Since 1986, Congress has mandated that the federal courts impose significantly longer sentences when defendants are convicted of trafficking in crack cocaine as compared to powder cocaine. If a defendant is convicted of distributing 50 grams of crack cocaine, he or she will automatically be sentenced to 10 years in federal prison. In contrast, if a defendant is convicted of distributing the same amount of powder cocaine, he or she will only be sentenced to between one and two years. It takes 5,000 grams of powder cocaine before a defendant faces an automatic 10-year sentence. In other words, it requires possession of 100 times more powder cocaine to receive the same sentence for the same crime committed with crack cocaine.

These sentencing laws have been under enormous criticism over the last 20 years because they have resulted in undeniable racial discrimination. According to the American Bar Association (“ABA”), 82 percent of those sentenced under federal crack cocaine laws have been African-American despite the fact that 66percent of those who use crack cocaine are Caucasian or Hispanic. Consequently, African-Americans have spent substantially more time in federal prison for drug offenses than their Caucasian counterparts. In addition, since crack cocaine is made from powder cocaine, the crack/powder disparity ends up penalizing low-level crack dealers with greater severity than big time powder suppliers.

In an attempt to address this long-standing inequity, Congress directed the Sentencing Commission to conduct scientific studies on the overall impact of the crack/powder cocaine disparity. Since 1995, the Sentencing Commission has submitted four reports to Congress all of which acknowledge that the 100:1 crack/powder cocaine disparity, resulting in highly disproportionate sentences, is unwarranted. The first report, authored by the Commission in May of 1995, recommended that Congress give equal treatment to crack and powder cocaine. However, Congress rejected this recommendation.

The United States Supreme Court has recently chastised Congress for creating this distinction between crack and powder cocaine, exposing the fact that Congress based its two-tiered system on assumptions rather than quantitative science. In Kimbrough v. United States,128 S. Ct. 558, 568-69 (2007), the High Court acknowledged that empirical data indicates that crack and powder cocaine are two forms of the same drug; that the active ingredient in powder and crack cocaine is the same; and that the two forms of the drug also have the same physiological and psychotropic effects. Consequently, the Court in Kimbrough concluded that federal district courts could ignore guideline ranges which fix crack cocaine sentences significantly higher than powder cocaine sentences.

On November 1, 2007, the Sentencing Commission amended the guidelines by providing a two-level reduction in most crack cocaine cases. By making this amendment retroactive, the Sentencing Commission invited federal inmates convicted of trafficking crack cocaine to re-open their sentences for purposes of modification and reduction. While the guidelines limit the reduction to two-levels, Supreme Court precedent suggests that, once the sentence is re-opened, federal court judges retain full discretion to sentence anywhere within the statutory range set by Congress. In some circumstances, this can give federal inmates an opportunity for immediate release.

These recent changes in the law have started to rectify the inequities caused by Congressional policy set in the mid 1980s. However, even the Sentencing Commission has recognized that these recent legal changes inadequately address the problem. In its 2007 report to Congress, the Commission emphasized, “the amendment is only a partial remedy to some of the problems associated with the 100:1 drug quantity ratio. It is neither a permanent nor a complete solution to these problems.” Therefore, this battle is far from over.

Currently, both the Senate and the House have introduced bills to resolve this continuing inequity. Of these bills, the ABA has endorsed Senator Joseph Biden’s bill, S. 1711, which raises the triggering amount of crack cocaine to that required in powder cocaine cases for all mandatory minimum sentences. If and when Congress eliminates this distinction between crack and powder cocaine, it will symbolize a greater commitment to racial equality in the criminal justice system. A commitment that is long overdue.

In the meantime, defendants who have been convicted of crack related crimes and their families should take advantage of the recent federal court rulings to explore whether they qualify for an early or immediate release. For further information and/ or consultation call Lauren Eskenazi/ Attorney at Law @ (877)412-7732.

Published in : News, National