President Obama recently signed legislation reducing, but not eliminating, the disparate ways in which federal criminal law penalizes those involved with crack cocaine and those involved with powder cocaine. This becomes the second small step in an attempt to eliminate the unjust fashion in which the federal drug laws distinguish between crack cocaine and powder cocaine, but there is still a long way to go.
Following the death of University of Maryland basketball star Len Bias from crack cocaine on June 19, 1986, Congress believed it had to adopt strong penalties to stem the growth of crack cocaine use. Congress believed that crack cocaine was more dangerous than the powder cocaine that was used to “cook” crack. Therefore, despite the fact that, scientifically, there is no difference between crack and powder cocaine, Congress passed laws that treated the two very differently. This disparate treatment had the greatest effect on African-Americans because Caucasians tended to favor powder cocaine whereas African-Americans tended to favor crack cocaine.
In federal court, an individual’s sentence is determined by two factors.
First, there are the statutory penalties that set a sentence’s “floor” and “ceiling.” Most criminal statutes do not provide for mandatory minimum sentences (i.e. a “floor”). Nevertheless, drug statutes are among the few statutes with mandatory minimum sentences of five and ten years imprisonment. In cases where there are such mandatory minimum penalties provided by statute, the mandatory minimum sentence represents the very minimum sentence the judge must given unless the government requests a sentence below the mandatory minimum sentence because a defendant has cooperated.
The second factor in determining a sentence is a defendant’s sentencing guidelines. The guidelines provide an advisory sentencing range to a judge with the proviso that the range cannot be below the “floor” or above the “ceiling” set by the statute. In other words, if a defendant’s statutory penalty range is 10 years (120 months) to life and his or her guidelines are 97-121 months, the guideline range effectively becomes 120-121 months. In drug cases, the guideline range is based mostly on a defendant’s criminal history and the type and amount of drugs involved. Since the United States Supreme Court’s decision in United States v. Booker, the guidelines are advisory and the judge has a lot of discretion to sentence below or above a defendant’s guideline range, but, again, the judge cannot sentence below the mandatory minimum without a “cooperation motion” by the government.
Because of the crack hysteria, Congress set the statutory penalties for crack and powder at a 100:1 ratio. In other words, the mandatory minimum penalties for powder kicked in at an amount 100 times greater than for crack. For example, if a person possessed with the intent to distribute 50 grams of crack he or she faced a ten year mandatory minimum sentence. On the other hand, a person had to possess with the intent to distribute 5 kilograms of powder to face the same ten year mandatory minimum sentence. Nevertheless, in August of this year, President Obama signed a bill decreasing the ratio from 100:1 to 18:1. Now, for example, a person must possess with the intent to distribute 280 grams of crack (instead of the 5 grams) to face the mandatory minimum sentence of ten years.
As I said, this is the second step, toward sanity. The first step was taken in 2007 when Congress amended the sentencing guidelines to reduce the crack penalties by two levels.
Nevertheless, the new law raises several questions.
First, will it be made retroactive in order to benefit the many thousands of people in federal prison who were convicted of the unjust crack laws? When the guidelines were changed in 2007, those changes were made retroactive, however, there is still no word as to whether the statutory changes just signed by President Obama will be made retroactive.
Second, will the sentencing guidelines be changed again to recognize the new “floors” set by the statutory change? The sentencing guidelines still call for a sentence of 121-151 months for a defendant, without any criminal history, who is convicted of possession with the intent to distribute 280 grams of crack cocaine. Of course, as mentioned above, the judges do not have to follow the guidelines, but, it is still important to amend the guidelines to reflect the new law.
Third, many judges, recognizing that there was no basis to treat crack and powder differently, were employing their own 1:1 ratio in computing a defendant’s sentencing guidelines, although they could not sentence below the statutory “floor” absent a “cooperation motion” by the government. What will happen now? Will those judges still use the 1:1 ratio rather than the new 18:1 ratio?
As noted above, there is also still a long way to go. First, ALL disparities between crack and powder should be eliminated. Second, Congress must do away with mandatory minimum penalties where the only way to get around those minimums is through “cooperation motions” by the government. These mandatory minimums result in the ridiculously high imprisonment rate in the United States and often produces highly questionable “snitch” testimony from defendants hoping to obtain a favorable “cooperation motion” from the government.
Of course, it is imperative for defendants charge with any federal drug offense to hire an attorney that practices regularly in federal court and who is familiar with the intricacies related to sentencing in drug cases. An experienced federal lawyer will be able to prepare an effective sentencing memorandum educating a judge about the unfair disparities in the way crack cocain and powder cocain are treated in order to obtain the least possible sentence for his or her client.
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