Federal sentencing policy for cocaine offenses has come under criticism during the past few years. Public comment received by the Sentencing Commission, statements made by public officials, by criminal justice practitioners, researchers, and interest groups, and extensive litigation challenging the constitutionality of the sentencing laws have all raised questions about whether the current approach to sentencing for cocaine offenses is fair and whether it is effective. Critics have focused especially on the differences in penalty levels between two forms of cocaine - powder and crack.
The current sentencing structure for cocaine offenses is primarily the result of the Anti-Drug Abuse Act of 1986. It established mandatory minimum penalties for persons convicted of trafficking in a variety of controlled substances. The 1986 Act pegged the mandatory minimums to specific quantities of drugs distributed. The quantities triggering the Act's mandatory minimum penalties differed for various drugs and in some cases for different forms of the same drug. Cocaine base, commonly referred to as crack cocaine, was treated differently than cocaine hydrochloride, commonly referred to as powder cocaine. The Act established what has come to be known as a 100-to-1 quantity ratio between the two forms of cocaine. It takes one hundred times as much powder cocaine to trigger the same mandatory penalties as for a given amount of crack. For example, a person convicted of selling 500 grams of powder cocaine is subject to the same five-year minimum sentence as a person selling 5 grams of crack cocaine.
In 1987, the Sentencing Commission used the same 100-to-1 quantity ratio in setting drug penalties under the sentencing guidelines. The mandatory minimum statutes list only two quantities for each form of the drug. In the case of crack, these are five and five hundred grams, which correspond to five- and ten-year mandatory minimum sentences for first offenders. The sentencing guidelines go further and set sentences for the full range of possible drug quantities using the same 100-to-1 quantity ratio.
Congress also distinguished crack cocaine from both powder cocaine and other controlled substances in the Anti-Drug Abuse Act of 1988 by creating a mandatory minimum penalty for simple possession of crack cocaine. This is the only federal mandatory minimum for a first offense of simple possession of a controlled substance. Under this law, possession of more than five grams of crack cocaine is punishable by a minimum of five years in prison. Simple possession of any quantity of any other substance - including powder cocaine - by first-time offenders is a misdemeanor offense punishable by no more than one year in prison.
The Sentencing Reform Act of 1984 created the United States Sentencing Commission as an independent agency in the judicial branch of government. The Commission's duties and authorities are set out in chapter 58 of title 28, United States Code. The Act directed the Commission to establish sentencing policies and practices for the federal criminal justice system through a detailed framework of sentencing guidelines. See generally 28 U.S.C. 994. In addition, the Act required the Commission to monitor and report periodically on the operation of the sentencing guidelines and gave the Commission ongoing sentencing and crime policy research responsibilities. See 28 U.S.C. 995(a)(8), (9), (12)(A), (13)-(16), (20), (21). The Act recognizes "the importance of sentencing and corrections research in . . . improving the ability of the Federal criminal justice system to meet the goals of sentencing." S. Rep. No. 225, 98th Cong., 1st Sess. 162 (1983).
This report is submitted pursuant to both the Commission's ongoing statutory authority and responsibility to advise Congress on sentencing policy (described in 28 U.S.C. 994-95) and a specific statutory directive contained in section 280006 of Public Law 103-322, the Violent Crime Control and Law Enforcement Act of 1994. This latter provides that "the United States Sentencing Commission shall submit a report to Congress on issues relating to sentences applicable to offenses involving the possession or distribution of all forms of cocaine. The report shall address the different penalty levels which apply to different forms of cocaine and include any recommendations the Commission may have for retention or modification of these differences in penalties."
C. THE ISSUES
In broad outline, critics of current cocaine sentencing policies argue that the 100-to-1 quantity ratio is unfair and ineffective. They claim it has led to harsher punishment of small-quantity retail crack cocaine dealers than is imposed on more sophisticated powder cocaine dealers who are higher up in the same drug distribution chain and who are involved in larger quantities of cocaine. They argue that, like other mandatory minimums, the crack penalties are unevenly applied depending on what charges are brought against defendants and whether they are prosecuted in state or federal court. This leads to disparate punishment for defendants guilty of similar conduct.
Critics contend that the lengthier sentences for crack have not been more effective than the shorter sentences for powder in deterring use or in reducing trafficking. They say that many of the harms associated with crack use - such as crime, violence, and the breakdown of innercity neighborhoods - are not products of the drug alone but result from the total social and economic environment in which the drug is typically used. Lengthy terms of imprisonment have not effectively addressed these harms, but have had a destructive effect on the lives of crack offenders. Finally, critics point to the impact of the lengthier sentences for crack on minority defendants, which has contributed to a growing gap between the average sentence imposed on Whites and on minorities in the federal courts.
Those who support a differential in crack and powder cocaine penalties argue that it is appropriate to punish crack cocaine offenders more harshly than powder cocaine offenders because crack is a more dangerous drug. They believe that the introduction of crack increased the accessibility of cocaine, increased the number of open-air drug markets in many cities, and increased the violence associated with the drug trade. Crack cocaine, they contend, is more addictive and produces more health and social problems than powder cocaine.
Tough punishment, supporters of a penalty differential claim, is needed to send a clear signal that trafficking in crack will not be tolerated. They argue that the threat of punishment discourages use and distribution, and that lengthy terms of imprisonment improve public safety by keeping known offenders off the streets. In addition, law enforcement officials say that the current penalties assist them in infiltrating larger drug organizations by inducing defendants facing stiff sentences to cooperate following arrest.
Supporters of the current penalties point out that crack has been particularly destructive of minority communities and they believe that strict law enforcement stands to benefit these communities. The penalties themselves are racially neutral and unbiased, they argue, and the fact that a higher proportion of minority defendants are convicted of crack than of powder cocaine offenses simply reflects that a higher proportion of minorities commit crack offenses.
To weigh these competing arguments and evaluate the current cocaine penalty structure, the Commission identified the concerns of Congress with cocaine use and its goals for cocaine sentencing policy. We reviewed the legislative history of the relevant penalty provisions and the purposes that Congress has established for sentencing. We then turned to the findings, from the research literature and from the Commission's own empirical study and its hearings on cocaine sentencing, to learn what is known about the two forms of the drug and the effects of the current sentencing policy.
Chapters 2 through 7 report the findings of this examination and lay the groundwork for the report's conclusions. Chapter 2 examines the forms and methods of cocaine use, and the effect of cocaine on the body and mind when used in its various forms. Chapter 3 looks at the trends in cocaine use, the prevalence of crack cocaine and powder cocaine use today, how these forms of the drug affect individual lifestyles and the community-at-large, and the available treatment strategies for cocaine users.
Chapter 4 examines the business side of cocaine, focusing on trafficking and distribution patterns, marketing techniques, and profitability, as well as how the markets for powder and crack cocaine differ from one another. Chapter 5 reviews the research literature on the relationship between cocaine and crime. Chapter 6 explores the national law enforcement response to cocaine, including the history of enforcement efforts, the current federal enforcement policies, current state sentencing laws for cocaine offenses, and questions related to race and cocaine sentencing policy. The Commission presents its own empirical research in Chapter 7, namely a comprehensive statistical analysis of drug cases and defendants sentenced in the federal courts.
In Chapter 8, the Commission synthesizes and analyzes the issues raised in the earlier chapters and presents its recommendations. We begin by asking, "Is crack more harmful than powder cocaine?" We focus particularly on what we know today about those harms that were of most concern to Congress when it enacted the differential penalty structure. Comparing the harmfulness of the two forms of the drug proved complicated because many of the problems associated with crack are not clearly caused by the drug alone, but appear to result from a combination of the drug with other factors in the social and economic context in which it is typically used.
Measuring the seriousness of a crime and assigning just punishment is especially difficult for drug crimes. The harmfulness of a drug and the amount involved are two considerations. In addition, many other factors - including a defendant's culpability for the harm caused by drug use, his or her role in the crime, whether violence was used, and other aggravating and mitigating circumstances surrounding the offense - should be considered. We found that the sentencing guidelines take many of these factors into account, and could be amended to reflect better the greater seriousness of certain cocaine offenses. The current mandatory minimum penalty statutes do not take account of many of these factors.
In summary conclusion, the Commission found that the current differences in penalty levels for crack and powder cocaine should be reexamined. We believe that the sentencing guidelines, freed from the constraints of the current mandatory minimums, would be better able to address the increased harm of crack cocaine and avoid the unfairness of the current statutory system. Our recommendations for what changes are needed are found in Chapter 8.
The report contains three appendices. Appendix A summarizes the Commission's November 9, 1993, public hearing on crack cocaine. Appendix B summarizes comment received by the Commission on the differing penalty schemes for crack and powder cocaine as a result of both the Commission's requests for comment published in the Federal Register in December 1992 and December 1993, and directed requests made by the Commission to various organizations. Appendix C outlines the unsuccessful constitutional and other legal challenges to the statutory and sentencing guideline distinctions made between powder cocaine and crack cocaine, including a list of cases in which these issues were raised.
E. A NOTE ON TERMINOLOGY AND DRAWING CONCLUSIONS
The following definitions explain selected terms commonly referred to in this report.
Powder cocaine refers to cocaine hydrochloride.
Cocaine base refers to cocaine in a base form. Cocaine base includes coca paste, other intermediate forms of cocaine, freebase cocaine, and crack cocaine.
Crack cocaine refers to a specific smokable base form of cocaine derived from powder cocaine through a process that chemically separates hydrochloric acid from the cocaine alkaloid.
100-to-1 quantity ratio refers to the comparative amounts of powder cocaine and crack cocaine needed to trigger the five- and ten-year mandatory minimum penalties mandated by 21 U.S.C. 841(b)(1).
Finally, when undertaking this study, the Commission was frustrated by limitations in the current research. We wish we knew more than we do before setting policy in this area. Throughout the report, limitations in the available data are noted and we call for additional research where it is especially needed. The conclusions drawn are made cautiously with these qualifications in mind.
At the same time, we recognize that there are also limitations in drawing conclusions based only on isolated instances, anecdotes, news media reports, or even based on "common sense," which can be distorted by stereotypes or by the conventional wisdom of the day. We believe that the research presented here provides new information and a more sound basis for setting policy than was available to Congress when it acted and to the Commission when it promulgated the original guidelines. Accordingly, it is fitting to reexamine this important area in light of a fuller understanding of the problem of cocaine in America.
United States Sentencing Commission