12:04:26 PM EST
    every time you write about this subject, Jeralyn.  

    The feeling of dread, that a Democratic Administration could be pressing this gut-wrenching unfair policy, is almost too much to bare.

    Democrats, supposedly progressive, and not that it should matter, but it does, an AA President and an AA Attorney General are o.k. with this abomination.

    And again, not that it should matter, but it does, the overwhelming number of "clients" just happen to also be AA`s.

    Coincidence, I'm sure.

    How a Harvard educated man, with such great promise, could place his imprimatur on this injustice is disheartening beyond words.

    Jeralyn is telling us about a decision (5.00 / 1) (#4)
    by Peter G on Mon Oct 18, 2010 at 03:32:20 PM EST
    of the Sentencing Commission, a bipartisan "expert" body that is not controlled by, and does not reflect the policies of, the Administration.  The vote was 8-1; perhaps the Obama-appointed Commission (K. Jackson) voted No (or maybe not).  I don't see any explication in any of the linked items of what in fact they decided to do, exactly.  As of 4:30 Friday, it's not posted on their website yet.

    Yes, perhaps (2.00 / 1) (#5)
    by NYShooter on Mon Oct 18, 2010 at 05:41:32 PM EST
    a little stretch of poetic license, or even misguided hyperbole; and someone more skilled in political and legal intricacies could state what I was trying to express far better.

    But, somehow the idea that the President of the United States, when witnessing what I (and I don't believe I'm alone) see as an affront to the dignity of our vision of fairness & equality, must remain cowering, with clenched teeth, in a corner of the Oval Office, helpless, impotent even, to express a view seems a bit preposterous.
    He didn't seem to have a problem chiding another bipartisan "expert" body, the S.C. in the Citizens United matter. And for all the world to witness, no less.

    It is just my opinion, but not totally without basis.

    I respect your opinions, Peter, and always look forward to your posts. And if you could steer me somewhere that would give me reason to apologize for my bitter opinion of Pres. Obama's lack of championing a more liberal justice  system I would be truly grateful to do so.


    My saying that this particular disappointment, (none / 0) (#7)
    by Peter G on Mon Oct 18, 2010 at 08:21:06 PM EST
    on top of so many others, cannot be blamed on Obama, is in no way to be taken as disagreement with you, NYS, on other disappointments. I'm all for pointing the finger and speaking truth about "Pres. Obama's lack of championing a more liberal justice  system," as you rightly note; in this instance, however, the blame lies elsewhere.
       One correction to my comment, and one addition.  When I said that "as of 4:30 Friday" I couldn't find the details on the US Sent Comm'n website, I meant to write "as of 4:30 Monday."  However, I see that the full document is available from the always-outstanding Federal Defender Training Division website.  To second TL's main point about this so-called "Fair Sentencing Act," I would venture to guess that its overall impact will be to increase not reduce federal drug sentences, although it does ameliorate somewhat the notorious crack/powder disparity and it eliminates the odious mandatory minimum for simple possession of crack.
       Let me add as well that however the Guidelines may be amended and revised, they are only "guidelines."  Unless the sentence bumps up against a mandatory minimum set by statute, the judge can always "depart" or "vary" below the recommended Guidelines range when imposing sentence in a particular case, including because the judge disagrees that the "maintaining a premises" adjustment or the "violence" adjustment meaningfully distinguishes this drug case from any other so as to warrant an increased sentence.  Or because the crack guideline still fails to promote 1:1 justice as compared with powder cocaine cases.

    Thanks, I do appreciate the patience, (none / 0) (#8)
    by NYShooter on Mon Oct 18, 2010 at 11:07:12 PM EST
    (and I will read the links)

    But now, I would impose on you one small request: Upon this layperson's first (second & third) reading of Jeralyn's post I'm still stumped for an answer to the question, "why should I care?" What is the specific change, or breakthrough, to the guidelines that makes it significant? I get the slight downward weight basis but what am I missing that makes it that important, or different from the machinations of other areas in the criminal code ?

    Its exactly this insight into drug punishment sausage making that leaves me so frustrated.  That the highest ranking leaders of our country divert their time, focus, and intensity on such minutia is truly sad. My prior Obama rant was ignited by the fact that:  were Obama truly invested in fairness and effective policy (treating drug addiction as a National Health issue, for instance) I'm sure the good Senators' time could be more productively used.


    Both gentlemen would do well in business (none / 0) (#2)
    by Yes2Truth on Mon Oct 18, 2010 at 12:15:14 PM EST

    Especially, the used car business.

    "Obama's Miracle Cars.

    Folks, if it runs good, it's a Miracle".


    Funny you shold mention the (none / 0) (#3)
    by scribe on Mon Oct 18, 2010 at 12:30:52 PM EST
    "used car business" in this context, as I've heard Kagan described as "a used car salesman" (who knew little of the class she was supposedly teaching) by one of her former stuents at HArvard Law.

    In oher words, she was a much better schmoozer than teacher.

    Noscitur a sociis, I often feel compelled to say.  

    Just saying.