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Crack Cocaine Sentencing Reform
Update
Reducing the Crack and Powder Cocaine Sentencing Disparity Should Also Reduce Racial Disparities in Sentences and Prisons -- Washington, DC (July 28, 2010) -- The House of Representatives today passed the Fair Sentencing Act of 2010, adopted in the Senate earlier this year by unanimous consent. Currently, Federal drug sentences for possession and sale are based on the weight of the controlled substance. And for over two decades, possession of five grams of cocaine base (crack cocaine), without intent to distribute, has triggered the same mandatory five-year sentence as distribution of 500 grams of powder cocaine. This legislation eliminates that mandatory minimum. Under current law, a powder cocaine defendant must possess or sell 100 times the amount of cocaine to receive the same sentence as a crack cocaine defendant. ....more
On March 17, the U.S. Senate approved a bill to reduce crack cocaine sentences, taking us one step closer to final passage of a reform bill this year (click here to see the bill in PDF form). This legislation would increase the amount of crack cocaine necessary to trigger the 5-year mandatory minimum sentence from 5 grams to 28 grams, while the amount necessary to trigger the 10-year mandatory minimum would increase from 50 grams to 280 grams. This results in an 18:1 crack-powder sentencing disparity, instead of the current 100:1 ratio. The bill also would repeal the 5-year mandatory minimum sentence for simple possession of crack.
Note that these quantity changes only affect application of the mandatory minimum sentences until the U.S. Sentencing Commission adjusts the Sentencing Guidelines accordingly. Other provisions of the bill direct the Sentencing Commission to include new aggravating and mitigating factors in the sentencing guidelines. The Sentencing Commission is to promulgate the necessary amendments within 90 days of the bill’s enactment.
You may be aware that the House Judiciary Committee passed legislation, introduced by Rep. Bobby Scott (D-VA), to reduce crack cocaine sentences to the current levels applicable to powder cocaine. The full House now must vote on either the Senate or House versions. While nothing is set in stone, the Senate compromise greatly reduces the possibility that final legislation will equalize penalties for the two drugs. Although NACDL firmly believes that equalization is the only principled and just approach (listen to President Cynthia Hujar Orr discuss the bill on National Public Radio), we are grateful to Senator Durbin (D-IL) for his efforts to ameliorate this irrational and unnecessarily harsh sentencing scheme. According to Sentencing Commission estimates, the Senate-passed bill would reduce the average crack sentence by more than 25%.
Both bills are silent as to (1) effective date and (2) retroactivity. When no specific effective date is provided, the statute becomes effective upon the date the President signs the bill and is ordinarily deemed to apply to offenses committed on or after that date.
NACDL urges Congress to adopt the 1995 recommendations of the U.S. Sentencing Commission and reduce federal sentences for offenses involving crack (cocaine base) to the same levels as those involving other forms of cocaine.
Federal law mandates a minimum sentence of five years for first-time possession of more than 5 grams of crack, but allows probation for possession of the same quantity of powder cocaine (from which crack is easily manufactured). It takes 100 times as much powder cocaine (500 grams) — combined with the intent to distribute the drug — to trigger the same 5-year mandatory minimum sentence. This 100:1 ratio likewise applies to the ten and twenty-year mandatory minimums and the sentencing guidelines. As affirmed in the Journal of the American Medical Association, there is no scientific basis for this excessive disparity. This is quite troubling in light of the Sentencing Commission’s finding that 85% of defendants receiving the harsher penalties for crack are black — even though the majority of crack users are white. Because even the appearance of discrimination erodes public confidence in our justice system, Congress should right this wrong.
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National Association of Criminal Defense Lawyers (NACDL)
1660 L St., NW, 12th Floor, Washington, DC 20036
(202) 872-8600 • Fax (202) 872-8690 •
assist@nacdl.org
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