News Release ~ 7/28/2010

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.

The crack-powder sentencing disparity has been one of the chief causes of the overrepresentation of minorities in the federal prison system, as powder cocaine distributors, who are mostly Caucasian, drew relatively reasonable sentences while minority crack dealers – most of them minorities and most of them retailers – stayed in prison years longer for what is now recognized as a chemically-identical form of the same drug. And while the legislation fails to eliminate the sentencing disparity completely, it does reduce that disparity to roughly 18:1. When the bill becomes law, distribution of a gram of crack will draw roughly the same sentence as distribution of 18 grams of powder.

As this measure represents progress toward a rational domestic drug policy, it is welcomed by the National Association of Criminal Defense Lawyers (NACDL).

NACDL has fought racial injustice for over 50 years, and for a generation, NACDL has maintained that the penalty for possession of a drug should never be more harmful to a person than the drug itself. Indeed, NACDL has spent decades working for the complete elimination of this disparity through testimony before the House, the Senate and the U.S. Sentencing Commission, amicus efforts in the courts, coalition building, and public education campaigns.

As the late William B. Moffitt, then treasurer of NACDL, said in his testimony before the House Judiciary Committee in 1995, “The sentencing guidelines declare that race and socioeconomic status are irrelevant in the determination of a federal sentence. The existence of a 100:1 ratio between the weight of crack cocaine and all other forms of cocaine renders the promise of Congress and the Sentencing Commission, to establish and maintain a race neutral sentencing regime, but a cruel hoax.”

Commenting on today’s passage in the House, NACDL President Cynthia Hujar Orr said, “The disparate ratio between the quantity of the identical powder and crack cocaine required for a particular punishment has been a stain on the criminal justice system for more than 20 years. When the law was passed, crack was thought to be one of the most destructive forces in minority communities. It soon became apparent that overincarceration due to the crack cocaine laws was even more destructive to those communities. Today Congress reduced the sentencing disparity to an 18 to 1 ratio, a big step in the right direction. NACDL calls upon prosecutors to exercise their discretion under the Department of Justice''s current charging policies to fully eliminate the racial disparity in those sentenced under the harsher crack penalties.”

Selected NACDL Materials
April 2009 Letters to House and Senate by President John Wesley Hall – Re: H.R. 1459, the Fairness in Cocaine Sentencing Act; Letter to Senate Supporting Elimination of Crack Disparity 

July 2009 Letter to House by President John Wesley Hall – Re: H.R. 3245, the Fairness in Cocaine Sentencing Act 

February 2008 President Carmen Hernandez, Written Statement before Senate Judiciary Committee on Federal Cocaine Sentencing Laws 

February 2008 Letters to House and Senate from President Carmen Hernandez, Letter to Senate in Support of The Drug Sentencing Reform And Cocaine Kingpin Trafficking Act; Letter to House of Representatives in Support of The Drug Sentencing Reform And Cocaine Kingpin Trafficking Act 

February 2003 President Lawrence Goldman, Joint Letter to U.S. Sentencing Commission Chair regarding Federal Cocaine Sentencing Policies 

June 1995 Testimony by Treasurer William Moffitt Before the House Judiciary Committee -- Written Statement Regarding Cocaine Sentencing Disparity 

April 1995 Public Comment by President Gerald Goldstein -- Written Public Comments for the Record Regarding the United States Sentencing Commission’s February 1995 Report to Congress, and Future Congressional Recommendations, on the Current 100-1 Federal Sentencing Disparity Between “Crack” and Powder Cocaine Offenses 

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's approximately 9,000 direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.

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