I. FEDERAL MANDATORY MINIMUM REFORMS: ELIMINATE THE CRACK COCAINE SENTENCING DISPARITY PDF Print E-mail

Summary of the ProblemIn 1986, Congress enacted the Anti-Drug Abuse Act, which differentiates between two forms of cocaine-powder and crack-and singles out crack cocaine for dramatically harsher punishment.  In 1988, Congress further distinguished crack cocaine from both powder cocaine and every other drug by creating a mandatory felony penalty of five years in prison for simple possession of five grams of crack cocaine.  In what has come to be known as the 100:1 quantity ratio, it takes 100 times more powder cocaine than crack cocaine to trigger the harsh five and ten-year mandatory minimum sentences.  When the Sentencing Commission drafted the sentencing guidelines, they indexed them to the mandatory minimums, so that a finding of drug quantity that would trigger a mandatory minimum was also the finding to trigger the relevant sentencing guideline range. 

            For over twenty years the 100:1 ratio has punished low-level crack cocaine offenders, many with no previous criminal history, far more severely than their wholesale drug suppliers who provide the powder cocaine from which crack is produced.  Of all drug defendants, crack defendants are most likely to receive a sentence of imprisonment, as well as the longest average period of incarceration.[i]  Despite the enormous cost to taxpayers and society, the crack-powder ratio has not resulted in reduction in the cocaine trade.  This sentencing scheme also has had an enormous racially discriminatory impact, resulting in blacks being disproportionately impacted by the facially neutral, yet unreasonably harsh, mandatory minimum crack penalties and corresponding guidelines.  

            Crack cocaine reform must be a priority for the new administration.  The issue has been seeded, vetted and is ripe for congressional consideration.  Indeed, within the past twenty years if there has ever been a moment when change was on the horizon with respect to crack cocaine reform, now is that moment.  There has never been as much momentum involving different key players focused on this issue.

Proposed Solutions: 

            Executive The new President can signal to Congress his support for a bill that will eliminate the crack sentencing disparity.  While the legislative process is in motion, we request that the new Attorney General ensure that those with criminal prosecution responsibility in the Department of Justice (DOJ) as well as U.S. Attorneys Offices are aware of the Supreme Court decisions, particularly Gall v. United States, 128 S. Ct. 596 (2007), and Kimbrough v. United States, 128 S. Ct. 558 (2007), and the Sentencing Commission findings and guideline amendments respecting crack cocaine, and that they take all lawful discretionary actions possible to minimize low-level crack cocaine prosecutions.   

            Legislative Changes:  

1.  Amend 21 U.S.C. § 844 to eliminate the mandatory minimum for simple possession of crack cocaine.   

2.  Amend 21 U.S.C. § 841(b)(1)(A) and (B) to increase mandatory minimum triggers for trafficking crack cocaine from 50 grams to 5 kilograms for the ten year mandatory minimum and from 5 grams to 500 grams for the 5 year mandatory minimum. 

3.  Amend 21 U.S.C. § 960(b)(1)(A) and (B) to increase mandatory minimum triggers for importing or exporting crack cocaine from 50 grams to 5 kilograms for the ten-year mandatory minimum and from 5 grams to 500 grams for the 5 year mandatory minimum. 

            Legislative Appropriations (Solutions w/ Funding Requests)This reform has the potential to save money because lengthy crack cocaine sentences will be reduced.

Jurisdiction: 

            Executive Branch:  Department of Justice

            Legislative Branch:  House and Senate Judiciary Committees 

Background: 

            Legislative BranchThree bills in the Senate have risen to prominence, with the Drug Sentencing Reform and Cocaine Kingpin Trafficking Act of 2007 (S.1711), introduced by Senator Joe Biden (D-DE) coming closest to rational reform of crack cocaine penalties.  This bill eliminates the 100:1 ratio without increasing current powder cocaine penalties, and eliminates the mandatory minimum penalty for simple possession of crack cocaine to bring it in line with simple possession of any other drug.  While on the campaign trail, both Democratic candidates Obama and Clinton became co-sponsors of the Biden bill. 

            Senator Jeff Sessions (R-AL) is acknowledged for taking the first step in the Senate towards legislative reform when he introduced cocaine reform legislation in 2002.  In the 110th Congress he reintroduced his bill, S.1383, narrowing the gap between crack and powder cocaine to a 20:1 ratio, providing additional sentencing relief for very low-level offenders and eliminating the mandatory minimum for simple possession of crack cocaine.  His bill, with bi-partisan co-sponsors, however, decreases the amount of powder cocaine that would trigger the five- and ten-year mandatory minimum sentence,  despite the Sentencing Commission's finding that "there is no evidence to justify an increase in quantity-based penalties for powder cocaine offenses."[ii]  Senator Orrin Hatch (R-UT) is also commended for introducing legislation (S.1685), which also enjoys bipartisan support, to reduce the federal crack cocaine disparity without an increase in the current penalty for powder cocaine.  This bill also eliminates the mandatory minimum sentence for simple possession of crack cocaine, bringing it in line with simple possession of any other drug.  

            On the House side, Rep. Charles Rangel's bill, H.R. 460, has been consistently introduced each Congress and is now joined by H.R. 4545, introduced by Rep. Sheila Jackson Lee as a companion to the Biden bill.  The Fairness in Cocaine Sentencing Act of 2008, H.R. 5035, introduced by Rep. Bobby Scott, goes further than reform of the crack laws to include elimination of mandatory minimum penalties for all cocaine offenses.  

            Although none of the bills has been reported out of committee, hearings have been held in both the Senate and the House.  On February 12, 2008, the Senate Judiciary's Crime and Drug Subcommittee held a hearing on reforming the federal crack cocaine law.  On February 26, the House Judiciary's Crime, Terrorism and Homeland Security Subcommittee held a hearing on the various House bills addressing the crack cocaine issue. On the same day, the American Civil Liberties Union, the Open Society Policy Center, the Drug Policy Alliance, the Sentencing Project, the American Bar Association, Families Against Mandatory Minimums, and the National Association of Criminal Defense Lawyers  sponsored a grassroots lobby day on the Hill advocating for an elimination of the disparity.  

            Executive and Judicial Branch:  In addition to introduction of legislation, the drive to reform the crack cocaine penalty has gained significant momentum due to decisions by the U.S. Sentencing Commission, opinions by the Supreme Court, and actions by the President.  At the end of 2007, President Bush commuted the prison sentence of an individual convicted of a crack offense who served 15 years of his 19-year sentence.  In November 2007, despite strenuous objections from Attorney General Mukasey, guideline amendments put forward by the U.S. Sentencing Commission were enacted. The Commission unanimously revised the federal sentencing guidelines for crack cocaine, reducing the sentences for crack cocaine offenses by an average of 15 months, and, in December, made the reductions retroactive.  Also at the end of 2007, the Supreme Court ruled that federal judges can sentence crack cocaine offenders below the federal sentencing guidelines (though not below the mandatory minimum), if they find that the calculated guideline sentence produces an unduly harsh sentence due to the 100 to 1 ratio between crack and powder cocaine.  See Kimbrough v. United States, 128 S. Ct. 558 (2007).

Potential Allies, Potential Opposition, and Public Opinion:

Potential Allies:   

            Legislative:  Rep. Bobby Scott (D-VA), Rep. Sheila Jackson Lee (D-TX), Rep. Chris Shays (R-CT), Rep. Charles B. Rangel (D-NY), Sen. Hillary Rodham Clinton (D-NY), Sen. Richard Durbin (D-IL), Sen. Christopher J. Dodd (D-CT), Sen. Russell D. Feingold (D-WI), Sen. Carl Levin (D-MI). 

            Community:  American Civil Liberties Union, Open Society Policy Center, The Sentencing Project, Drug Policy Alliance, American Bar Association, Families Against Mandatory Minimums, National Association of Criminal Defense Lawyers, National Alliance of Faith and Justice, The United Methodist Church, Prison Fellowship, Legal Action Center, International Community Corrections Association, National Association for the Advancement of Colored People, National Council of La Raza, Leadership Conference on Civil Rights, National African American Drug Policy Coalition, National Bar Association, National Organization of Black Law Executives, Break the Chains Communities of Color & the War on Drugs, Brennan Center for Justice, NAACP Legal Defense & Educational Fund, Criminal Justice Policy Foundation, Interfaith Drug Policy Alliance, Penal Reform International, Lawyers' Committee for Civil Rights Under Law, Therapeutic Communities of America, National Juvenile Justice Network, Hip-Hop Summit Action Network, National Conference of Black Political Scientists, National Black Police Association, National Black Alcoholism and Addictions Council, Public Policy Section of the Academy of Criminal Justice Scientists, Unitarian Universalist Association of Congregations, Students for Sensible Drug Policy, National Association of Blacks in Criminal Justice, Citizens United for the Rehabilitation of Errants, Center for NuLeadership on Urban Solutions, Religious Action Center of Reform Judaism, Mennonite Central Committee Washington Office, Center for Children's Law and Policy, Center for Community Alternatives, Justice Policy Institute, Prison Legal News, StoptheDrugWar.org, International CURE, Virginia CURE, and the Constitution Project. 

Potential OppositionFraternal Order of Police Public Opinion:  The U.S. Sentencing Commission reported that it received public comment from over 30,000 individuals and organizations in support of making the crack cocaine guideline reduction retroactive. Public sentiment in favor of changing this sentencing structure runs deep.  Many judges also favor reform.  In 1996, the U.S. Judicial Conference passed a resolution opposing the existing disparity between crack and powder cocaine sentences. In 1997, a group of 27 federal judges sent a letter to the Senate and House Judiciary Committees, urging the correction of this dramatic sentencing disparity and arguing that the triggers for crack should equal those of powder cocaine.  The judges pointed out that the implementation of these laws had circumvented the will of Congress, i.e., "that the Federal Government's most intense focus ought to be on major traffickers" as opposed to bit players whose arrests will have no discernable impact on the drug trade.

Experts:   

  • Marc Mauer, The Sentencing Project
  • Douglas Berman, Professor of Law, Ohio State University
  • Peter Reuter, Professor in the School of Public Policy, University of Maryland
  • Federal Public and Community Defenders Sentencing Resource Counsel
  • Mary Price, Families Against Mandatory Minimums
  • Eric Sterling, former counsel, House Crime Subcommittee
  • Nkechi Taifa, Open Society Policy Center
  • Professor Charles Ogletree, Harvard Law School
  • Deborah Small, Break the Chains
  • Kemba Smith, Kemba Smith Foundation 

For Further Information

U.S. Sentencing Commission, Report to Congress:  Cocaine and Federal Sentencing Policy (May 2002), available at http://www.ussc.gov/r_congress/02crack/2002crackrpt.htm 

U.S. Sentencing Commission, Report to Congress:  Federal Cocaine Sentencing Policy (May 2007), available at http://www.ussc.gov/r_congress/cocaine2007.pdf

U.S. Sentencing Commission, Fifteen Years of Guideline Sentencing: An Assessment of How Well the Federal Criminal Justice System is Achieving the Goals of Sentencing  Reform (November 2004) http://www.ussc.gov/15_year/15year.htm

U.S. Sentencing Commission "Hearing on Cocaine and Federal  Sentencing Policy" Washington, D.C. (November 15, 2006). http://www.ussc.gov/hearings/11_15_06/AGD11_15_06.HTM

U.S. Sentencing Commission, Testimony of Nkechi Taifa on Cocaine Federal Sentencing Policy, November 14, 2006 

American Civil Liberties Union, Cracks in the System:  20 Years of the Unjust Federal Crack Cocaine Law, available at http://www.aclu.org/pdfs/drugpolicy/cracksinsystem_20061025.pdf

The Sentencing Project, Federal Crack Cocaine Sentencing, http://www.sentencingproject.org/Admin/Documents/publications/dp_cracksentencing.pdf 

Drug Policy Alliance, Cocaine and Pregnancy, available at http://www.drugpolicy.org/library/research/cocaine.cfm 

U.S. Dept. of Health and Human Services data on crack and cocaine use, http://www.oas.samhsa.gov/cocaine.htm 

Submission by NAACP Legal Defense and Educational Fund to the U.S. Senate Judiciary Committee, Subcommittee on Crimes and Drugs (Feb. 18, 2008), at available at http://naacpldf.org/content/pdf/war_on_drugs/Letter_to_Senate_Sub_Committee_on_Crime_and_Drugs.pdf

Recommendations for Federal Criminal Sentencing in a Post-Booker World http://constitutionproject.org/sentencing/article.cfm?messageID=245&categoryId=7 

Principles for the Design and Reform Of Sentencing Systems: A Background Report http://constitutionproject.org/sentencing/article.cfm?messageID=148&categoryId=7 

Mandatory Justice: The Death Penalty Revisited, http://constitutionproject.org/pdf/mandatoryjusticerevisited.pdf 


 

[i] U.S. Sentencing Commission, Report to Congress: Cocaine and Federal Sentencing Policy (1995); U.S. Sentencing Commission, Report to Congress: Cocaine and Federal Sentencing Policy (1997); U.S. Sentencing Commission, Report to Congress: Cocaine and Federal Sentencing Policy (2002); U.S. Sentencing Commission, Report to Congress: Cocaine and Federal Sentencing Policy (2007).

[ii] See USSC, Cocaine and Federal Sentencing Policy 8 (May 2007).

Last Updated on Wednesday, 19 November 2008 16:22
 
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