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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 powder cocaine.
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 market.
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 of reasons.
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 powder.
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 powder.
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 minimum penalties.
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 above.
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 anecdotal evidence.
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 misplaced.
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 illicit drugs.\7\
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 per 100,000.\8\
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 and probation.\15\
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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