Disapproval Of Sentencing Guideline Amendments Re: Crack Cocaine
Including Dissenting View
Excerpts From House Of Representatives Report 104-272 Sept. 29, 1995.
BACKGROUND AND NEED FOR THE LEGISLATION
On May 1, 1995, pursuant to the Sentencing Reform Act of 1984, the U.S.
Sentencing Commission submitted to Congress proposed amendments to the
sentencing guidelines. The 27 proposed amendments include reduced penalties
for crack cocaine and money laundering, clarification of guideline
enhancements for sex offenses and non-narcotic drug trafficking, and
adjustments to the guidelines in conformity with mandatory minimum penalties
enacted in the 1994 Crime Act. Under the Sentencing Reform Act of 1984, the
Commission's amendments to the sentencing guidelines are to take effect
November 1, 1995, unless Congress intervenes.
On June 29, 1995, the Judiciary Committee's Crime Subcommittee held a
hearing to examine the Sentencing Commission's recommended changes to the
sentencing guidelines that would equalize penalties for similar quantities
of crack and powder cocaine.
Many of the hearing witnesses, including members of the Sentencing
Commission, acknowledged important differences between crack and powder
cocaine: crack is more addictive than powder cocaine; it accounts for more
emergency room visits; it is most popular among juveniles; it has a greater
likelihood of being associated with violence; and crack dealers have more
extensive criminal records than other drug dealers and tend to use young
people to distribute the drug at a greater rate. In short, the evidence
overwhelmingly demonstrates significant distinctions between crack and
Importantly, with regard to the question of racial disparity, the Sentencing
Commission's own report states, "Clearly, the penalties apply equally to
similar defendants, regardless of race. * * * [T]here is no evidence that
Congress or the Sentencing Commission acted with any discriminatory intent
in setting different statutory guideline penalties for different forms of
cocaine." The Administration expressed its opposition to the Commission's
proposal to reduce the penalties for crack cocaine trafficking offenses.
On June 22, 1995, the Judiciary Committee's Crime Subcommittee heard
compelling testimony from law enforcement leaders of the District of
Columbia, including the police chief, the U.S. Attorney, and the chief judge
about the effects of crack cocaine on the nation's capital. They warned
Congress, in unmistakable terms, not to lower crack penalties to those of
powder cocaine offenses, because of the more destructive nature of the crack
While the evidence clearly indicates that there are significant distinctions
between crack and powder cocaine that warrant maintaining longer sentences
for crack-related offenses, it should be noted that the current 100-to-1
quantity ratio may not be the appropriate ratio. The goal must ultimately be
to ensure that the uniquely harmful nature of crack is reflected in
sentencing policy and, at the same time, uphold basic principles of equity
in the U.S. Code.
It is important to note that if the Commission's guideline amendments went
into effect without Congress lowering the current statutory mandatory
minimum penalties, it would create gross sentencing disparities. Sentences
just below the statutory minimum would be drastically reduced, but mandatory
minimums would remain much higher. For example, an offender convicted of
distributing 5 grams of crack would, under the statutory mandatory minimum
penalty, face a mandatory prison term of 5 years; however, an offender
convicted of distributing 4.9 grams of crack could, under the Commission's
amendment to the guidelines, receive a sentence within a range of 0-6 months
of imprisonment. The Commission's crack-related guideline amendments would
establish penalties for crimes that stand in sharp contrast with statutory
mandatory minimum penalties.
On May 1, 1995, the United States Sentencing Commission submitted to
Congress amendments to the sentencing guidelines, policy statements, and
official commentary in a number of areas. Such amendments will take effect
November 1, 1995, unless an Act of Congress provides otherwise. The bill
would overturn amendments relating to two of the areas--(1) equalization of
cocaine base and cocaine powder quantities for drug trafficking penalties,
and (2) revision of the guidelines applicable to money laundering and
transactions in property derived from unlawful activity.
By way of background, the United States Sentencing Commission has the power
to promulgate amendments to the sentencing guidelines. However, the
Commission must submit such amendments to Congress for at least a 180-day
review period. Sentencing Guideline amendments take effect no later than
November 1 of the calendar year in which submitted, "except to the extent
that . . . the amendment is otherwise modified or disapproved by Act of
Congress." 28 U.S.C. Sec. 994(p). The bill would implement this provision by
disapproving the Sentencing Commission's amendments with respect to cocaine
base and money laundering.
The sentencing guideline amendments relating to cocaine base (usually known
as "crack"), which were adopted by a 4-3 vote of the Commission, would
drastically reduce crack penalties without recognizing the significant
differences between crack and cocaine hydrochloride (cocaine powder). Crack
is a more dangerous and harmful substance than cocaine powder for a number
The most common routes of administration of the two drugs cause crack to be
the more psychologically addictive of the substances, particularly because
smoking crack produces quicker, more intense, and shorter-lasting effects
than snorting cocaine powder. Identifiable social and behavioral changes
occur much more quickly with the use of crack than with the use of cocaine
Crack can also be broken down and packaged into very small and inexpensive
quantities for distribution and is thereby marketed to the most vulnerable
members of society, including those of lower socioeconomic status and youth.
Additionally, the open-air street markets and crack houses used for the
distribution of crack contribute heavily to the deterioration of
neighborhoods and communities. Finally, the present crack market is
associated with violent crime to a greater extent than that of cocaine
Despite these realities, the Sentencing Commission has taken two steps to
lower crack penalties to precariously low levels. First, the Commission has
recommended that Congress eliminate the differential treatment of crack and
cocaine powder in the mandatory minimum penalties currently provided by
statute. In addition, the Commission has submitted an amendment of the
sentencing guidelines to treat crack and cocaine powder alike under the
guidelines, regardless of whether Congress first revises the statutory
As a result, an offender convicted of distributing 50 grams of crack (about
500 doses), for whom the relevant statute imposes a mandatory minimum 10-
year term of imprisonment, would face a guideline sentence of just 21-27
months of imprisonment. If such an offender accepted responsibility for his
or her offense, the sentencing guideline range would be 12-18 months of
imprisonment. If the court found that such an offender had also played a
minimal role in the offense, the sentencing guideline range would be just 4-
10 months of imprisonment, which could be satisfied by probation with
conditions of confinement, such as home detention. Offenses now subject to a
5-year mandatory minimum prison term (involving at least 5 grams of crack)
would potentially be subject to a sentencing guideline range of just 0-6
months of imprisonment if the defendant accepted responsibility for the
offense and were a minor player.
From the above it can be seen that if Congress adopts the Commission's
recommendation to treat crack and cocaine powder alike for purposes of the
mandatory minimum penalties, some offenses now subject to a 5- or 10-year
mandatory minimum prison term will potentially result in a sentence
involving no required prison term at all.
Even if Congress does not adopt the Commission's recommendation as to
mandatory minimum penalties for crack, the sentencing guideline amendments
the Commission has submitted create serious problems. The low guideline
sentences bring about inconsistency between the guidelines and the current
statutory scheme, with the result that mandatory minimum sentences will
override many guideline sentences and produce sharp cliffs in sentencing, as
well as resentment among those subject to the statutory penalties. The
sentencing guidelines should work in concert with, rather than in opposition
to, mandatory minimum sentences.
Moreover, the low guideline sentences will prevail in the case of crack
offenders subject to the "safety-valve" exemption from mandatory minimum
sentences, 18 U.S.C. Sec. 3553(f). The implementation of these low sentences
for "safety-valve" defendants may also violate the statutory requirement
that guidelines implementing the "safety-valve" must provide a guideline
range in which the lowest term of imprisonment is at least 24 months for
defendants who would have been subject to a mandatory minimum 5-year
sentence. Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No.
103-322, Sec. 80001(b)(1)(B). The drastic reduction in guideline sentences
for crack will result in safety-valve sentences under Sec. 5C1.2 of the
sentencing guidelines lower than 24 months in certain cases, as described
For the reasons set forth, Congress should disapprove the equalization of
crack and cocaine powder sentences in the sentencing guidelines, as provided
in section 1 of the proposed legislation. While Section 1 would result in
the disapproval of those portions of sentencing guideline amendment number 5
that would equalize crack and cocaine powder trafficking penalties, it would
not affect other portions of the amendment.
For example, the legislative proposal would not affect the portions of the
amendment that provide enhanced sentences for the use or possession of a
weapon in the case of any drug trafficking offense or that delete the
definition of "cocaine base." Nor would the legislative proposal affect the
amended guidelines' treatment of simple possession of crack in the same
manner as simple possession of cocaine powder. (Of course, current mandatory
minimum penalties pertaining to the simple possession of certain quantities
of crack would continue to apply unless repealed by Congress.)
Without Congressional action disapproving the guidelines, the amendments
will go into effect November 1, 1995. While the Department of Justice
recognizes that some adjustment of the current penalty structure may be
appropriate, any such adjustment must reflect the greater dangers associated
with crack than cocaine powder.
On September 12, 1995, the Republican majority on the House Judiciary
Committee had the opportunity to eliminate the disparity in sentences
between crack cocaine and powder cocaine offenses. The Committee could have
eliminated blatantly discriminatory federal laws. Regrettably, the majority
opted instead to perpetuate these discriminatory laws by passing and
reporting out H.R. 2259, which disapproves the recommendations of the U.S.
Sentencing Commission to eliminate the disparities in federal sentencing for
crack cocaine and powder cocaine offenses.
In response to complaints from the federal bench, the criminal defense bar,
family members of convicted crack defendants and civil rights groups,
Congress directed the Sentencing Commission in the 1994 Crime Bill to
examine the obvious disparity in sentences for crack and powder offenses.
Overwhelming evidence was presented to support the unanimous conclusion of
the Commission members that the current 100-to-1 disparity for crack
trafficking versus powder trafficking offenses cannot be justified \1\ and
mandatory minimum sentences for simple possession of crack must be
eliminated. By rejecting the recommendation of the Sentencing Commission,
the Committee majority rejected documented and analytically sound analysis
in favor of an insulting paternalistic approach based on unsupported
Just as beer and wine are two forms of the same drug (alcohol), crack
cocaine and powder cocaine are two forms of the same drug. Despite this,
there is a vast disparity in the federal sentences for crack cocaine and
powder cocaine offenses. Based largely on media perceptions (and
misperceptions) surrounding the death of University of Maryland basketball
star Len Bias, as well as other unsupported anecdotal evidence, Congress
singled out crack cocaine for much harsher penalties than powder cocaine in
1986 when it enacted the first set of federal laws for cocaine offenses.
Because of its relative low cost, crack cocaine is the drug of choice for
poor Americans, many of whom are African Americans living in our inner
cities. Conversely, powder cocaine is much more expensive and tends to be
used by more affluent white Americans. Thus, punishing crack cocaine
offenses more harshly than powder cocaine offenses unjustly and
disproportionately penalizes African Americans.
Under current law, defendants convicted of trafficking 50 grams of crack
cocaine receives the same ten-year mandatory minimum penalty as defendants
convicted of trafficking 5,000 grams of powder cocaine. See 21 U.S.C.A. Sec.
841, 960. Conviction for trafficking a mere 5 grams of crack cocaine
carries the same five-year mandatory minimum sentence as a conviction for
trafficking 500 grams of powder cocaine. Id. For simple possession of more
than 5 grams of crack cocaine, a defendant must be sentenced to a minimum of
five years in federal prison while simple possession of any quantity of any
other substance--including powder cocaine--is a misdemeanor offense,
punishable by a maximum of one year in prison See 21 U.S.C.A. Sec. 844.
A cost per does comparison puts this disparity in perspective. 500 grams of
powder cocaine produces 2,500 to 5,000 doses with a street value of between
$32,500 and $50,000. In contrast, 5 grams of cocaine produces 10 to 50
doses and has a street value of between $225 and $750. Thus, at the high end
of the scale, a defendant convicted of trafficking $750 worth of crack
cocaine would receive the same mandatory minimum five-year sentence as a
defendant who trafficked $50,000 worth of powder cocaine.\2\
Prisons are literally filled with young African-American men and women
serving mandatory minimums for crack cocaine trafficking and possession
offenses. Currently, 61% of federal inmates are serving sentences for drug
offenses. That figure is expected to reach 70% by the year 2,000.\3\ The
average prison stay for drug offenders has increased from 23.1 months in
1985 to 68.7 months in 1993.\4\ Twenty-one per cent of the drug law
violators are classified as "low level" security risks (e.g. no record of
current or prior violence, no involvement in sophisticated criminal activity
and no prior commitment).\5\ Elimination of these types of offenders alone
could dramatically reduce federal prison population. Similarly, studies have
shown that $3.5 billion could be saved if the terms of already sentenced
inmates were reduced to those that would have applied for powder offenses.
Dr. Arthur Curry testified before the Crime Subcommittee on June 29, 1995,
about his 19 year old son Derrick, who had never been in trouble with the
law before but is now serving a twenty year sentence for a non-violent first
offense involving crack cocaine.
Judge Lyle Strom, the Reagan appointed Chief Judge of the U.S. District
Court in Nebraska, similarly testified at the hearing about the unjust and
discriminatory sentences he is forced to mete out against young African
Americans convicted of relatively minor crack offenses. Last year, Chief
Judge Strom became the first federal judge to refuse to impose a mandatory
minimum sentence in a crack case. In supporting this decision, he asserted
that since crack cocaine "is only minutes away from" powder cocaine, the
disparity in sentences for the two forms of the same drug cannot be
justified, particularly when the disparity has such an obvious
disproportionate impact upon African Americans.
In all, ten witnesses testified on June 29. When polled by Chairman
McCollum, eight of the ten--including Assistant Attorney General Jo-Ann
Harris--agreed that the current 100-to-1 disparity in sentences for
trafficking offenses could not be justified and that mandatory sentences for
simple possession offenses should be eliminated.
One of the most prominent concerns expressed about crack cocaine focuses on
the violence associated with its emergence. However, violence is by no
means uniquely associated with crack cocaine.
The image of the crack-crazed addict wildly and randomly shooting whoever
crosses his or her path is often presented to justify heightened penalties
for crack offenses. However, this type of drug-induced violence rarely
occurs. Indeed, the drug which fits this image most appropriately is
alcohol. Alcohol has been associated with more violent behavior than any
other drug.\6\ The image of the desperate crack cocaine addict committing
series of violent crimes to support his or her drug habit is similarly
Most of the habit supporting crime associated with crack is petty property
theft, prostitution and crack cocaine dealing itself. Market place violence
accounts for the majority of crime associated with crack cocaine. Crack
cocaine has created an underground economy in the inner city and in these
economies, violence is used to achieve economic regulation and control.
Such systemic, market place violence is present in the market place for all
The gangland murders of the 20's and 30's were directly related to alcohol's
underground economy. In the late 70's and early 80's, turf wars between
Colombian and Cuban drug kingpins over powder cocaine made Miami the murder
capital of the world. In fact, the national homicide rates during the
earlier powder cocaine war exceeded current national homicide rates
associated with crack cocaine. In 1980, the national homicide rate was 10.2
The highest homicide rate since crack's introduction was 9.8 per 100,000,
which occurred in 1991.\9\ The enormous amount of violence associated with
the powder cocaine market even invaded popular culture through hit
television series like "Miami Vice" and movies like "Scarface." In light of
these historical facts, punishing crack cocaine more harshly powder cocaine
is even more indefensible.
Although it is true that nothing in the truncated legislative history of the
federal cocaine laws suggests the existence of a racially discriminatory
intent in differentiating between sentences for crack and powder cocaine,
the discriminatory impact of these laws cannot be ignored. African
Americans accounted for 88.3% of federal crack cocaine trafficking
convictions in 1993, Hispanics 7.1%, Whites 4.1% and others 0.5%.\10\
Congressman Schiff suggested that the basis for this discriminatory impact
has little to do with the law as written but instead reflects targeted
enforcement of the law in African American communities. While such an
analysis has some merit, it cannot overcome the fact that treating the form
of cocaine used more commonly by poor, African Americans differently from
the form of cocaine used more commonly by affluent, white Americans makes
the current federal sentencing scheme discriminatory on its face.
According to the Sentencing Commission:
"Federal sentencing data leads us to the inescapable conclusion that Blacks
comprise the largest percentage of those affected by the penalties
associated with crack cocaine. This does not mean, however, that the
penalties are racially motivated * * *. Nevertheless, the high percentage of
Blacks convicted of crack cocaine offenses is a matter of great concern to
the Sentencing Commission." \11\
The Commission went on to state:
"When one form of drug can be rather easily converted to another form of the
same drug and when that second form is punished at a quantity ratio 100
times greater than the original form, it would appeal reasonable to require
the existence of sufficient policy bases to support such a sentencing
scheme. * * * [especially] when such an enhanced ratio for a particular
form of a drug has a disproportionate effect on one segment of the
population * * *." \12\
No analysis is the racially discriminatory impact of the current federal
sentencing scheme is complete without discussion of the laws' targeted
enforcement by federal law enforcement. According to a recent Los Angeles
Times article, the U.S. Attorney's office in Los Angeles openly admits to
targeting it resources towards minority communities.
In an interview, Los Angeles U.S. Attorney Nora Manella acknowledged that
federal agents have focused their resources in minority communities, where
he crack trade is believed to be the most prevalent and violent.\13\ As a
result of this acknowledged targeting of minority communities in the Los
Angeles area, not a single white has been convicted of a crack cocaine
offense in federal courts serving Los Angeles and its six surrounding
counties since Congress enacted its mandatory sentences for crack dealers in
1986.\14\ Instead, virtually all white offenders are prosecuted in state
court, where sentences are far less, with differences of up to eight years
for the same offense.
Comparison of the following two cases offers a striking example of this
disparity. Stephen Green, a 20 year old, African American, first-offender,
was arrested with 70 grams of crack by a federal undercover agent. He was
sentenced in federal court to a 10 year prison term. Daniel Siemianowski, a
37 year old, white first offender, was arrested with 67 grams of crack by a
county sheriff. He was sentenced in state court to less than a year in jail
Similar discriminatory patterns exist outside of Los Angeles, A 1992
Commission survey shows that only minorities were prosecuted for crack
offenses in more than half the federal court districts handling crack cases.
No white were federally prosecuted in 17 states and many cities, including
Boston, Denver, Chicago, Miami, Dallas and Los Angeles. Our of hundreds of
cases, only one white was convicted in California, two in Texas, three in
New York and two in Pennsylvania.
The significance of this targeted enforcement strategy is not that it
explains he disparate impact current law has on the African American
community, but that the existence of such a facially flawed sentencing
scheme undermines the credibility of our entire system of federal laws and
might invite discriminatory behavior by federal law enforcement personnel.
In an era when blatant bias against African Americans within law enforcement
agencies is coming increasingly into the open-- from the despicable
statements of former Los Angeles police detective Mark Fuhrman, through the
disgusting behavior of Philadelphia police officers who admit to framing
African American suspects--it is incumbent upon each of us, as he drafters
of the laws for this great nation, to insure that no law remains on the
books that calls into question the integrity of our system of justice. For
this reason, we must dissent from the views of the majority on H.R. 2259 as
it relates to sentences for crack cocaine offenses.
\1\ United States Sentencing Commission, "Cocaine and Federal Sentencing
Policy" (1995). Three members of the Commission dissented from the majority
recommendation that base penalties for crack and powder cocaine trafficking
offenses be equalized with sentencing enhancements added to address
aggravating factors often associated with crack trafficking. However, even
these three dissenting voices agreed that the current 100-to-1 disparity was
unjust and should be reduced.
\2\ United States Sentencing Commission. "Cocaine and Federal Sentencing
Policy" 173 (table 19) (citing United States Drug Enforcement
Administration, "Illegal Price and Purity Report, United States: January
1990-December 1993" (1994); United States Drug Enforcement Administration,
U.S. Drug Threat Assessment: 1993 (1993).
\3\ Statement of Kathleen M. Hawk, Director of Bureau of Prisons,
Oversight Hearing on Matters Relating to Federal Prisons (June 8, 1995).
\6\ United States Sentencing Commission, "Cocaine and Federal
Sentencing Policy" 56, n. 105 (citing M. de la Rosa, "Introduction:
Exploring the Substance Abuse-Violence Connection," in M. de la Rosa, B.
Gropper, and E. Lambert (eds.), "Drugs and Violence: Causes, Correlates and
Consequences" 5 (1990); n. 109 (citing A. Roberts, "Psychosocial
Characteristics of Batterers: A Study of 234 Men Charged with Domestic
Violence Offenses," 2 Journal of Family Violence 81, 82 (1987); n. 110; 99
m. 36 (citing P. Goldstein, "Drugs and Violence Crime," in "Pathways to
Criminal Violence" 16, 24 (Neil A. Weiner et al., eds. 1989)).
\7\ United States Sentencing Commission, "Cocaine and Federal Sentencing
Policy," 64 n. 3 (citing Bruce D. Johnson & Ali Manwar, "Towards a Paradigm
of Drug Eras" 7-8 (paper presented at American Society of Criminology, San
Francisco, California) (Nov. 21, 1991); 97 n. 28 (citing J. Inciardi, "The
Crack-Violence Connection Within a Population of Hardcore Adolescent
Offenders," in M. de la Rosa, B. Gropper, and E. Lambert (eds.), "Drugs and
Violence: Causes, Correlates and Consequences" 92 (1990); 108 nn. 90-91
(citing J. Inciardi and A. Pottieger, "Crack-Cocaine Use and Street Crime,"
Journal of Drug Issues (forthcoming 1994) (on file with University of
Delaware Center of Drug and Alcohol Studies)).
\8\ "Crime in the U.S.," Federal Bureau of Investigation, 1965-93.
\10\ United States Sentencing Commission, "Cocaine and Federal
Sentencing" Policy (1995).
\13\ Dan Weikel, "War on Crack Targets Minorities Over Whites," Los
Angeles Times, part A, p. 1. (May 21, 1995).
\14\ Richard Berk, 'Preliminary Data on Race and Crack Charging
Practices in Los Angeles", 6 Federal Sentencing Reporter 36-37 (1993) (memo
written by Richard Berk and Alec Campbell re: United States v. Jenkins, No.
91-632-TJH in the Central District of California suggesting that federal
crack prosecutions in Los Angeles have a racial distribution different from
the racial distribution for arrest).
\15\ Dan Weikel, "War on Crack Targets Minorities Over Whites," Los
Angeles Times, part A, p.1. (May 21, 1995).
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