20:1 Crack/Powder Ratio Still Flawed; Incarceration of Most Drug Offenders Absurd and Obscene

By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair

In May 2007 the U.S. Sentencing Commission sent a report to Congress recommending that the 100:1 sentencing ratio in crack/powder cocaine cases be reduced to 20:1. The 100:1 ratio under the U.S. Sentencing Guidelines required federal district courts to treat one gram of crack cocaine as the equivalent of 100 grams of powder cocaine. That disparate sentencing scheme created thousands of horrendous miscarriages of justice in the federal sentencing process with all sorts of ugly racial implications. Crack cocaine offenders, disproportionately African American, were routinely punished 100 times more severely than powder cocaine offenders.

In November 2007 Congress approved the 20:1 ratio amendment suggested by the Sentencing Commission—a modification designed to reduce the disparity between crack/powder cocaine sentences. But the official reasoning of the 20:1 ratio is just as flawed as was the 100:1 ratio. It just as offensive, with its inherent racial disparity, to punish crack cocaine offenders 20 times more severely than powder cocaine offenders as it was to punish them 100 times more severely.

The month after Congress adopted the 20:1 ratio the U.S. Supreme Court gave this Sentencing Guidelines (“Guidelines”) amendment more legal force in the case of Derrick Kimbrough. In the Kimbrough case the court held a sentence imposed within the Guidelines could be unreasonable because of disparity between crack and powder cocaine sentencing recommendations.

Section 3582 of Title 18 of the United States Code allows federal inmates who believed they had received unreasonably harsh sentences for crack cocaine offenses to file for a reduction of their sentences following the 2007 amendment. Hundreds, if not thousands, immediately did so.

But this turn of events in the federal sentencing process was not warmly embraced by some federal courts. It would take two more U.S. Supreme Court decisions to whip some lower federal courts into line, particularly the Eighth Circuit Court of Appeals. The first lash against the Eighth Circuit came in the case of James Eric Moore who was convicted of one count of possessing crack cocaine. The Guidelines recommended a sentence of between 151 to 188 months. Moore asked the sentencing judge to depart downward based on the disparity between crack/powder cocaine sentencing. The judge refused, saying she didn’t believe she had the authority to depart downward. The judge then imposed a 188 month sentence.

The Eighth Circuit Court of Appeals agreed with the sentencing judge. Two remands later the Eighth Circuit finally got the message from the Supreme Court that its Kimbrough decision authorized sentencing judges to depart downward. The second and final remand in the Moore case by the Supreme Court came in October 2008.

In January 2009 the Supreme Court dealt with yet another case originating out of the Eighth Circuit. This case involved Steven Spears who was found guilty of conspiracy to distribute at least 50 grams of crack cocaine and at least 500 grams of powder cocaine. Based on Spears’ criminal history and the 100:1 ratio, the Guidelines recommended a sentence between 324-405 months. The sentencing judge was not satisfied with the 100:1 ratio, so he recalculated Spears’ sentence based on 20:1 ratio the Sentencing Commission had recently submitted to Congress in 2007. This revised calculation produced a sentence range between 210 to 262 months. The judge then sentenced Spears to 240 months.

The Eighth Circuit reversed the judge’s sentencing decision, applying the same rationale it had established in Moore’s case—that a sentencing judge did not have the authority to depart downward from the 100:1 ratio. On January 21, 2009 the Supreme Court reversed the Eighth Circuit for a fourth time within a period of less than two years in the Spears/Moore cases and said the sentencing judge was correct in his downward departure formula.

Despite the 2007 amendment to the crack/powder cocaine ratio, and the two most recent Supreme Court decisions in the Moore and Spears cases, the Fifth Circuit has found only one crack cocaine case since October 31, 2008 worthy of remand for a possible sentence reduction under Section 3582. This was the case of Billy Wallace decided on November 20, 2008. But the Fifth Circuit upheld the denial of sentence reduction requests by district courts in the following eleven cases during that same time frame:

  • Ricky Lamont Garrett, (March 31, 2009);
  • Demetrius Terrell Woods,  (March 23, 2009);
  • Raymond Charles Cox,  (March 23, 2009);
  • Eric Deshon Bolden (March 6, 2009);
  • Shannon Dewayne Davis (March 6, 2009);
  • Marcus Tremain Arnold (January 7, 2009);
  • Floyd Henderson (December 23, 2008);
  • Kelly Fernando Munoz (December 23, 2008);
  • Ravis Donnell Kennedy (December 18, 2008);
  • Dwayne Antonio Mayes (December 10, 2008); and
  • Ricardo Gonzales-Camacho (November 25, 2008).

It would be safe to assume that most, if not all, of these individuals are minorities. The Fifth Circuit found one or more procedural reasons for upholding the denial of their sentence reduction requests.

It is impossible to say how many other Section 3582 sentencing reduction requests have been granted by the district courts in the Fifth Circuit, but it is abundantly clear that if such a motion is denied by a district court, there will be no sentencing relief emanating from the Fifth Circuit Court of Appeals.

On his 100th day in office President Obama called upon Congress to address the sentencing disparity between crack/powder cocaine. The president certainly has an eye toward eliminating the current 20:1 ratio because it is as flawed as the 100:1 ratio. The President’s call to action is sorely needed. Politically conservative courts like the Fifth, Fourth and Eighth Circuits are not receptive to the crack/powder cocaine ratio being eliminated. These are the same judges who support severe time limitations, procedural bars, and a host of other restrictive measures designed to keep the federal courthouse doors closed to most, if not all, except the rich and powerful.

These kinds of conservative judges, and those in the political process who support their conservative ideology, are the reason why this nation incarcerates 25% of the world’s prison population even though America represents only 5% of the world’s population. Sen. Jim Webb, D-Virginia, finds these statistics so troubling that he has enlisted the support of a dozen or more fellow senators to create a “blue ribbon” commission, much like the 9/11 Commission, to study the nation’s prison system—its overcrowded inmate population, its violence, its corruption, and its inability to reform those it cages.

The Virginia senator, who served as Secretary of the Navy under President Ronald Reagan, recently told the media that every facet of the prison system should be examined, particularly “the elephant in the bedroom in many discussions … the sharp increase in drug incarceration over the past three decades. In 1980, we had 41,000 drug offenders in prison; today we have more than 500,000, an increase of 1,200 percent.”

The gross disparity between crack/powder cocaine sentences is certainly one of the reasons for this dramatic increase, but, of course, increase drug supply fueled by a seemingly insatiable demand is the primary reason. More people want drugs for a litany of reasons and excuses—and so long as this demand exists, there will be those willing to feed it with ever-increasing supplies of narcotics. The demand/supply problem has escalated to the point that the call to “legalize drugs” has become a clarion call in even the most respected social and political quarters.

“Something has changed in the past few months,” Bruce Mirken of the Marijuana Project told Reuters recently. His group is one of a network of 30 such groups calling for the legalization of what Reuters called the most widely-used illegal drug in the United States. “In the first three months of this year we’ve been invited to national cable news programs as often as in the entire year before.”

The bloody drug cartel violence in Mexico, which is gradually spilling over into the United States, and the unparalleled media coverage it has received in this country has also contributed significantly to the increasing calls for drug legalization. The rationale is clear, “take the profit out of drugs by legalizing them” and this “will end the violence.”

Reuters reported on April 30, 2009 in a Bernd Debusmann column that recent public opinion polls show support for marijuana legalization over the past four decades has increased from 15 to 44 percent. Right now 54 percent of Californians favor legalizing marijuana. Reuters pointed out that four years ago 500 economists, including three Nobel Prize winners, called upon former President George W. Bush to show how marijuana prohibitions justified “the cost to taxpayers, foregone tax revenues and numerous ancillary consequences.”

We agree with Senator Webb that the nation’s prison system currently houses thousands of “passive users and minors dealers” whose incarceration serves no legitimate penological objective, it is unclear that government-sponsored “marijuana stores, “meth clinics,” or the complete legalization of all illicit drugs will curb drug violence and reduce crime. Not to mention, the social byproducts of legalized drug use and addiction—lost work productivity, increased risks of vehicular/workplace accidents, suicides, depression, mental disorders, reduced individual self-esteem, and a social tolerance of failure in every walk of life—have yet to be calculated.  But, one thing is clear, incarceration of drug users and small time drug peddlers, in an attempt to stem the demand for illegal drugs, is an absurd and obscene approach.

President Barak Obama was upfront with the American people when he decided to seek the presidency. “Yes, I inhaled,” he told supporters. “Frequently. That was the point.” But the president, like many others, had the good judgment and common sense to abandon his drug use. His family, his children, his social standing, and his political ambitions became more important than the passing, idle pleasures associated with drug use.

Would Barak Obama have had the physical stamina, the moral courage, and the psychological fortitude to wage the grueling two-year battle for the presidency had been “snortin’ the coke” and “chippin’ with the dope”? We think not. He has inspired us all with his unrelenting hope, his dynamic personality, and his surreal calm in the hour of crisis—something he could not have accomplished had he been on the “speed highway” under meth fuel.

Without question, Congress should eliminate the terribly unfair disparity between crack/powder cocaine; and State legislatures need to find ways release petty non-violent drug offenders from their prison systems, and to create meaningful diversionary programs to keep such offenders out of the criminal justice system altogether. There are a host of meaningful solutions to the nation’s drug problem and criminal justice experts know what they are. They are not to be found by those profiting from the nation’s ever growing “prison industrial complex.” But, before the solutions can be implemented our political leaders must put aside their partisan agendas and confront the problem with a concerted determination to solve it—not politicize it.

By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair