News Release

Congress Violated the Equal Protection Clause and Exacerbated Racial Disparity When it Reaffirmed the Federal Sentencing Disparity for Powder to Crack Cocaine, Nation's Criminal Defense Bar Tells Federal Appeals Court

Washington, D.C. (December 22, 2014) – In an amicus curiae brief filed on December 18, 2014 in Davis v. United States Sentencing Commission, an appeal of a dismissal of a petition for writ of mandamus now pending in the U.S. Court of Appeals for the D.C. Circuit, the National Association of Criminal Defense Lawyers (NACDL) forcefully and methodically demonstrates that Congress’s 1995 reaffirmation of the 100:1 federal sentencing ratio for powder to crack cocaine violated the Equal Protection Clause of the U.S. Constitution.

As meticulously recited in the brief, in the years following the enactment of the 100:1 ratio in the Anti-Drug Abuse Act of 1986, “research consistently showed that the 100:1 ratio had a disproportionate impact on African Americans[.]” In 1994, Congress directed the Sentencing Commission to research the ratio’s impact and to make recommendations regarding the ratio. As set forth in NACDL’s brief (at 6):

In a February 1995 report, the Sentencing Commission “firmly conclude[d] that it cannot recommend a ratio differential as great as the current 100-to-1 quantity ratio,” and in fact “strongly recommend[ed] against a 100-to-1 quantity ratio.” United States Sent’g Comm’n, Special Report to the Congress: Cocaine and Federal Sentencing Policy, 196-98 (Feb. 1995) (hereinafter “Cocaine and Federal Sentencing Policy”). In particular, the Sentencing Commission noted that federal sentencing data led to the “inescapable conclusion” that African Americans were disproportionately affected by the 100:1 ratio, and expressed “great concern” over the disparity. Id. at xii….Consistent with its report, on May 1, 1995, the Sentencing Commission submitted proposed amendments to the Sentencing Guidelines that would replace the 100:1 ratio with a 1:1 ratio.

Congress also held several hearings after the submission of the Sentencing Commission’s report, and of 16 witness, all but one urged Congress to eliminate the 100:1 ratio. Nevertheless, Congress reaffirmed the 100:1 ratio. And Mr. Davis languishes in prison to this day, serving a 360-month sentence that would be dramatically shorter if the form of the substance for which he was convicted – cocaine -- had been powder and not crack.

Miller & Chevalier Member Timothy P. O’Toole authored NACDL’s amicus curiae brief in Davis. Mr. O’Toole serves as Vice Chair of NACDL’s White Collar Committee and formerly served on the Association’s Board of Directors. “When Congress acted to save the 100:1 ratio in 1995, it had before it overwhelming evidence that this ratio discriminated against African Americans and that there existed no rational justification for preserving it. It is hard to imagine a more textbook Equal Protection violation,” O’Toole said.

NACDL President Theodore Simon said: “If we really want to deal with racial disparity in America’s criminal justice system, then we must address sentencing laws that significantly contribute to it. And while the Fair Sentencing Act of 2010 reduced the discriminatory 100:1 ratio to a discriminatory 18:1 ratio, the arguments set forth in our brief seek to judicially correct a fundamentally unfair, discriminatory and unjust disparity that dramatically and unnecessarily increases the punishment imposed upon African Americans.”  

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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 many thousands of 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.