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July 17, 2007
THE CRACK COCAINE LEGACY: PUINISHMENT DISPARITY IN THE FEDERAL COURTS
In 1986 University of Maryland basketball sensation Len Bias was found dead from a cocaine overdose. Despite toxicology reports showing that the drug overdose resulted from powder cocaine, media reports connected the basketball star’s death to a “crack” cocaine overdose and continued to spread that misperception.
In response to the social and political ramifications of Bias’ tragic death, Congress enacted the Anti-Drug Act of 1986.
In a July 9, 2007 article written by Christopher Moraff and published in The American Prospect, The Sentencing Project’s Executive Director Marc Mauer was quoted as saying: “Congress was responding to a media and political frenzy and passed the law in record time, really, without any input from expert drug abuse specialists to determine what the appropriate response [to Bias’ death] might be.”
That piece of draconian legislation introduced into the federal sentencing scheme the infamous “100:1 crack/powder ratio” in sentencing for crack cocaine and powder cocaine convictions. In effect, under the Anti-Drug Act of 1986 and the U.S. Sentencing Guidelines, possession of five grams of crack cocaine automatically triggered a five-year mandatory minimum sentence whereas it took 500 grams of powder cocaine to trigger the same mandatory five-year minimum sentence.
The ADA of 1986 over the past two decades has produced a legacy of racial discrimination in drug sentencing. The United States Justice Department found that between 1994 and 2004 the actual period of incarceration for African-American drug offenders increased by 78 percent while, during the same period, actual period of incarceration for white offenders increased by only 28 percent.
“As a result,” reported Moraff, “African Americans now serve, on average, virtually as much time in jail for drug offenses as white [offenders] do for violent crimes.”
In addition to The Sentencing Project, a number of other groups have joined in a collective social chorus calling for an end to the sentencing disparity between crack and power cocaine convictions, including Families Against Mandatory Minimums (FAMM), the Drug Policy Alliance (DPA), the American Civil Liberties Union (ACLU), the National Association for the Advancement of Colored People (NAACP), and the conservative Rand Corporation.
Congress has responded with conservative and liberal lawmakers filing six bills to address the mounting political, judicial, and social criticism directed not only at the “100:1 crack/powder ratio” but mandatory minimum in the federal sentencing scheme. And the United States Supreme Court on June 11, 2007 in Kimbrough v. United States, 06-6330, decided to grant certiorari to decide the following questions:
“In United States v. Booker, 543 U.S. 220 (2005), this Court held that mandatory application of the U.S. Sentencing Guidelines violates a criminal defendant’s right under the Sixth Amendment to have facts that increase his or her sentence determined by a jury beyond a reasonable doubt. The Court further held that to avoid the Sixth Amendment violation, the Guidelines are to be held as advisory only, and as one of a number of number of factors both that a sentencing court must consider pursuant to 18 U.S.C. § 3553(a) in exercising its discretion in selecting a sentence and a that a court of appeals must consider when reviewing the sentence for reasonableness. In light of the Court’s holdings, the following questions are presented:
“(1) In carrying out the mandate of § 3553(a) to impose a sentence that is ‘sufficient but not greater than necessary’ on a defendant, may a district court consider either the impact of the so-called ‘100:1 crack/powder ratio’ implemented in the U.S. Sentencing Guidelines or the reports and recommendations of the U.S. Sentencing Commission in 1995, 1997, and 2002 regarding this ratio?
“(2) In carrying out the mandate of § 3553(a) to impose a sentence that is ‘sufficient but not greater than necessary’ on a defendant, how is a district court to consider and balance the various factors spelled out in the statute, and in particular, subsection (a)(6), which addresses ‘the need to avoid unwarranted disparity among defendants with similar records who have been found guilty of similar conduct?” See also: 2007 WL 1660977, 75 USLW 3657 (U.S.).
With a Roberts-Alito-Scalia-Thomas led conservative court and Congress paralyzed by political acrimony, there is little reason for hope. This against the backdrop that the U.S. Sentencing Commission has been involved in a protracted political effort to get Congress to eliminate the “100:1 crack/powder ratio” in order to foster some semblance of “fairness” in the federal sentencing scheme. The Sentencing Commission’s effort was chronicled by the Second Circuit in United States v. Castillo, 460 F.3d 337 (2nd Cir. 2006). The appeals began the chronicle by noting:
“The 100:1 ratio between crack and powder cocaine first came into being as a result of the Anti-Drug Abuse Act of 1986, Pub.L. No. 99-570, 100 Stat. 3207 (1986) (‘1986 Act’”). The ratio refers not to a comparison of the length of a sentence given for offenses involving the two drugs but to the quantity of each drug that is required to trigger certain sentences. The relevant part of the 1986 Act has been codified at 21 U.S.C. § 841(b) and calls for 5 kilograms of cocaine but only 50 grams of cocaine base (commonly referred to as ‘crack’) to trigger a mandatory minimum of ten years, while 500 grams of cocaine but only 5 grams of cocaine base will trigger a mandatory minimum of five years.” Id., at 344-45. See also: United States v. Smith, 359 F.Supp.2d 771, 777 (E.D.Wis.2005); 21 U.S.C. §§ 841(b)(1)(A)(ii)-(iii), 841(b)(1)(B)(ii)-(iii).
As Marc Mauer noted in recent testimony before Congress, the Second Circuit also observed “the speed with which the 1986 Act moved through Congress ,,,” Id. See also: United States Sentencing Commission, Special Report to the Congress: Cocaine and Federal Sentencing Policy, February 1995 (“1995 Report”), at 116-17. The speed of enactment left no legislative trail relative to Congressional intent, especially for the 100:1 ratio – except for scattered statements by various lawmakers. Lacking any real “on-the-record” Congressional intent for clarification, the U.S. Sentencing Commission in its 1995 Report adopted “five congressional conclusions” to determine legal basis for the “100:1 crack/powder ratio” [more commonly referred to as “sentencing disparity]:
• The “extraordinarily addictive nature of crack cocaine, both in relative and absolute terms;
• The higher correction between crack cocaine use and the commission of other serious crimes than with other drugs;
• The ‘especially perilous” physiological effects of crack cocaine;
• The sense that “young people were particularly prone to using crack cocaine”; and
• The increasingly widespread use of crack cocaine because of its high potency, low cost, and ease of manufacture, transportation, and administration.
Id., 1995 Report, at 118; United States v. Castillo, supra, at 345.
The U.S. Sentencing Commission actually incorporated the “100:1 crack/powder ratio” in the Sentencing Guidelines in 1987. See: S.G. § 2D1.1. See also: 18 U.S.C. § 841(b). This guideline mandated that only 1.5 kilograms of crack would result in a base offense level of 38 while taking 150 kilograms of cocaine powder to reach the same offense level.
Congress was not finished with putting its stamp of disapproval on “crack” cocaine. With the Anti-Drug Abuse Act of 1988, the Castillo court pointed out that “… Congress further differentiated the punishment of crack and powder cocaine offenses by creating a mandatory minimum penalty for simple possession of crack cocaine, under which possession of over five grams of crack is punishable by a minimum of five years in prison ..The only mandatory minimum for simple possession of a controlled substance, it is distinguishable from the penalties for simple possession of powder cocaine, for which possession in any quantity is a misdemeanor subject to a maximum penalty of one year in prison. Id., at 345-46. See also: 21 U.S.C. § 844; United States Sentencing Commission, Special Report to the Congress: Cocaine and Federal Sentencing Policy, April 1997 (“1997 Report”), at 3.
This proved to be a controversial piece of legislation as the “racial disparities” in crack/powder cocaine sentencing became increasingly more evident. Not immune from political backlash, especially those with racial implications, Congress moved to alleviate some of the disparities caused by its harsh mandatory minimums and the Sentencing Guidelines’ “100:1 crack/powder ratio.” Lawmakers passed the Mandatory Minimum Sentencing Reform Act of 1994 which created what is called a “safety-valve provision” that allows criminal defendants to escape mandatory minimum provisions if they meet certain requirements. See: 18 U.S.C. § 3553(f). Then Congress, with the Violent Crime Control and Law Enforcement Act of 1994, instructed the U.S. Sentencing Commission “to study federal sentencing policy on all forms of cocaine and to report back to Congress with recommendations on whether the current structure with the disparate penalties for crack and powder cocaine should be retained or modified.” United States v. Castillo, supra, at 346.
It was this legislation that produced the Commission’s “1995 Report.” While the Report expressed a number of the Commission’s concerns about the 100:1 ratio, it stopped short of saying that the sentencing disparities for the two offenses were racially motivated. This position was taken by the Commission even though African-American offenders were, as the Second Circuit pointed out, “bearing the brunt of the higher sentences for crack cocaine.” Castillo, supra, at 346. The Castillo court then outlined the following concerns and actions by the Commission:
“The Sentencing Commission was also troubled that the 100:1 ratio meant that low-level street dealers of crack were being sentenced far more severely than the high-level powder-cocaine suppliers who had sold the street dealers the raw material to make the crack in the first place. [1995 Report at xii-xiii]. The Commission concluded that, while some differential was warranted between crack and powder cocaine, the 100:1 ratio was disproportionate given the relative harms of the two forms of the drug, and noted that, to the extent that some of the specific ills associated with crack use were already taken into account through other enhancements such as specific offense characteristics, the use of the 100:1 ratio might result in what is in effect double punishment. [1995 Report at xiii-xiv]. While the Commission did not propose any particular revision to the Guidelines or the statute in terms of the ratio, the Commission stated its intention to study the matter further and to present revised Guidelines relevant to cocaine offenses within the next year. [1995 Report at xv].
”Several months after the 1995 Report was issued-apparently concluding that the goals of the crack/powder differential could best be addressed by adjusting specific enhancements instead of maintaining the differential-the Commission proposed a revision to the Guidelines that would eliminate the differential entirely. Under this proposal, the term ‘cocaine’ would be re-defined to encompass all forms of that drug, including crack as well as powder, thus reducing the proposed penalty range associated with a particular quantity of crack. See 60 Fed.Reg. 25074, 25075-76 (May 10, 1995). Additionally, seeking to target ills that were more associated with crack use than with powder use, the proposal included increased enhancements for use of a weapon in connection with controlled substance offenses and an application note that would specify that bodily injury to a victim would be grounds for an upward departure. Id. at 25076-77. This proposal did not have the unanimous support of the Sentencing Commission, however. Three of the seven members on the Commission dissented from this recommendation, arguing that some differential was required because sentencing enhancements could not entirely account for the different harms between the two forms of the drug. See 1997 Report at 1. Notwithstanding this lack of unanimity, the proposed changes were to go into effect pursuant to 28 U.S.C. § 994(p) in early November 1995, unless Congress chose to modify or disapprove the recommended changes before that time.” Castillo, supra, at 346-47.
Congress chose to do the latter. The House Committee on the Judiciary’s Subcommittee on Crime held one day of hearings on the Commission’s recommendations before rejecting them on October 30, 1995. The Second Circuit then pointed out:
“Recognizing the Commission's strong feeling that the 100:1 ratio was not justified, Congress directed the Commission to propose new revisions of the crack/powder Guidelines, but cabined the authority of the Commission with instructions that ‘the sentence imposed for trafficking in a quantity of crack cocaine should generally exceed the sentence imposed for trafficking in a like quantity of powder cocaine’ and that the Commission's recommendations should ‘propose revision of the drug quantity ratio of crack cocaine to powder cocaine under the relevant statutes and guidelines in a manner consistent with the ratios set for other drugs and consistent with the objectives set forth in section 3553(a) of title 28 United States Code.’ Upon signing this bill into law, President Clinton took the opportunity to state specifically that it was inappropriate to ‘dramatically reduc[e] the penalties for crack,’ given the ‘devastating impact [of crack] on communities across America, especially inner-city communities,’ while acknowledging that ‘[s]ome adjustment’ of the ‘substantial disparity between sentences for crack as compared to equal amounts of powder cocaine’ was warranted. See: Castillo, supra, at 347. See also: Presidential Statement on Signing S. 1254, 1995 WL 634347 (Oct. 30, 1995).
The Commission’s 1997 Report was in response to Congress’ 1995 directive. The Commission said that while both crack and powder cocaine are dangerous, the federal sentencing scheme should reflect that there are more dangers associated with crack. The Commission, however, concluded that the current sentencing policy for crack was not only a mismanagement of limited federal resources but it created an appearance of unfairness because, as the Second Circuit noted, “most offenders convicted of crack distribution were African-American while most crack users were white.” Castillo, supra, at 347. To address these concerns, the Commission recommended that Congress “revise the statutory mandatory minimum scheme by increasing the quantity of crack that triggers a five-year minimum from 5 grams to somewhere between 25 and 75 grams and by decreasing the quantity of powder cocaine that triggers a five-year mandatory minimum from 500 grams to somewhere between 125 and 375 grams-effectively recommending that the ratio be reduced from 100:1 to 5:1, if the top and bottom range for each form of the drug were used similarly.” Id., at 347-48.
The Commission urged Congress to take prompt action on its proposals, offering to lend its expertise to both Congress and the Executive Branch “at any time” it was needed. 1997 Sentencing Report at 9. The Commission also strongly expressed its firm belief that a mandatory minimum for simple possession of crack could not be justified anymore than the 100:1 ratio, suggesting that the penalty for simple possession of crack should be the same as the penalty for simple possession of powder cocaine. Id., at 10.
This time the 1997 Report was supported by the Clinton Administration and thirty federal judges who had been former U.S. Attorneys. The Clinton Administration proposed revising the 100:1 ratio by raising the crack trigger to 25 grams and lowering the powder cocaine trigger to 250 grams. But Congress was not moved by either the Commission’s recommendations or the political support it had garnered from the Clinton Administration and the federal judges. While a number of bills were introduced relative to the recommendation, none were passed.
The horrific sentencing disparity issue, however, remained on the political radar screen despite its setbacks with Congress. The Second Circuit discussed at length these political concerns:
” ,,, There was generally bipartisan support for the idea that the 100:1 ratio was too great, although not consensus as to the best way to reduce it. Bills to reduce the ratio-some by raising the quantities for crack that would trigger the minimum, others by lowering the quantities of powder that would trigger the minimum, still others by doing both-continued to be introduced over the next few years. For example, in 2000, Senator Spencer Abraham (R-Michigan) introduced an amendment to bankruptcy legislation that would have lowered the ratio to 10:1, by leaving the quantity of crack that triggered the five-year minimum intact but by lowering the quantity of powder cocaine from 500 grams to 50 grams-in effect increasing the sentences for powder cocaine rather than reducing them for crack. This legislation passed the Senate in 2000 by one vote but went no further.
”In 2001, Senators Jeff Sessions (R-Alabama) and Orrin Hatch (R-Utah) introduced the Drug Sentencing Reform Act of 2001, which proposed to lower the ratio to 20:1, by decreasing the amount of powder cocaine and increasing the amount of crack cocaine necessary to trigger each mandatory minimum, thereby making crack cocaine sentencing somewhat more lenient while strengthening the penalties for powder. (Statement of Sen. Sessions) (noting that “the 100-to-1 disparity in sentencing between crack cocaine and powder cocaine, which falls the hardest on African-Americans, is not justifiable” and asking colleagues “to cast aside the politics of the Left and the Right and to support this bill on the merits as a matter of plain, simple justice”). This bill was referred to the Senate Committee on the Judiciary but was never voted upon.
”In a further attempt to move the issue forward, Senators Patrick Leahy (D-Vermont) and Hatch, the then-Chairman and Ranking Member of that committee, wrote the Commission to ask for another report on the penalty structures for cocaine offenses. Castillo, supra, at 348-49. [Internal citations omitted]
The Commission’s 2002 Report was issued in response to this request. That Report “firmly and unanimously” expressed its belief “that the current federal cocaine sentencing policy is unjustified and fails to meet the sentencing objectives set forth by Congress in both the Sentencing Reform Act and the 1986 Act.” 2002 Report at 91.
The 2002 Report added that the evidence no longer supported the notion that crack cocaine caused more harm than powder cocaine and that the 100:1 ratio greatly overstated what the Second Circuit said are “the comparative problems with crack with respect to addiction levels, prenatal exposure, and propensity of youth to use crack cocaine; the penalties for crack cocaine offenses have the greatest effect on low-level street dealers of relatively small amounts, instead of hitting serious dealers the hardest; the penalties overstate the seriousness of most crack cocaine offenses; and the severity of the penalties lead to the troubling perception of ‘improper racial disparity’.” Id.
The Commission recommended “disentangling some of the harms accounted for in the 100-to-1 drug quantity ratio” by taking the following steps:
• Using specific sentencing enhancements to target the minority of offenders who engage in the most harmful conduct that concerned Congress in 1986;
• Decreasing the residual quantity-based penalties that apply to all crack cocaine offenders accordingly (to at least 25 grams for the five-year mandatory minimum penalty, and at least 250 grams for the ten-year mandatory minimum penalty; and
• Maintaining at current levels the quantity-based penalty for powder cocaine offenses. Id., at 104-11. See also: Castillo, supra, at 348.
The Commission once again recommended that Congress repeal the five-year mandatory minimum penalty for simple possession of five grams or more of crack cocaine. Id., at 109.
But this time the commission faced a much greater political obstacle. The Bush administration and its Department of Justice led by John Ashcroft believed that crack cocaine was associated with more social harms than powder cocaine. A Republican-controlled Congress was not receptive. As the Second Circuit observed:
”A number of bills were proposed in the wake of the 2002 Report. See, e.g., H.R. 345, 108th Cong. (2003) (proposing that the penalties for crack and powder cocaine be equalized by increasing the penalties for powder offenses); H.R. 1435, 108th Cong. (2003) (proposing that the penalties for crack and powder cocaine be equalized by reducing the penalties for crack offenses). Indeed, just last month Senator Sessions-joined by Senators Mark Pryor (D-Arkansas), John Cornyn (R-Texas), and Ken Salazar (D-Colorado), all former state Attorneys General-introduced the Drug Sentencing Reform Act of 2006, which proposed to reduce the disparity to 20:1 by reducing the penalty for crack cocaine while raising the penalty for powder cocaine. See S. 3725, 109th Cong. (2006); Press Release of Senator Sessions, Sens. Sessions, Pryor, Cornyn and Salazar Introduce Drug Sentencing Reform Act. However, while bills continue to be introduced that would reduce or equalize the ratio in some fashion, nothing to this end has been adopted. Thus, the mandatory minimums and 100:1 ratio in the Guidelines remain in place.” Castillo, supra, at 350.
Federal judges routinely find themselves in a legal dilemma. 18 U.S.C. § 3553(a)(6) provides that “the need to avoid unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct.” This statute implies a certain amount of discretion to ensure fairness. However, some federal statutes require imposition of mandatory minimums without regard to fairness. Even if the Sentencing Guidelines recommend a lesser minimum, judges are bound to impose the mandatory minimum – even if these minimums produce sentencing “disparities among defendants with similar records who have been found guilty of similar conduct.”
A classic example of the disparity produced by mandatory minimums can be seen by examining two federal sex offense statutes. 18 U.S.C. § 2243(a) provides that an adult who engages in sexual conduct with a minor (12 thru 18) faces a maximum penalty of 15 years. There is no mandatory minimum sentence exposure. But the opposite is true with 18 U.S.C. § 2422(b) which provides that an adult who uses a computer to “chat” with an undercover agent to entice a minor (18 years or under) to engage in sexual conduct faces a mandatory 10-year minimum and a maximum of life imprisonment.
In effect, an adult who travels down the interstate to meet a teenager (who is actually an adult undercover agent) with intent to have sex with the minor faces a mandatory ten-year minimum and a maximum of life imprisonment while an adult who actually has sex with a minor faces no mandatory minimum and only a 15-year maximum penalty. There is something so fundamentally flawed about laws that punish an offender more harshly for having an “intent” to have sex with a minor than it does for an offender who actually “has” sex with a minor.
It is that same kind of Congressional absurdity that punishes 5 grams of crack cocaine more harshly than 499 grams of powder cocaine. It is little wonder that 75 percent of the American public have lost faith in Congress’ ability to govern.
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