In 1986, prior to implementation of the federal sentencing guidelines, Congress enacted the Anti-Drug Abuse Act, establishing a 100-to-1 quantity ratio between powder cocaine and crack cocaine that lies at the heart of the debate surrounding cocaine and federal sentencing policy. In addition, Congress set forth in the Anti-Drug Abuse Act of 1988 a mandatory minimum penalty for simple possession of crack cocaine that distinguished it from simple possession of all other controlled substances. In light of research and information drawn from preceding chapters, this chapter discusses the factors that led Congress to distinguish between powder cocaine and crack cocaine. Further, this chapter discusses the part federal sentencing guidelines play in setting cocaine sentencing policy. Finally, the chapter concludes with recommendations to the Congress concerning possible changes to current cocaine sentencing policy.
In summarizing the perceived distinctions between powder cocaine and crack cocaine, certain caveats are important. Specifically, the Commission acknowledges the limited research concerning those factors most frequently cited as distinguishing powder cocaine from crack cocaine. For example, it generally is believed that smoking crack cocaine tends to create more dependency on the drug that is, is more psychologically "addicting" than snorting powder cocaine, but the research does not quantify how much more "addictive" smoking crack is than snorting powder. Obviously, such a figure could assist the informed determination of an appropriate ratio. Similarly, while there is some research confirming in part and rebutting in part the perception that distribution and use of crack cocaine has resulted in increased criminal activity, the data are not definitive concerning the impact of crack cocaine use and sales on crime. The empirical evidence also is inadequate to permit firm conclusions about whether crack has resulted in the birth of more babies exposed to drugs or in greater neglect of children by mothers addicted to the drug.
The absence of firm answers does not mean that the perceptions are necessarily wrong. However, gaps in the data make it difficult to draw precise conclusions about the merits of existing congressional distinctions in cocaine sentencing policy. Further, to the extent that Congress has created a sentencing system that so disparately and substantially punishes crack cocaine over other forms of the same drug, the absence of comprehensive data substantiating this legislative policy is troublesome.
In the early to mid-1980s, a national sense of urgency surrounded the drug problem generally, and crack cocaine specifically (see Chapter 6). Whether the media simply reported an urgent situation or helped create a sense of emergency has been and will continue to be debated. What is clear, however, is that the crack cocaine problem in the United States received unprecedented coverage in newspapers, news magazines, and on network television during this period.
Evoking the then-recent drug-related deaths of two nationally known sports figures, Len Bias and Don Rogers, members of Congress repeatedly described the dimensions of the crack problem in such dramatic terms as "epidemic." Because of this heightened public concern and media emphasis, Congress acted quickly to pass the Anti-Drug Abuse Act of 1986, which established mandatory minimum penalties for drug trafficking offenses in general and the powder cocaine and crack cocaine quantity differential in particular.
1. Congressional Concerns Leading to the Powder Cocaine/Crack Cocaine Differential
The Commission's review of the legislative history suggests the following with regard to Congress's action on the 1986 Act: 1) Congress determined that substantial involvement in drug trafficking, measured in terms of specified threshold quantities of each of the more common street drugs, warranted a mandatory minimum sentence (ten years for major traffickers involved with larger quantities, five years for serious traffickers involved with somewhat lesser quantities); 2) to the extent Congress saw the drug problem as a national epidemic, it viewed crack cocaine to be at the forefront of that epidemic; 3) the decision by Congress to differentiate between powder and crack cocaine in the penalty structure was deliberate, not inadvertent; and 4) the congressional decision to treat powder and crack cocaine differently arose primarily from members' beliefs that crack cocaine was significantly more dangerous than powder cocaine (see Chapter 6).
As noted in Chapter 6, Congress considered crack more dangerous than powder for several reasons. First, members viewed crack cocaine as extraordinarily addictive, characterizing it in such terms as "intensely addictive" and "quite possibly the most addictive drug on Earth." Second, members perceived crack cocaine to be "caus[ing] crime to go up at a tremendously increased rate," emphasizing what they believed was a higher correlation between crack cocaine use and the commission of other serious crime. Members believed that crack users stole money to support their habits, that crack addicts committed especially brutal acts due to the drug's influence, and that sellers traded drugs for stolen property thereby encouraging a market in stolen goods. Third, Congress considered the physiological effects of crack cocaine to be especially perilous, leading to higher rates of psychosis and death. Fourth, and of particular concern, members felt that young people were especially prone to crack cocaine use because the drug could be obtained relatively easily. Finally, Congress believed that crack cocaine's purity and potency, relatively low cost, ease of manufacture, transportation, disposal, and consumption were leading to widespread use.
Congress demonstrated its continued concern about the increased dangers of crack cocaine in 1988 when it established a different penalty structure for crack offenses charged under the simple possession statute than for other drug offenses so charged (see Chapter 6). The clearest indication of congressional intent comes from floor statements by the amendments' chief sponsors. These statements suggest that 1) the apparently increasing supply of cocaine (particularly crack cocaine) threatened to create new users due to the drug's easy availability; 2) crack cocaine "cause[d] greater physical, emotional, and psychological damage than any other commonly abused drug"; 3) crack cocaine was considered "linked to violent crime," especially with gang activity; and 4) because the stiff penalties set forth in the 1986 Act presumptively discouraged dealers from carrying quantities above five grams, Congress assumed that "possession of as little as five grams means individuals [carrying such amounts] in most instances are dealers, not users."
The Commission's research shows that the use and marketing of crack cocaine were still in their infancy in the mid-1980s when Congress established the powder/cocaine quantity ratio and enhanced penalties for crack possession. This chapter reassesses the quantity ratio and enhanced penalties for crack possession in light of empirical information not available when Congress adopted these laws. The factors set forth below are those considered by Congress in establishing the present 100-to-1 quantity ratio.
a. Cocaine and Addiction
Neither powder cocaine nor crack cocaine are physiologically addictive; however, both are psychologically addictive (see Chapter 2). Moreover, psychological dependence usually is as devastating as physiological addiction. A comparison of the relative addictive qualities of the two forms of cocaine indicates that there is a greater likelihood of addiction resulting from the casual use of crack cocaine than from the casual use of powder cocaine. That this is so, however, is not due to the difference in the chemical makeup of the two substances, but instead results from the method of administration associated with each.
In particular, the three primary methods of administering cocaine are snorting, smoking, and injection (see Chapter 2). One can snort or inject powder cocaine or easily convert it to a smokable form; however, for the most part, those who smoke cocaine use crack cocaine.Although one can smoke "freebase" powder cocaine, the dangers inherent in such an activity, as a result of the substance's great flammability, and the availability of a "safe" smokable alternative, in crack, have rendered freebasing to be an unpopular and impractical method of administration. Moreover, the availability of a smokable alternative in crack has made an "intense" form of cocaine more accessible to juveniles. No matter the route of administration, use of cocaine produces the same type of physiological and psychotropic effects. The intensity and duration of these effects, however, differ significantly based on the method of administration; and it is the intensity and duration of the physiological and psychotropic effects that determine the likelihood of dependency and abuse. Specifically, the greater the amount of cocaine absorbed and the faster it is absorbed, the greater the intensity and the shorter the duration of the psychotropic effects. The greater the intensity of these effects and the shorter their duration, the greater the likelihood cocaine use will lead to dependence and abuse.
As a result, for a given quantity of cocaine, smoking crack cocaine or injecting powder cocaine produces the most intense physiological and psychotropic effects.The effects of smoking and injection are comparable. Although crack cocaine produces somewhat less intense effects, it does so at a slightly more rapid rate (see Chapter 2). Snorting powder cocaine produces less intense effects and does so at a much slower rate. For those who either smoke crack cocaine or inject powder, the effects begin rapidly (1-4 minutes), are intense, and dissipate quickly (30 minutes); for those who snort powder, the effects begin in 20 to 40 minutes and last about one hour. Accordingly, compared to those who snort cocaine, smokers and injectors are more likely to use cocaine frequently and are more likely to become cocaine dependant. Moreover, crack smokers are more likely to engage in binging.
The route of administration, therefore, can be an important factor in the creation of psychological dependence and abuse. Accordingly, the form of cocaine is significant to the extent that it acts as a proxy for a given route of administration. However, the form of cocaine operates only as a limited proxy for a method of administration. That is, crack cocaine can only be smoked, which means that crack is always in a form that makes its user most vulnerable to dependency. Powder cocaine, however, can be snorted, which renders it less addictive, or injected, which renders it more addictive. Accordingly, while crack always represents the most addictive form of cocaine, powder can represent either a less addictive or equally addictive form of the drug, depending on the method by which it is administered. Therefore, the form of cocaine can be an adequate proxy for addictiveness when the cocaine is in crack form, but an inadequate proxy when the cocaine is in powder form. Determining the appropriate degree of enhancement in penalty based solely on the form of cocaine, therefore, is difficult.
Compounding this difficulty is the existence of incomplete data on the percentage of people who inject cocaine versus those who smoke it. For example, if one knew that half of all cocaine users smoked crack cocaine and half injected powder cocaine, there would be no rational basis for distinguishing, on addictive grounds, the penalty for the two forms, as they would be equally addictive. The limited available data,Data on method of cocaine use during the past year from the National Household Survey on Drug Abuse show that 10 percent of cocaine users inject the drug, 28 percent smoke it, and 75 percent snort it. While there is little reliable data on the total consumption of powder versus crack or on the amount of powder snorted versus injected, the data suggest that considerably more powder is snorted than is injected. These data must be considered in light of the limitations inherent in the National Household Survey which potentially underrepresents lower-income populations and overrepresents middle or upper-income populations or those who reside in households (see Chapter 3). however, suggest that substantially more people smoke cocaine than inject it. Indeed, the ease of smoking, compared to the greater difficulty and unpleasantness involved in injecting any substance, suggests that smoking will be inherently more tempting for the first time user and more appealing for the repeat user than will injection. Moreover, to the extent that both smoking and injecting lend themselves to binge use, a user can smoke for a longer period of time than he/she can inject, due to the limit on the number of times one can inject something into one's body during a short period of time.
Ideally, to determine a precise ratio based solely on addictiveness, one would have to devise a formula that considered the relative increase in likelihood of addiction based on smoking or injecting versus snorting, as well as the relative proportion of users who smoked crack versus those who injected powder. Alternatively, one could conclude that calculating a ratio based on the form of the drug is too problematic, suggesting that one should not increase the ratio based on this factor alone.
In summary, the higher addictive qualities associated with crack combined with its inherent ease of use can support a higher ratio for crack over powder. However, determining the precise magnitude of that ratio based on the available evidence is difficult.
b. Psychosis and Death
The absence of studies focusing on cocaine and psychosis makes it difficult to support or refute congressional concern that more psychosis results from crack cocaine use than from powder cocaine or other drug use. As discussed below and in Chapter 5, much of the crime associated with crack cocaine use appears to be systemic (i.e., associated with the drug trade) as opposed to psychopharmacological (i.e., drug-induced criminal activity). Although the lack of cocaine-associated psychopharmacological crime should not be construed to mean that crack cocaine and powder cocaine use do not lead to psychosis, it provides a positive indication that cocaine use in both forms does not produce individuals psychotically driven to commit crime.
Research also is relatively scant with respect to drug use and death. The Drug Abuse Warning Network (DAWN) gathers data on drug-related emergency room visits and medical examiner cases as reported from selected hospitals and medical examiners in specified metropolitan areas (see Chapter 3). However, because neither data collection effort distinguishes between powder and crack cocaine, it is difficult to draw firm inferences about the possible different effects of powder and crack cocaine. Both data collection efforts provide information on route of administration which can be used, to a limited extent, as a proxy for the form of cocaine. For cases reporting information on the route of administration in 1991 (the most recent complete data available), DAWN reported that 38.2 percent of cocaine-related emergency room admissions involved smoking cocaine; 17.5 percent involved injection; and 11.3 percent involved snorting (see Chapter 3).In approximately 30 percent of the cases, the route of administration was unavailable. These data indicate that most cocaine-related hospital emergencies involve the two most rapid routes of administration smoking and injection with smoking crack accounting for twice as many admissions as injecting powder.
The medical examiner data suggest that the vast majority of drug-related deaths, 74.5 percent, involve polydrug use (see Chapter 3). Cocaine, either alone or in combination with another drug, accounts for 45.8 percent of the drug-related deaths. Among cocaine-related deaths, concurrent use with alcohol is the most deadly combination. Moreover, the number of drug-related deaths involving cocaine increased 20 percent between 1990 and 1991.
In contrast to the emergency room data, the DAWN medical examiner data indicate that injecting powder accounts for three times as many deaths as smoking crack. Specifically, the most frequent route of administration for cocaine-related deaths was injection (12.7%), compared to 4.3 percent for inhalation.Because in 70 percent of the medical examiner cases the route of drug administration was unavailable, these findings should be viewed with caution. Therefore, while most cocaine-related emergency room admissions result from smoking crack, most cocaine-related deaths result from injection of powder (see Chapter 3).
c. Correlation between Crack Cocaine and Other Serious Crime
As discussed in Chapter 5, both Congress and the public view violence as one of the greatest concerns associated with drug use and distribution. A secondary concern is the relationship between drug use and distribution and an increase in non-violent crime, as well as the relationship between drugs and a general breakdown in the social order in neighborhoods where drug use and distribution is most prevalent.
The Commission has heard frequently from certain observers that the advent of crack cocaine has devastated the innercities of America in a way uncharacteristic of any other drug. Nevertheless, identifying the extent to which a particular drug, alone or in combination with other factors, may have contributed to certain negative social phenomena is problematic. The prevalence of cocaine-exposed babies, children neglected or abandoned by mothers addicted to drugs, an increase in illegitimate births, or an increase in gratuitous violence (e.g., drive-by shootings) are complex issues not attributable to any single cause.
Drawing empirically sound conclusions about the use or distribution of any drug and its causal relationship to the commission of crime is difficult, because demonstrating such a relationship requires one to isolate the drug activity from other factors influencing criminal behavior. Drawing such conclusions about crack cocaine, a relatively new drug, is particularly difficult, given the very limited available research and law enforcement data. Moreover, there is even less reliable research comparing crack cocaine and powder cocaine in their relation to criminal activity. In particular, the Commission has had only three somewhat limited studies on which to rely in drawing inferences on this question. More studies in this area would be useful and, to the extent that Congress desires precise empirical conclusions, are necessary. Beyond the limitations in the research, arrest data generally are unhelpful in this area because urinalysis tests cannot distinguish between the presence of powder cocaine and crack cocaine in a subject's system. The administration of such tests at the time of arrest or during pretrial supervision cannot reveal which of the two forms of the drug may have been used at that time or, more importantly, at the time the offense was committed.
Notwithstanding these limitations, the available research suggests that crack cocaine is significantly associated with systemic crime that is, crime related to its marketing and distribution. At a Sentencing Commission hearing on crack cocaine, a panel of noted researchers agreed that crack's violence is associated with the emergence of an illicit market for a new drug and the attempts by competing factions to consolidate distribution (see Chapter 5). As a result, individuals operating on street corners and in open-air markets and crack houses are prone to be involved in, as well as victimized by, increased levels of violence. Consistent with its distribution forums, crack offenders are more likely to carry weapons than individuals trafficking in other drugs, a finding borne out in the Commission's data in which 27.9 percent of crack offenders sentenced in the federal courts in 1993 were found to possess dangerous weapons, compared to 15.1 percent of powder cocaine offenders.
Two popular forums for distributing powder and crack cocaine, street-corner or open-air markets and crack houses or shooting galleries, lend themselves to increased violence. The security of these forums often is maintained by lookouts or enforcers who carry firearms to protect street retailers or customers from law enforcement, rivals, and other customers. Further, crack houses and shooting galleries facilitate sex-for-drugs and the use of stolen property, firearms, and food stamps as mediums of exchange for drugs (see Chapter 4). The intimate nature of drug transfer in crack houses and shooting galleries as well as the "open" aspect of street-corner transactions make customers and retailers particularly vulnerable to violence.
No significant conclusions can be drawn from the available research regarding an association between crack cocaine and non-systemic crime (see Chapter 5). The limited research to date suggests that there is little distinction between crack cocaine and powder cocaine use in terms of psychopharmacological crime (i.e., crime resulting from the behavioral effects of the drug). Given the fact that crack and powder contain the same active ingredients, the only potential psychopharmacological difference likely would involve different effects resulting from the frequency of use, with inhalation of crack tending to produce more binge users than snorting of powder.
The Commission found virtually no research that compared the respective association of crack and powder cocaine with economically driven crime. Available research, although limited, suggests that there is some association between crack cocaine and economically driven crime. For example, Inciardi reports that 48 percent of men and 62 percent of women who used crack engaged in petty property crime, and that a significant minority of the men committed fairly high numbers of violent or potentially violent offenses (see Chapter 5). His study also reports that 69 percent of women crack users engage in prostitution (other studies reported in Chapter 3 indicate that women who use powder cocaine also engage in prostitution). Finally, Inciardi notes that the main criminal activity of participants in his study involved retail drug distribution. Other studies show a similar association between crack cocaine and economically driven crime, but none of the studies the Commission uncovered contrast this association to that for powder cocaine. Accordingly, the Commission lacks a basis for comparing the effects of crack and powder cocaine on economically driven crime.
The limited available research suggests that there appears to be more criminal activity associated with crack cocaine use and distribution than with powder cocaine use and distribution. However, nothing in this research permits a firm basis for numerically contrasting the two.
On the other hand, data collected by the Sentencing Commission provide precise information about the prior criminal records of federal defendants charged with distributing crack cocaine versus those charged with distributing powder cocaine. A comparison of federal drug defendants reveals that crack defendants have worse criminal records than any other category of federal drug defendant. Specifically, crack defendants are least likely to have the lowest criminal history score (Category I), with only 44.8 percent in Category I, as compared to 64.4 percent of powder cocaine defendants. Further, 4.1 percent of crack defendants have the most extensive criminal record (Category VI), while only 1.6 percent of powder defendants are found in that category. Of the three most serious criminal history categories, Categories IV-VI, 17.6 percent of crack defendants are found in these categories, compared to only 7.0 percent of powder defendants. Approximately six percent (6.3%) of crack defendants compared to 3.2 percent of powder cocaine defendants qualify for career offender status. The career offender provision of the guidelines refers to an offender who has at least two prior crimes of violence or drug trafficking and whose instant offense is a crime of violence or drug trafficking.
Crack defendants also are more likely to have a recent criminal record than any other category of drug offender, with 33.7 percent under a pre-existing criminal justice sentence at the time of their most recent federal offense, as compared to 18.9 percent of powder defendants. Crack defendants (18.7%) commit the instant offense within two years of release from imprisonment at a much higher rate than powder defendants (8.3%) (see Chapter 7).
While these numbers show that crack defendants typically have more serious criminal records than other drug defendants, the guidelines already increase an offender's sentence based on the severity and recency of his/her record. As a result, some offenders are punished further under the guidelines for behavior previously considered by Congress in setting an increased ratio for crack offenses.
d. Young People as Users and Distributors of Crack Cocaine
The National Household Survey sheds some light on whether young people are more prone to use crack than powder cocaine (see Chapter 3). For reporting year 1991 (the most recent year with complete data), approximately 16.7 percent of all cocaine users smoked crack at least one time (83.3% used powder cocaine at least once). Looking at trend data, the rates of those who reported using cocaine in any form during each of the survey years are consistently and significantly highest for individuals aged 18 to 25 years. The same is true for crack cocaine; it is most popular among young adults (ages 18-25).
A somewhat different picture emerges when one compares powder cocaine use to crack use within age categories. Powder cocaine remains more popular than crack cocaine at each age category. However, of those who used cocaine in the past year, a higher proportion of 12- to 17-year-olds used crack (26.7%), compared to 18- to 25-year olds (13.0%), 26- to 34-year olds (15.7%), or 35 years and older (21.4%).
Studies also show that, while both powder cocaine and crack cocaine distributors often are young, those involved in distributing crack are younger. The DEA cites the crack cocaine phenomenon as responsible in large part for the increase in juvenile involvement in drug trafficking. In addition, considerable research suggests that crack cocaine dealers use juveniles in more visible roles, based on the assumption that juveniles are more likely to escape detection and prosecution. Indeed, the street level sale of crack requires little sophistication and lends itself to the use of young people in a way that larger scale and more "sophisticated" drug trafficking activities might not. Young, unemployed or underemployed, illiterate, and otherwise impoverished persons, accordingly, are particularly susceptible to the allure of profits to be made from drug distribution (see Chapter 4).
As part of the Anti-Drug Abuse Act of 1986, Congress expressed its concern about traffickers using young people to distribute drugs when it created a new offense for using individuals under age 18 to distribute drugs. Congress reiterated its concern in the Anti-Drug Abuse Act of 1988 by directing the Commission to assign a minimum guideline base offense level of 26 for that offense, generally equivalent to a five-year minimum sentence.
e. Crack Cocaine in Relationship to Ease of Ingestion, Manufacture, Transportation, and Disposal and General Affordability
Crack cocaine typically is "smoked" in pipes constructed of glass bowls fitted with one or more fine mesh screens that support the drug. The user heats the side of the bowl, the heat causes the crack to vaporize, and the user inhales the cocaine-laden fumes through the pipe. Smoking crack cocaine achieves the efficiency of intravenous administration (very fast absorption into the bloodstream) without the inherent dangers associated with injecting powder cocaine directly into the circulatory system.
Powder cocaine that is insufflated (snorted) is equally easy to administer but does not have the same efficiency in terms of speed of absorption. Injecting or freebasing powder cocaine, however, is more complicated and dangerous (see Chapter 2).
Freebasing cocaine, popular among cocaine users in the 1970s, permitted the user to smoke powder cocaine and thereby receive the more intense and quick effects associated with injection. Freebasing, however, involved a fairly dangerous process. Media coverage following an incident in which comedian Richard Pryor suffered third-degree burns over his torso and face while freebasing cocaine prompted many freebase cocaine users to shift to smoking crack. Unlike the process for freebasing cocaine, powder cocaine may be converted into crack without the use of flammable solvents. Powder cocaine simply is dissolved in a solution of sodium bicarbonate and water, boiled, and a solid substance separates from the boiling mixture. This solid substance, crack cocaine, is removed and allowed to dry. The crack cocaine is broken or cut into "rocks," each typically weighing from one-tenth to one-half gram (see Chapter 2).
Because of its ease of manufacture, any distributor with enough powder cocaine, baking soda, and a stove or microwave has available a steady supply of crack cocaine. The distribution of crack cocaine does not require major trafficking efforts involving importation from other countries; rather, importation occurs when the cocaine is still in powder form. Crack cocaine usually is manufactured in the community in which it will be distributed, virtually eliminating the need to transport the drug long distances (see general discussion, Chapter 4).
Accordingly, with crack, distributors have a fairly easy manufacturing process that yields a "safe," smokable form of the drug that can deliver just as intense and as quick a high as could be had through the more cumbersome and less appealing process of injecting powder cocaine. Beyond its ease of manufacture, crack can be marketed in smaller, more cheaply priced units, thereby rendering it more appealing to people with less money. Indeed, as a glut of powder cocaine developed in the early to mid-1980s, prices for both powder cocaine and crack cocaine fell (see Chapter 4). Consequently, retail crack cocaine distributors developed new marketing strategies, the most significant of which involved selling crack in single-dosage units, in plastic vials or baggies, weighing between 0.1 and 0.5 grams apiece, affordably priced from $5 to $20. In contrast, powder cocaine was sold typically by the gram between five and ten doses for less affordable prices ($65-$100). The affordability of crack cocaine expanded its consumer base to lower income individuals.
In addition, because it is sold in smaller quantities than powder cocaine, many law enforcement officials believe that crack is more easily transported, distributed, and, if necessary, hidden or discarded (see Chapter 4). Some authorities, however, report that easy disposal is not limited to crack cocaine; these officials relate that retailers of both powder and crack cocaine "drip" traffic whereby they carry small quantities on their person for immediate distribution and leave additional quantities in "drop spots" to which they can return. The ease of disposal and the practice of "drip trafficking" increase the likelihood that, in the event of arrest, the retail dealer's criminal liability will be limited to the quantity on his/her person, a quantity that likely will be less than the total quantity the dealer intended to distribute.7 During the congressional debate related to increased penalties for simple possession of crack cocaine, members expressed concern that, because of the relatively small dosage units for crack cocaine, it is difficult to determine whether an individual carrying five grams and less would be carrying the drug for personal use or sale.
f. Use of Crack Cocaine and Public Health Concerns, such as, "Crack Babies," "Boarder Babies," and the Spread of HIV/AIDS
In the congressional debates of 1986 and 1988, members voiced concern about such social welfare issues as "crack babies," "boarder babies," and HIV/AIDS transmission associated with crack cocaine use. However, because medical tests cannot distinguish between the presence of crack or powder in a mother or newborn child, the relative frequency of use between the two types of drugs among pregnant women cannot yet be medically determined. To compare the relative usage, a researcher must ask the mother which form of cocaine she had been using. If future research found that significantly more pregnant women use crack cocaine than powder, it arguably would support a policy determination that crack distribution should be more severely sanctioned than powder distribution.
Similarly, because medically the two forms of cocaine cannot be distinguished, research cannot determine whether a baby born of a crack mother suffers more harm from its mother's drug usage than a baby born of a mother who used powder cocaine. Studies find that cocaine causes constriction of blood vessels, restricting the flow of oxygen and other vital nutrients to the fetus (see Chapter 3). Cocaine use also is associated with in utero developmental problems, including increased incidence of spontaneous abortion, small head circumference, low birth weight, retarded growth, and urogenital abnormalities. In addition, infants exposed to cocaine prior to birth are at higher risk of Sudden Infant Death Syndrome, seizures, or neurobehavioral dysfunctions. Building on what the Commission has learned with respect to crack cocaine - i.e., because the high and low are quicker when using crack cocaine, crack users are more likely to use increased quantities of the drug or to engage in binging it is likely that pregnant women who use crack cocaine will expose their infants to greater quantities of the drug and, thus, to more harm. Furthermore, babies exposed to crack may experience greater problems because crack smokers achieve higher concentration of the drug in their bloodstreams than do cocaine snorters. These inferences, however, have not been documented in the research literature.
In addition to cocaine-exposed babies, concern has been raised about the influence of substance abuse and maternal neglect, teenage pregnancy, and the phenomenon of boarder babies. The Commission's research, however, reveals virtually no studies that address these concerns as they relate to crack cocaine. Some of the research, although very limited, focuses on cocaine in general, but the majority of studies address the broader question of substance abuse. That these societal problems exist seems quite clear (see discussion Chapter 3); much of the evidence, however, comes from news magazine reports as opposed to medical and scholarly journals. For example, Time magazine reported on some of the "tragic chapters in the saga of crack," illustrating its story with anecdotal quotes from individual doctors and gripping accounts of individual children but no empirical research findings.
The numbers associated with the above social pathologies are staggering. In particular:
about 375,000 babies, or 9 percent of births each year, are exposed to illegal drugs in the womb. Nearly 1 of every 3 births is out of wedlock. Two out of 3 African-American babies are born to single mothers ... the figure for white babies is 22 percent and skyrocketing. Black or white, these women and many are that only biologically given their youth tend to be ill educated and unable to provide for themselves or their offspring. M. Ruby, "The Children's Crusade. How to Improve Social Conditions for Children," U.S. News & World Report, 112 (Dec. 13, 1993).
That these phenomena (neglect, teen pregnancy, boarder babies) coincide with a rise in crack cocaine use leads many to believe that the two are somehow related and they may be. Although no medical data compare the rate of crack-exposed babies to powder-exposed babies, the dramatic rise in cocaine-exposed babies coincidental with the introduction of crack into this country suggests an obvious relationship.
That there is no empirical research pointing to the respective relationships between crack, powder, and the problems of neglect, boarder babies, and teen pregnancy does not suggest that empirical work has not been done. The scholarly journals report a serious problem with substance abuse in general among mothers. One study reports that, in New York City, the proportion of birth certificates indicating maternal illicit substance abuse tripled between 1981 and 1987, and that 40 percent of 300 or more babies boarded in city hospitals each day resulted from maternal drug abuse (see Chapter 3). Another study, pointing to the problem of polydrug use among pregnant women, found that most of the mothers of drug-exposed children had been polysubstance abusers during their pregnancy.
Many states recognize the birth of drug-exposed infants as evidence of maternal neglect. Several states have enacted laws that allow child abuse charges to be brought against any woman with illegal drugs in her bloodstream who gives birth to a child. Other states simply remove drug-exposed babies from their mothers, making them wards of the state. Some states have tried these methods and rejected them in favor of mandatory treatment programs in which mothers must enter treatment or lose their children.
The findings related to HIV/AIDS transmission and cocaine use are mixed as well. More than 30 percent of all individuals with Acquired Immunodeficiency Syndrome (AIDS) are abusers of intravenous (IV) drugs. Thousands of other IV drug abusers carry the Human Immunodeficiency Virus (HIV), the virus that causes AIDS. The spread of the AIDS virus is positively associated with IV drug injection. In the stereotypic "shooting gallery" environment, drug injection equipment is passed from one user to another, producing an increased risk of HIV-transmission. Because of the short-lived euphoria of cocaine, powder cocaine injectors are more likely to reinject frequently than are injectors of other illicit drugs.
However, it cannot be concluded that powder cocaine, because it is injected, creates a greater risk of AIDS transmission than crack (see Chapter 3). Increasingly, crack cocaine smokers exhibit sexual behavior that places them at risk of HIV-transmission. These high-risk sexual behaviors may include multiple partners, sex without condoms or other barriers, sex for crack, and sexual activity during or following drug use. Consequently, rates of HIV infection are nearly equal between crack cocaine smokers (at greater risk due to their sexual practices) and powder cocaine injectors (at risk because of the potential for infection from shared injection equipment).
2. Additional Issues Relevant to the Powder Cocaine/Crack Cocaine Differential
In addition to the concerns articulated by members of Congress, the Commission's research has uncovered a number of other issues that are relevant to the debate over the propriety of the current powder to crack cocaine quantity ratio.
a. Polydrug Use and Distribution
Past DAWN reports indicate that cocaine users, in general, are more likely to be polydrug users than are other drug users. DAWN reports that, in 1992, 60.0 percent of cocaine-related emergency room admissions and 73.2 percent of all cocaine-related deaths involved at least one other drug (see Chapter 3). For medical emergencies resulting from multiple drug use, the most common combination is cocaine and alcohol. Concurrent use of heroin and cocaine is the second most likely cause of cocaine-related emergency room admissions. Unfortunately, as these studies do not distinguish between powder and crack cocaine, an important part of the question remains unanswered.
Moreover, researchers and law enforcement officials indicate that cocaine distributors at all levels generally distribute more than one drug. According to the DEA, all of the wholesale drug trafficking gangs Jamaican Posses, Crips and Bloods, Dominican, and Haitian began as polydrug traffickers, concentrating primarily on marijuana and powder cocaine, and continue to sell those drugs as they move into new markets. The same generally is true for crack distributors; many started out distributing other drugs and moved to crack cocaine as the market expanded, but continue to offer other drugs for sale as well (see Chapter 4).
b. Women as Distributors of Crack Cocaine
In much the same way as youth are used to distribute crack (see discussion above), women appear to have a somewhat greater role in crack distribution relative to the distribution of other drugs. Women are used by distributors to make straw purchases of firearms or to rent residences to use as crack and stash houses so that the distributor can remain unknown to the gun dealer or landlord. As with juveniles, women are viewed as less at risk for prosecution and lengthy sentences and therefore more attractive as distributors. Indeed, studies have shown that many of the young people involved in drug distribution are women (see Chapter 4).
c. Racial Implications
One of the issues driving the debate concerning the different penalty structures for crack and powder cocaine relates to the perception of disparate treatment for defendants convicted of either possession or the distribution of crack cocaine. Some argue that the 100-to-1 quantity ratio (powder to crack) is not in keeping with the policy, goal, and mission of federal sentencing - that is to be fair, uniformly consistent, and just. That argument goes on to assert that 88.3 percent of the offenders convicted in federal court for crack cocaine distribution in 1993 were Black and 7.1 percent were Hispanic (see Chapter 7). While neither the decisions of the courts nor the research conducted by the Commission support a finding that racial bias or animus undergirded the initiation of this federal sentencing law, the problem with perception still obtains. To the extent that a comparison of the harms between powder and crack cocaine reveals a 100-to-1 quantity ratio to be an unduly high ratio, the vast majority of those persons most affected by such an exaggerated ratio are racial minorities. Thus, sentences appear to be harsher and more severe for racial minorities than others as a result of this law, and hence the perception of unfairness, inconsistency, and a lack of evenhandedness.
d. Increased Penalties for Higher Level Distributors
In its determination of the appropriate quantity of a drug necessary to trigger a mandatory minimum penalty for that drug, Congress evaluated the relative harms presented by each drug and set an amount representative of that judgment. Thus, believing heroin and methamphetamine to create more social harms than powder cocaine, Congress set the "ratio" for those drugs higher than that set for powder cocaine. Conversely, believing marijuana to be far less dangerous than powder cocaine, Congress set the quantity necessary for the former to trigger a mandatory penalty at a much higher level than for powder cocaine.
In setting the ratio for crack cocaine versus powder cocaine, Congress likewise expressed its belief about the relative harms of those two substances. Because crack and powder are two forms of the same drug, with one form produced by a simple conversion process applied to the other, the vastly different ratios between the two forms has created tremendous anomalies in the federal sentencing system. Specifically, large scale suppliers of powder cocaine distribute to mid-level suppliers who in turn sell the powder down the distribution chain until it reaches retail dealers who may traffic in the powder, or who may add baking powder to the powder cocaine, heat the mixture, and create crack, which can then be distributed.
When Congress set mandatory minimum penalties for drug trafficking offenses in 1986, one of its primary objectives sought to ensure that major and serious drug dealers received harsher, more certain punishment. Congress assumed that an offender would be punished in proportion to the quantity of drug that he/she sold. In this way, an offender who distributed a greater quantity of a given drug throughout a community, inflicting greater societal harms due to increased availability of the drug to more people, would receive higher penalties. The 100-to-1 quantity ratio between crack and powder cocaine, however, tends to confound that assumption.
Specifically, research suggests that this policy may achieve its intended effect with most drugs, but that often the mandatory minimum penalties are applied to lower-level crack cocaine offenders (see Chapter 7). As a result, crack cocaine offenders differ characteristically (e.g., smaller range of activity, less likely to be characterized as performing important functions) from other drug offenders at the higher penalty levels.
Issues of "fairness" or "just punishment" not to mention frustration of some congressional objectives result when relatively low-level crack retailers receive higher sentences than the wholesale-level cocaine dealer from whom the crack sellers originally purchased the powder to make the crack. For example, two defendants in a recent federal case purchased approximately 255 grams of powder cocaine from their supplier, returned home, and "cooked" the powder cocaine, producing approximately 88 grams of crack cocaine. Unhappy with the amount of crack produced typically the yield should have been about 200 grams the defendants called their supplier and complained about the poor yield. The supplier agreed to replace the 255 grams of powder cocaine at no additional cost. The defendants returned to their supplier with the 88 grams of crack in their possession and were arrested prior to completing the transaction.
At sentencing, the supplier's guideline sentencing range (a first-time offender) for selling the 255 grams of powder is 33 to 41 months' imprisonment; the range for the defendants (also first-time offenders) who bought a portion of the supplier's powder and cooked it is 121 to 151 months. In addition, the two "crack" defendants are subject to a mandatory minimum penalty of ten years, while the supplier who sold them the powder cocaine that enabled them to make crack is subject to no statutory minimum penalty. This case illustrates the anomalous effects of the 100-to-1 quantity ratio.
In more general terms, in order to receive a five-year mandatory minimum sentence, a crack dealer must traffic only in five grams of crack. Five grams of crack represents 10-50 doses of crack, with an average retail price of $225-$750 for the total five grams. In contrast, a powder cocaine dealer must traffic in 500 grams of powder cocaine in order to receive the same five-year sentence. The 500 grams of powder cocaine represent 2,500-5,000 doses, with an average retail price of $32,500-$50,000 for the 500 grams.
Viewed another way, the 500-gram quantity of powder cocaine that can send one powder cocaine distributor to prison for five years can be distributed to up to 89 different street dealers who, if they chose to turn it into crack cocaine, could make enough crack to trigger the five-year penalty for each defendant.
e. Prosecutorial Practices and Resources
In setting stiff mandatory minimum penalties carrying a sharp distinction between powder and crack cocaine, Congress attempted to frame a national policy that would be applied uniformly across the country in federal drug cases. The Commission's research, however, suggests that uniform application is not occurring. Because of widely varying but almost universally lower state penalties for crack, the decision to prosecute in federal versus state court often can make a dramatic difference in an individual's sentence, thereby making the choice of forum perhaps the most important determinant of sentence length. The Commission lacks national data on this important question, but some limited inferences can be drawn based on reported crack convictions.
The present record shows differences in prosecution practices (see Chapter 6). For example, the more rural district of Central Illinois has experienced a considerably higher proportion of federal crack cocaine convictions than the largely Chicago-driven district of Northern Illinois. Similarly, Brooklyn, New York, reports a much lower proportion of federal crack sentencings than Northern and Southern West Virginia.The Commission does not mean to suggest that any apparent disparities are unwarranted. As a general matter, the Commission has not analyzed various factors that might explain these and other differences, including the strength of the state and local law enforcement efforts directed at the crack cocaine trade, the relative punishment available through state statutes, differing needs and problems facing each district, and resource allocation issues. Yet, according to New York City Police Department data, 45.8 percent of all drug arrests in 1989 were crack cocaine related (see Chapter 6). Consider the fact that in 1993 the state of South Carolina (n=118) had more crack cocaine cases than the states of Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming combined (n=113). Certainly, resource limitations or differing state/federal priorities may restrict the prosecution of crack cases in larger federal districts and help to explain why some of the smaller, more rural federal districts have experienced larger numbers of crack prosecutions. Nevertheless, these data suggest that the uniform national policy Congress had hoped to engender does not play out in practice.
As discussed above, a review of the relatively sparse empirical evidence available concerning those factors Congress considered in distinguishing crack from powder cocaine leads to mixed conclusions and few clear answers. Nevertheless, the Commission concludes that a policymaker could infer that crack cocaine poses greater harms to society than does powder cocaine. For example, because smoking crack cocaine lends itself to binge use in a way not found with snorting powder - the most popular way of administering that form of the drug - crack has a greater potential for creating dependency. Moreover, the ease by which crack can be administered and its ability to be marketed cheaply have made it particularly appealing and accessible to a broader population, including some of the most vulnerable members of society: the poor and the young. Further, both forms of cocaine appear to be associated with systemic violence, that is, violence associated with the marketing of a drug; however, crack dealers generally, tend to have a stronger association with systemic violence and are more likely to possess weapons than powder cocaine dealers. Finally, crack dealers, generally, have more extensive criminal records than other drug dealers, and they tend to use young people to distribute the drug at an increased rate.
A conclusion that crack cocaine poses somewhat greater harm to society, however, does not answer the question whether the 100-to-1 quantity ratio between powder and crack cocaine is one that this Commission would recommend. In addressing that question, the Commission notes that there is no precise method by which one can determine the optimal penalty differential between drugs or even between kinds of offenses. While medical and pharmacological research can calibrate closely the appropriate amount of medication necessary to treat an illness, there is no comparable test to identify the appropriate punishment level for the illegal sale of a controlled substance. Instead, in establishing a penalty level for trafficking in a particular drug, the policymaker must weigh pharmacological evidence and the other societal harms posed by the substance to arrive at a sound penalty level.
Accordingly, even while agreeing that crack may be more harmful than powder cocaine, the Commission is not prepared at this time to say definitely how that additional harm should be accounted for within the current penalty scheme. Indeed, for reasons discussed below, the Commission will not recommend in this report a particular ratio or ratios or a particular structure that it can endorse. Nevertheless, the Commission firmly concludes that it cannot recommend a ratio differential as great as the current 100-to-1 quantity ratio.
Several factors lead the Commission to a conclusion that a 100-to-1 differential cannot be recommended. First, when Congress established the quantity ratio in 1986, there were no sentencing guidelines; rather, the guidelines took effect in 1987 and were not fully implemented until 1989. Accordingly, Congress had only the possibility of an enhanced ratio to look to in capturing, in a sentencing structure, the additional harms that legislators felt inhered in crack cocaine. Therefore, to the extent that the guidelines now provide a punishment for some of those same factors subsumed in the ratio, those factors generate an enhancement both through an increased ratio differential and through guideline adjustments. In short, they are doubly punished through the interplay of the two structures.
Accordingly, if Congress believed that certain factors warranted a 100-to-1 quantity ratio and if the subsequently adopted guidelines provided a punishment for some of those factors, then, as a logical matter, the ratio should be lowered by an amount commensurate with the extent to which these factors are addressed by the guidelines. For example, Congress was concerned greatly about the increase in crime, and particularly the increase in violent crime, resulting from the trafficking and use of crack cocaine. Some factors, however, such as the more addictive nature of crack, clearly are not addressed by the guidelines. Other factors, such as a tendency toward increased violence associated with crack distribution, are addressed, at least in part.
Specifically, the likelihood of violence in connection with the trafficking of a drug is increased greatly if those trafficking in that drug carry guns or have prior criminal records. Certainly the harm of the crime is greater if someone is killed. The guidelines can provide an enhancement for each of these factors. That is, a defendant who carries a firearm or is involved in a drug conspiracy in which another participant carries a firearm will receive an enhancement for possession of that firearm. In addition, the punishment of a defendant who has a prior record is increased in proportion to the extensiveness of that record. Further, if in relation to the crack distribution a victim is killed, the guidelines typically provide a life sentence and, because there is no parole in the federal system, a life sentence means life in prison.
Although the guidelines provide punishment for some of the factors that led Congress to establish the 100-to-1 quantity ratio, the guidelines do not address all of the factors that concerned Congress. For example, no provision of the guidelines accounts for the increased addictiveness of crack or its increased attraction as a result of its cheap marketability to a broader and more vulnerable part of the population. Neither do the guidelines address completely all aspects of the relationship between crack and crime associated with crack distribution or other social consequences. Thus, concerns about unnecessarily duplicative punishment between the more finely calibrated sentencing guidelines and the broader brush 100-to-1 quantity ratio explain, but only partially, the Commission's conclusion that the 100-to-1 quantity ratio should be reconsidered.
Another central basis for the Commission's rejection of this ratio is the extreme anomalies in sentencing produced by such a high differential in penalties between two easily convertible forms of the same drug. Crack cocaine is made through a simple conversion process applied to powder cocaine. Thus, those who traffic in crack necessarily have obtained the "raw material" for their drug through the powder cocaine distribution chain. One premise of the mandatory minimum sentencing structure is that, all other things being equal, a drug dealer's danger to society is in direct proportion to the quantity of the drug in which he/she deals. Yet, as a result of the ratio differential, a large scale powder cocaine dealer who trafficks in 500 grams (2,500-5,000 dosage units) of powder cocaine will receive the same sentence as a crack dealer who has sold only 5 grams (10-25 doses) of crack cocaine; that is, a five-year sentence of imprisonment.
Such a vast difference in the quantity of drug necessary to trigger the same sentence would be acceptable if the threat of increased dangers and harms created by crack versus powder cocaine appeared commensurate. Yet, even though crack is arguably more addictive than powder, when the latter is only snorted, the Commission cannot say that the increased likelihood of dependency or binge use posed by crack is commensurate with a ratio differential as great as 100-to-1.
Similarly, although evidence suggests that the trafficking and use of crack cocaine have engendered more violence associated with marketing the drug than has powder cocaine, the evidence does not indicate that the increased level of violence and crime justifies a ratio as large as 100-to-1. Moreover, to the extent that some members of Congress expressed concern in 1986 that use of crack tends to alter a person's behavior in such a way as to cause that person to commit a crime (psychopharmacologically induced crime), the evidence does not suggest any greater association for crack than for powder cocaine with that type of criminal activity.
For all of these reasons, the Commission concludes that the 100-to-1 quantity ratio that presently drives sentencing policy for cocaine trafficking offenses should be re-examined and revised.
In the Commission's view, the considerations described above suggesting a need for reexamination of the 100-to-1 quantity ratio underlying cocaine trafficking penalties similarly warrant congressional reconsideration of the dramatic distinction in simple possession penalties for crack versus powder cocaine and other drugs. A number of other concerns also point to the need to modify this policy.
First, focusing on the difficult problem of user/possessors, there appears to be an insufficient basis for punishing heavy crack users who possess a measurable fraction over five grams (10 to 50 doses, at .1 to .5 gram/dose) by a mandatory minimum term of imprisonment (five years) that is five times the maximum imposable sentence (one year) for simple possession of a similar or greater quantity of any other drug. In general, the unique approach to emphasizing severe punishment of those who possess crack for personal consumption is at odds with the prevailing, treatment-oriented approach prescribed by Congress for other drug users/possessors.
Secondly, the crack simple possession penalties have created sentencing anomalies and unwarranted disparities in the treatment of essentially similar defendants, results that conflict with the fundamental purposes of the Sentencing Reform Act. In particular, the sentencing "cliff" between a first offender who simply possesses as much as 5.0 grams of crack (or any quantity of any other drug) and an otherwise similarly situated defendant having a minutely measurable greater quantity (e.g., 5.01 gram) of crack - statutory maximum sentence of one year's imprisonment for the former, minimum sentence of five years' imprisonment for the latter - creates a wide disparity and disproportionality that the sentencing guidelines cannot rectify. And, for repeat possessors of small quantities of crack (greater than three grams but less than five grams for a first repeater, greater than one gram but less than five grams for a second repeater), the unusual statutory scheme creates the anomalous result of the defendant faring better if convicted and sentenced as a trafficker (ordinarily the more serious offense) than if sentenced under the simple possession statute.
The Commission strongly recommends against a 100-to-1 quantity ratio. Having said that, the Commission is not prepared in this report to recommend a specific different ratio or a specific different structural approach to deal with the enhanced dangers believed to be presented by crack. Rather, as a priority matter, the Commission intends to develop a model or models for Congress to consider in determining whether to revise the current approach that it takes in the sentencing of crack offenses.
At the outset, the Commission will focus on a model that maximizes the development of offense- and offender-specific guideline enhancements addressing as many of the discrete, substantial harms associated with crack offenses as reasonably can be handled in a guideline system. For example, Congress is rightly concerned with the use of juveniles in distributing crack and the growing problem of cocaine-exposed babies. To address these concerns relating to some but not all crack distribution offenses, the Commission will investigate the feasibility of a guideline enhancement that additionally punishes those who engage youth to distribute drugs and an enhancement for those who sell crack to pregnant women. Currently, an offender does not receive enhancement for these acts unless the government charges the specific act and a conviction results.
Further, Congress accurately expresses concern with the violence associated with crack distribution. The Commission will examine more effective means of incorporating appropriate enhancements for that violence into the guidelines. In addition to the currently available enhancements for weapons and prior criminal record, the Commission might add enhancements for type of weapon, discharge of weapon, injury to victims, bystander injury, and crack houses or shooting galleries.
In comparison to a penalty scheme that relies exclusively or primarily on a quantity ratio to distinguish among offenders warranting greater punishment, this approach is distinctly fairer and more consistent with the more uniform but appropriately individualized sentencing approach Congress envisioned under the Sentencing Reform Act. To illustrate using the youth as distributor phenomenon, consider that, to the extent that a ratio is used as the principal means of meting out greater punishment for crack offenses and that ratio is increased to punish those who engage youth to distribute crack, such an enhancement also has the undesirable effect of overpunishing the defendant who may have never been involved in such a venture. In contrast, a well-crafted guideline provision that is focused specifically on the particular harm of engaging youth to distribute crack will additionally punish only those who have created that identified harm.
Following this approach, the Commission will attempt to identify all such harms frequently and substantially associated with crack offenses and seek to determine the extent to which they can be addressed in a guideline system. More specifically, the Commission will consider, to the extent relevant to congressional concern and the purposes of sentencing as set forth at 18 U.S.C. 3553(a)(2), the following: 1) the form of cocaine involved; 2) whether a firearm or other dangerous weapon was involved; 3) whether the offense resulted in serious bodily injury or death to another person; 4) the quantity of cocaine involved; 5) the extent to which the powder cocaine defendant knew the drug would be converted into crack; 6) the extent to which the offense involved systemic crime, that is, crime related to the drug's marketing, distribution, and control; 7) the extent to which the offense involved social harms, that is, harms associated with increased addictiveness, parental neglect, child and domestic abuse, and high risk sexual behaviors; 8) whether the offense involved the use or employment of any person under the age of 18; 9) whether the defendant performed a managerial or leadership role in the offense; 10) the defendant's prior criminal record; and 11) any other aggravating or mitigating factors necessary to ensure adequate and appropriate punishment for defendants convicted of cocaine offenses.
The Commission is aware that there may well be some harms that are inherent in the drug itself and that, as a practical matter, are not addressable through this type of specifically tailored guideline provision. For example, to the extent that crack is more addictive than powder cocaine, that concern may be addressable only through an enhanced ratio or penalty differential. Indeed, Congress has recognized, and appropriately so, that some drugs simply are more harmful than others, and it has accounted for those differences by establishing a different ratio or different quantity necessary to trigger a mandatory penalty. Accordingly, if the Commission ultimately concludes that some quantity ratio between powder and crack cocaine is necessary, that differential can be reflected by establishing appropriately different guideline base offense levels for offenses involving the two drugs.
Building on a review of the guidelines for drug trafficking offenses that is already well underway, the Commission expects that it can develop and submit to Congress one or more penalty scheme models of the general form described above no later than the 1995-96 amendment cycle.Under current law, the Commission is restricted in the timing of any submission of proposed guideline amendments to the limited timeframe between the convening of a session of Congress and May 1. See 28 U.S.C. 994(p). Congress, of course, has the prerogative to address the 100-to-1 quantity ratio applicable to cocaine trafficking offenses at any time.
The Commission further recommends that Congress revisit the penalties uniquely applicable to crack simple possession penalties. Much of the rationale for reassessing the 100-to-1 quantity ratio applicable to cocaine trafficking offenses similarly applies to the penalties uniquely applicable to crack simple possession offenses. If Congress were to address the 100-to-1 quantity ratio applicable to trafficking offenses by increasing the amount of crack equating to the five- and ten-year mandatory minimums, some conforming modification in 21 U.S.C. 844(a) would be necessary to ensure that the lesser-included offense of simple possession of crack is not punished more severely than the more serious trafficking offense.
The Commission is fully cognizant of Congress's ultimate authority over sentencing policy. It also recognizes that approaches other than the approach suggested here could address the fundamental need for a fairer, more effective cocaine sentencing policy. This said, having broadly delegated to the Sentencing Commission responsibility for developing a comprehensive and rational system of sentencing guidelines for all offenses, Congress should consider relying on the same approach to implement appropriate policy adjustments in this specific area. Among other advantages, this approach would permit the Commission, as an ongoing expert body charged with continually refining the guidelines system, greater flexibility to make adjustments reflecting advances in knowledge about cocaine and its societal problems. Most importantly, through the guidelines system, consistent, appropriately individualized, and substantially fairer sentencing results can be achieved that will effectively promote the purposes of sentencing.
United States Sentencing Commission