STATEMENT OF THE COMMISSION MAJORITY IN SUPPORT OF
RECOMMENDED CHANGES IN COCAINE AND FEDERAL SENTENCING POLICY
I.
On February 28, 1995, a unanimous Sentencing Commission issued a special report to the Congress on cocaine and federal sentencing policy recommending that the current sentencing scheme for cocaine offenses be changed. The report was issued in response to both a specific congressional directive contained in the Violent Crime Control and Law Enforcement Act of 1994 and general criticism received by the Commission of current cocaine sentencing policy. Congressional and public concern over current policy stem primarily from the fact that those convicted of crack cocaine distribution, most of whom are minorities, are punished much more severely than those convicted of powder cocaine distribution without sufficient justification.
In its report, the Commission strongly affirmed that not only are crack cocaine and powder cocaine very dangerous drugs, but crack cocaine is associated with greater harms than powder cocaine. Of greatest concern to the Commission was the seemingly random, predatory violence (particularly the drive-by shootings), as well as the use of juveniles, that seems to accompany the distribution of crack cocaine. The Commission concluded, however, that the current sentencing scheme which calculates sentences for all crack cocaine offenders using a 100-to-1 quantity ratio and provides for sentences several times longer on average than for similar powder distributors is unfair and mistargeted. Under the 100-to-1 quantity ratio, an offender must distribute 100 times as much powder cocaine as a similar crack offender to receive the same base sentence. Thus all crack cocaine offenders, whether violent or non-violent, receive the especially severe sentences.
The Commission indicated in its report that it would seek to develop a method by which the discrete and substantial harms, such as use of firearms, associated with some crack cocaine offenses could be addressed and accounted for through targeted guideline enhancements. These enhancements would adjust the base sentences and consequently would result in more severe punishment for those defendants responsible for the added harms. After adding these enhancements, the Commission would determine if other differences between crack and powder cocaine were sufficient to justify different penalties based solely on the form of the drug.
In examining crack cocaine's distinct harms detailed in the report, it is clear that many in fact are already accounted for in the current guidelines. For instance, the report recognized that federal crack cocaine offenders generally have more extensive criminal records and thus pose a greater danger to society. The current guidelines already properly provide for enhanced penalties for those with greater criminal histories as well as very severe sentences for career offenders and armed career criminals.
However, the Commission determined that other harms were not adequately addressed. For example, crack offenders who use a firearm in the course of the drug offense only receive approximately a 25 percent increase in their sentence under the current guidelines. Through its normal amendment process, the Commission has adopted a number of amendments to the guidelines that specifically address weapons and other aggravating factors associated with some crack cocaine offenses. These amendments provide for considerably higher sentences for the use of a firearm during a drug offense, the involvement of assault and other prohibited weapons, the involvement of criminal street gangs in drug offenses, drive-by shootings, and the use of juveniles in the commission of offenses. Together with existing guidelines, substantially higher sentences will result for offenders who are responsible for the predatory harms associated with crack cocaine trafficking through enhancements for the following aggravating factors:
1. enhanced penalties if death or serious bodily injury results from the use of the drug (2D1.1(a));
2. substantially enhanced penalties for possession and use of a dangerous weapon in the course of a drug crime (2D1.1(b)(1));
3. enhanced penalties for possession of prohibited assault or other National Firearms Act weapons in a drug crime (2D1.1(b)(2));
4. enhanced penalties if a victim was murdered in the course of a drug crime (2D1.1.(d));
5. enhanced penalties if the drug crime involved either a juvenile or a pregnant woman or occurred in a protected location (2D1.2, 3B1.4);
6. significant penalties for drive-by shootings (2D1.1);
7. enhanced penalties if the drug crime involved a continuing criminal enterprise (2D1.5);
8. enhanced penalties if any victim was restrained or was otherwise especially vulnerable (Chapter Three, Part A);
9. enhanced penalties for leaders or organizers in drug crimes (Chapter Three, Part B);
10. enhanced penalties for drug defendants who obstruct justice (Chapter Three, Part C);
11. enhancements for drug defendants who have a significant criminal history; severe sentences for those with two or more prior drug offenses (Chapter Four); and
12. upward departures from the otherwise-applicable guideline sentence if the offense involved a criminal street gang, resulted in death, significant physical injury, extreme psychological injury, extreme conduct, or any number of other possible aggravating factors (Chapter Five).
With the availability of these enhancements, the Commission majority has concluded that the current tough sentences that are imposed on powder cocaine offenders under the guidelines are equally appropriate for crack cocaine offenders. In historical context, these sentences are substantially longer than typical sentences imposed on cocaine offenders before implementation of the guidelines. Moreover, we have no evidence that the sentences for powder cocaine are too low or that equalizing the quantity ratio between powder and crack cocaine will result in crack cocaine sentences that are too low.
Importantly, equalizing the quantity ratio between crack and powder cocaine will not result in equal sentences for crack cocaine and powder cocaine offenders who differ in relevant ways. Commission analysis shows that, under the amended guidelines, crack offenders will receive sentences that are, on average, generally at least twice as long as powder cocaine offenders involved with the same amount of drug. These longer sentences are due primarily to the fact that crack offenders are more likely to receive the aggravating adjustments provided under the guidelines. Table 1 shows the average guideline sentence for powder and crack cocaine offenders at each base offense level. At base offense level 18, for example, corresponding to drug amounts of 100-200 grams, powder cocaine offenders receive average sentences of 28.6 months, while crack cocaine offenders receive average sentences of 53.6 months. As this example indicates, the guideline enhancements work to lengthen sentences for the worst offenders. By the same token, offenders whose crime involves no aggravating characteristics receive appropriately shorter sentences. As noted in Table 1, the lengthier sentences for crack compared to powder offenders are consistent at all base offense levels. This, we feel, comports with the fairness concept Congress had in mind when the guidelines scheme was adopted.
II.
In creating a proper sentencing scheme for crack cocaine offenders, the Commission had to determine whether there were harms associated uniquely with all crack cocaine offenses that were not taken into account by the enhancements listed above. The Commission's drug guidelines have always recognized that illegal drugs, in and of themselves, are a menace to our society and that certain inherent destructive properties of illegal drugs cannot be accounted for through enhancements. These properties must be accounted for, at least to some extent, in base sentences by reference to drug type and drug quantity. The Commission has always differentiated among different drug types, punishing offenders trafficking in more dangerous drugs more severely than less dangerous drugs. This proposal should in no way be interpreted as a change in that basic philosophy.
Nonetheless, six inescapable facts lead the Commission to conclude that the base sentence for crack and powder cocaine should be the same. First, the Commission's guidelines provide for severe punishment for those trafficking in powder cocaine. There have been few if any complaints about the leniency of these guidelines. Second, powder and crack cocaine have the same active ingredient - the cocaine alkaloid - and both produce the same type of physiological and psychological effects. Third, while smoking crack cocaine can lead to addiction in a greater number of cases than can snorting powder, injecting powder cocaine is as dangerous as or more dangerous than smoking crack. In light of the fact that crack cocaine can be easily produced from powder cocaine, the form of cocaine is simply not a reasonable proxy for dangerousness associated with use. Fourth, any quantity ratio greater than equivalency will lead to the unfair result that more sophisticated, higher-level powder distributors will be sentenced relatively less severely than some of the retailers they supply. Fifth, the present system results in obvious punishment inequities by providing the same penalty for 500 grams of powder (1/2 kilo) - yielding between 1,000 and 5,000 doses and costing up to $75,000 - as for five grams of crack cocaine - yielding between 10 and 50 doses and costing up to $750. And sixth, any quantity ratio higher than equivalency will impact almost entirely on minority defendants.
We are aware that a host of social maladies have been attributed to the emergence of crack cocaine, such as urban decay or parental neglect among user groups. After careful consideration, the Commission majority concluded that increased penalties are not an appropriate response to many of these social problems. We were unable to establish that these social problems result from the drug itself rather than from the disadvantaged social and economic environment in which the drug often is used. We note that these problems are not unique to crack cocaine, but are associated to some extent with abuse of any drug or alcohol. Nor does the fact that crack is typically sold in small amounts, which may make it more readily available among lower-income groups, justify increased punishment compared to a form of the drug that is more commonly sold in amounts available only to the affluent. The Commission does not believe that longer punishment can be justified solely because a particular form of a drug is more likely to be used by a disadvantaged population.
Neither those outside the Commission nor the commissioners who disagree with the decision to equate base sentences for crack and powder cocaine have offered an alternative quantity ratio. This strengthens our confidence in equalization and our belief that judges applying the guidelines will be able to target the truly violent and dangerous drug traffickers who deserve severe punishment.
The need to change the guidelines and statutes for simple possession of crack cocaine is even clearer in terms of the unfairness of the current sentencing structure. No other drug is treated this harshly for mere possession.
These facts lead the Commission to the conclusion that fundamental fairness dictates that base crack cocaine sentences must be tied to those for powder cocaine sentences. These base sentences, which apply to all defendants, are strong and punitive. When combined with the applicable guideline enhancements, the amended sentencing scheme for cocaine offenses provides especially severe sentences for offenders involved in the violent criminal activity posing the greatest dangers to our society.
There should be no confusion: the guidelines punish harshly violent drug predators. The overall sentencing scheme, with strong base sentences and strong enhancements, clearly addresses the public, congressional, and Commission's overriding concern about violence, drive-by shootings, innocent victims, and the use of minors in drug crime. And it is fair, because it targets the worst offenders with the strongest sanctions.
III.
When the Commission began studying cocaine sentencing policy, it found that the picture of crack painted by the media bore little resemblance to the reality portrayed by scientific research on the subject. What the Commission learned was that there really is not much of a distinction, at least pharmacologically, between powder and crack cocaine, and that wherever crack is distributed, inevitably powder cocaine is somewhere nearby. After all, crack cocaine is actually powder cocaine converted through a very simple process. Experience suggests that most drug distributors traffic in multiple drugs, and that crack cocaine distributions frequently involve powder as well. To target crack cocaine for dramatically higher penalties ignores the reality of these polydrug distributions and the risks associated with the other drugs present in a "crack cocaine" distribution. On the other hand, the Commission has learned that the purveyors of crack cocaine have found a way to get the drug to the people on the lowest rungs of the economic ladder in our country and into the hands of children, because the drug is cheap and easy to use.
Commissioners voting in the majority were particularly struck by the words of police officers involved in fighting the drug "war" on a daily basis in the streets of our cities. They could see no reason to make a distinction between powder and crack cocaine - their words in effect were "they (the drugs) are all bad" and should all be prosecuted severely; however, the greater penalties in their view should go to offenders who traffic in larger quantities of powder cocaine as opposed to crack. This should come as no surprise: the basic theory in drug enforcement is to prosecute and seek punishment at the highest levels for offenders dealing in the greatest quantities.
The Commission has some sympathy for the concept that through sentencing the Government should try to protect those who have the least ability to protect themselves. But it is not clear that this protection is accomplished by punishing economically disadvantaged people more severely than their affluent counterparts for the same conduct. People who deal drugs should be punished severely. That is precisely what the sentencing guidelines do.
IV.
With respect to the Commission's recommendation regarding an appropriate cocaine sentencing policy, the record must be clear. While the Commission's recommendation to eliminate the distinction between powder and crack cocaine trafficking offenses flows from a 4-3 vote among commissioners, the Commission was not divided in its belief that the 100-to-1 quantity ratio is inappropriate. The Commission is united in unambiguously opposing the present ratio and recommending a dramatic reduction. In fact, the Commission consideration of an appropriate ratio generally revolved around a ratio between 1-to-1 and 5-to-1.
For those commissioners who voted with the majority, the issue was one of basic fairness and a deep conviction that Government must treat each citizen fairly. It is bad enough when individuals are unfair to one another, or when we punish each other too harshly, but when the Government is perceived as not being fair or punishes one segment of society more harshly than another for the same basic conduct, serious distrust results of the criminal justice system and the Government as a whole.
The Commission recognizes that cocaine is a tragic problem in this country. But it is as tragic in the boardrooms, offices, and suburbs of America as it is in the innercities. Because people in the upper echelons of society do not live in the troubled neighborhoods, they are not subject to the same enforcement or penalties as the poorer people in society.
In the course of our study, we were faced with clear evidence that crack cocaine penalties are imposed largely on African-Americans. Almost 90 percent of federal crack offenders are Black. This disproportionate impact creates a perception of unfairness and raises allegations of racial bias. Everyone concerned with the legitimacy of the criminal justice system - and with the willingness of all citizens to accept its judgments as fair and final - must be troubled by allegations of unfairness, particularly racial discrimination. Perceptions and allegations cannot be the basis for policy, however.
As a fundamental principle, the Commission is committed to criminal penalties that are racially neutral on their face and by design. Our conclusion, like that of courts that have considered the matter, is that there is no evidence that racial bias or animus motivated the current penalty differential. Furthermore, we believe that fairness is a matter of individuals - treating similarly persons who are similar in sentencing-relevant ways. It is not a matter of statistical group averages or percentages. If more persons of one group behave in ways that justify harsher treatment, then the Commission believes it is fair to treat those individuals more harshly, even if it results in a higher percentage of one group going to prison for longer periods of time.
At the same time, the Commission believes that our evaluation of the fairness of current penalties must go beyond ensuring that the rules are racially neutral. When a sentencing policy has a severe disproportionate impact on a minority group, it is important that sufficient bases exist for the policy. The law should not draw distinctions that single out some offenders for harsher punishment unless these distinctions are clearly related to a legitimate policy goal. For the reasons described above, we do not believe that a sufficient policy basis for the current penalty differential exists.
Congress was correct when it enacted the Sentencing Reform Act. It intended to create a sentencing guideline system that guarded against basic unfairness in criminal punishment. That basic intent is no less true with respect to the question of sentencing for cocaine offenses - that is, similar defendants convicted of similar offenses must be treated similarly.
V.
To prevent crime, the law must be respected. To achieve respect for the law, sentences must be strong and fair. The Commission is committed to fulfilling its unique and independent role in crime prevention by establishing sentencing guidelines that are both strong and fair. We believe the amended guidelines for cocaine offenses do just that.
VIEW OF COMMISSIONER TACHA
JOINED BY COMMISSIONERS GOLDSMITH AND CARNES,
DISSENTING, IN PART, FROM AMENDMENT FIVE
AND RELATED LEGISLATIVE RECOMMENDATION
We respectfully dissent and write separately to express our dismay that this question has been publicly framed by some as a racial issue. In our view, the sentencing issue turns on trying to craft a race-neutral sentencing policy that appropriately accounts for the societal harms associated with a particular crime. We deplore the socioeconomic factors associated with crack cocaine (as opposed to powder) that lead to different marketing patterns, different street-level dosages and prices, and the exploitation of vulnerable populations. We cannot, however, ignore the harms that are peculiarly associated with crack. The market, the dosages, the prices, and the means of distribution are elements of the drug's harm, and they cannot be discounted by simply saying that crack and powder cocaine are the same substance pharmacologically.
We joined in the Commission's Special Report to Congress: Cocaine and Federal Sentencing Policy, in which the Commission concluded, "the 100-to-1 quantity ratio that presently drives sentencing policy for cocaine trafficking offenses should be re-examined and revised." U.S. Sentencing Commission, Special Report to Congress: Cocaine and Federal Sentencing Policy 197 (Feb. 1995) [hereinafter Special Report]. We write separately on Amendment Five and the proposed legislation to equalize statutory mandatory minimum penalties for crack and powder cocaine offenses, however, because we cannot endorse the proposed one-to-one quantity ratio for distribution offenses. The reasons for retaining differential penalties for crack and powder cocaine distribution offenses, See infra, do not apply to possession offenses. Thus, we fully endorse equalization of sentences for crack and powder cocaine possession offenses. Sentencing crack distribution offenses identically to powder cocaine distribution offenses fails to account for the increased harms associated with crack. Moreover, adjusting crack distribution sentences downward to parallel powder cocaine sentences provides for penalties that are, in our opinion, often too low.
In the Special Report, the Commission concluded that an inference can be drawn that "crack cocaine poses greater harms to society than does powder cocaine." Special Report, supra note 1, at 195. At that time, the Commission stated that it may be possible to develop specific guideline enhancements to account for some or all of the increased harms associated with crack. Id. at 198-200. The Commission also indicated, however, that "[i]f guideline enhancements cannot sufficiently account for harms associated with crack, the guidelines can provide an increased ratio through the base offense level." Id. at xv.
The Commission has now completed its self-appointed task of developing guideline enhancements. While the Commission has proposed new enhancements that take into account the use of a firearm and a defendant's use of a juvenile in the offense, in addition to bodily injury departure language, the Commission has been unable to account fully for the increased harmfulness of crack through guideline enhancements. Thus, consistent with the Special Report, a differential quantity ratio is required.
In the Special Report, the Commission identified several dangers associated to a greater degree with crack than with powder cocaine. Most importantly, the Commission found that, based upon common route of administration, crack is more addictive than powder cocaine. Id. at vi, 24-28. Because smoking crack produces more intense physiological and psychotropic effects than snorting powder cocaine, the Commission found that the crack user is more vulnerable to binging and dependency than persons who snort powder cocaine. Id. at 28, 195. Moreover, although powder cocaine, if injected, is equally as addictive as crack, injection of powder cocaine does not pose the same danger to society as does crack. Indeed, over three times as many people smoke crack than inject powder cocaine. Id. at vi. This statistic confirms the common sense observation that a substance that can be smoked will always be inherently more appealing, particularly to first time users, than one which must be injected through a vein with a hypodermic needle.
Addictiveness, however, is but one of the harms associated to a greater degree with crack than with powder cocaine. Another significant danger of crack is that, because of its ease of manufacture and relatively low cost-per-dose, crack is more readily marketable than powder cocaine to a greater segment of the population. Id. at viii. That crack can be administered easily and sold cheaply has made it particularly appealing and accessible to the most vulnerable members of our society - i.e., the poor and the young. Id. at 195. Indeed, 12- to 17-year-olds choose crack over powder cocaine more than any other age group. Id. at 187. Additionally, more criminal activity, including violent crime, is associated with crack than with powder cocaine. Id. at viii. Crack is also accountable for more emergency room visits than powder cocaine, Id. at 184. Although our Special Report also found, based upon very limited data, that "most cocaine-related deaths result from injection of powder," id., this factor alone does not convince us that crack is less dangerous to society than powder cocaine. In comparing the relative harms of these two substances, we have considered a variety of factors, some of which may offset one another. In our view, the higher death rate associated with powder cocaine is one of the factors that justifies bringing crack and powder penalties more in line with each other. In other respects, however, the higher death rate from powder is outweighed by the multitude of increased harms occasioned by crack. and evidence suggests a high correlation between crack and a host of social harms including parental neglect, child and domestic abuse, and high risk sexual behaviors. See id. at 189-91.
The Commission was unable to account for all of these harms through guideline enhancements. Indeed, the proposed enhancements only address, to a limited extent, the systemic crime associated with crack. Thus, a one-to-one quantity ratio allows crack distributors to go virtually unpunished for the addictiveness, ease of use, marketability, and physical and social harms associated to a greater degree with crack than with powder cocaine. The majority asserts that under a one-to-one ratio, "crack offenders will receive sentences that are, on average, generally at least twice as long as powder cocaine offenders involved with the same amount of drug." Statement of Commission Majority in Support of Recommended Changes in Cocaine and Federal Sentencing Policy 3 (May 1, 1995) [hereinafter Commission Majority]. This difference reflects the fact that crack defendants are more likely to have extensive criminal histories and are more likely to use weapons than powder cocaine defendants. The difference does not, however, reflect the fact that crack offenders sell a substance that is far more dangerous than powder cocaine. We cannot support this result. Interestingly, in the Special Report, the Commission indicated that crack's addictiveness and ease of use alone could support heightened penalties for crack distributors. See id. at 183 ("the higher addictive qualities associated with crack combined with its inherent ease of use can support a higher ratio for crack over powder").
Moreover, a one-to-one quantity ratio at the powder cocaine penalty level provides for insufficient punishment of crack distributors. The sentence calculations in this paragraph are guideline sentences based solely upon drug quantity. They do not take into account the current statutory 100-to-1 quantity ratio which, for example, subjects a crack dealer who distributes fifty or more grams of crack to a mandatory ten-year sentence. For example, under a one-to-one quantity ratio, a criminal history category I mid-level dealer who distributes 100 grams of crack to other mid- or street-level dealers and pleads guilty, In 1994, over 75% of all crack defendants and over 80% of all powder cocaine defendants received sentence reductions for acceptance of responsibility. will face a guideline sentence of only eighteen to twenty-four months imprisonment. In addition, if the proposed one-to-one quantity ratio had been applied to federal crack defendants in 1994, over 73% would have been eligible for quantity-based sentences of less than five years imprisonment, and only 10% would have been subject to sentences of ten or more years. By comparison, under the 100-to-1 ratio, only 15% of federal crack defendants sentenced in 1994 were eligible for guidelines sentences of less than five years imprisonment, while 59% were eligible for sentences of ten or more years. Conversely, of the federal powder cocaine defendants sentenced in 1994, less than 19% were eligible for quantity-based sentences of less than five years imprisonment, and over 45% were subject to sentences of ten or more years. Indeed, under a one-to-one penalty scheme, crack distributors may be eligible for lesser sentences than similarly situated powder cocaine defendants. This is so because, based upon Commission data, crack traffickers who occupy roles similar to their equally culpable powder cocaine counterparts, distribute smaller quantities of drugs. See View of Commissioner Goldsmith Dissenting from Amendment Five 3-4 (May 1, 1995).
Furthermore, even if Congress retains the current 100-to-1 statutory ratio for purposes of mandatory minimum sentencing, the proposed one-to-one ratio still has the potential of dramatically decreasing sentences for some crack distributors. Under 5C1.2 ("the safety valve"), drug offenders meeting certain criteria are exempt from statutory mandatory minimums and are instead sentenced directly under the guidelines. In the legislation authorizing the Commission to promulgate a safety valve guideline, Congress indicated that the guideline "shall call for a guideline range in which the lowest term of imprisonment is at least 24 months." Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, 80001, 108 Stat. 1985, 1986 (1994) (emphasis added). But, under the proposed one-to-one ratio, many crack defendants who qualify for the safety valve will not, as Congress intended, receive guideline sentences of at least twenty-four months. Instead, all safety valve crack defendants who distribute less than 100 grams of crack (a quantity associated with more than 40 percent of federal crack defendants in 1994) will be eligible for prison terms of less than twenty-four months. In our opinion, this is contrary to both congressional intent and sound public policy.
The majority's rationale for a one-to-one quantity ratio appears to be that fairness dictates identical treatment of crack and powder cocaine defendants because crack and powder cocaine are pharmacologically the same drug. See Commission Majority, supra note 15, at 4-5. This is not the end of the inquiry, however. Penalties for drug offenses are not solely based on pharmacology. Instead, penalties are fashioned to account for the amount of societal harm attributable to a particular drug or form of drug. Indeed, providing varying penalties for different forms of the same drug based upon relative harmfulness is not unprecedented in the guidelines. See, e.g., U.S.S.G. 2D1.1(c) (assigning base offense levels for Methamphetamine, as compared to "Ice" [a different form of Methamphetamine] at a ten-to-one quantity ratio). We note that Methamphetamine bears a five-to-one ratio to powder cocaine and that "Ice" has a ten-to-one ratio to Methamphetamine, or a fifty-to-one ratio to powder. Thus, if a one-to-one ratio between powder and crack is adopted, crack will be punished at a ratio of fifty times less than "Ice."
Sentencing policy is not an exact science. It can only reflect our best judgment as to the appropriate sentences for particular criminal acts, taking into consideration the harms resulting from those acts and the related societal interests in deterrence and prevention. Regrettably, statistical evidence demonstrates that sentencing policy based on thoughtful, appropriate, and race-neutral factors may result in differing impacts on defendants according to race, socioeconomic group, and geographic area. These disparities in impact, however, cannot divert attention from our objective judgments about the underlying criminal activity and the attendant societal interests. In sum, because, as the Commission unanimously concluded in the Special Report, crack poses a greater threat to society than does powder cocaine, and because a one-to-one quantity ratio provides insufficient punishment for crack distributors, we respectfully dissent.
VIEW OF COMMISSIONER GOLDSMITH
DISSENTING, IN PART, FROM AMENDMENT FIVE
AND RELATED LEGISLATIVE RECOMMENDATION
I join in Commissioner Tacha's dissent, but write separately to underscore a few key points.
First, despite the Commission's divided vote over Amendment Five, which proposes to reduce the quantity ratio between powder and crack cocaine to one-to-one, our recent report to Congress unanimously rejected the pre-existing 100-to-1 quantity ratio between powder and crack cocaine. See U.S. Sentencing Commission, Special Report to the Congress: Cocaine and Federal Sentencing Policy xiv & 198 (Feb. 1995) [hereinafter Special Report]. Our present conflict notwithstanding, the entire Commission stands by its previous conclusion firmly rejecting the 100-to-1 ratio. Further, during our most recent amendment cycle, we voted unanimously to treat simple possession of crack commensurate with simple possession of powder cocaine. Thus, our 4-3 vote on the one-to-one quantity ratio arises within a broader context of consensus concerning many aspects of federal sentencing policy for cocaine.
Our Special Report found that "[r]esearch and public policy may support somewhat higher penalties for crack versus powder cocaine, but a 100-to-1 quantity ratio cannot be recommended." Id. at xiv. Thus, the present dispute concerns which quantity ratio ought to replace the discredited 100-to-1 standard. Rather than make specific recommendations, the Commission's Special Report proposed to arrive at an appropriate penalty scheme within the guideline system. On this basis, we hoped to reflect the enhanced dangers associated with crack cocaine by:
develop[ing] appropriately weighted guideline enhancements (i.e., specific offense characteristics, general adjustments, offender characteristics) corresponding to important offense and offender characteristics present in crack cases that justify higher sentences. Id. at xv.
Accordingly, the Commission set out to identify pertinent characteristics typically associated with crack cocaine, and adopted, by a 6-1 vote, In dissenting, Commissioner Mazzone stated that the enhancements "make sense," but he indicated his reluctance to vote in favor of them prior to the Commission's resolution of the crack-powder cocaine ratio issue. Presumably, in light of Commissioner Mazzone's vote with the Commission majority on the one-to-one ratio, he would now vote in favor of these enhancements. appropriate enhancements reflecting such harms (i.e., specific offense characteristics for possession and use of a firearm, a Chapter 3 adjustment for use of a minor in the offense, and bodily injury departure language). Thus, the Commission's present division reflects disagreement over whether these enhancements adequately capture the differences between crack and powder cocaine to warrant a one-to-one ratio as a starting point for sentencing under the guidelines.
I dissent from the majority position because the Commission's new enhancements do not account for all of the systemic harms uniquely associated with crack cocaine. For example, the evidence shows that, given common routes of administration, crack is potentially much more addictive than powder cocaine. Id. at 24-28. However, this aggravating danger cannot be integrated into the guidelines simply as a separate enhancement factor. Similarly, crack cocaine poses special risks to minors, Id. at 195. and to pregnant women. Id. at 189-90. More specifically, the immediate risk is to the fetus. These risks, however, exist even if a sale occurs to someone other than such vulnerable victims. Under most circumstances typical of the crack market, eventual usage by minors or pregnant women is readily foreseeable even if the immediate case (or the defendant's relevant conduct) does not involve such participants.
Since such systemic risks cannot be captured by guideline enhancements standing alone, we must find some other way to weigh these factors in determining punishment. The Commission's Special Report contemplated this possibility. In pertinent part, we stated:
[I]f 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. Id. at 200.
Given the inherent limitations of a sentencing scheme based only on quantity and a few potential enhancements, a guideline base offense differential between crack and powder cocaine may be warranted for at least some quantity levels. For example, for low level street dealers, a one-to-one quantity ratio might be suitable when combined with the Commission's newly proposed enhancements. To the degree that the resulting framework decreases federal penalties for street level sales, state criminal justice systems may compensate by choosing to impose more severe penalties under state law. No reason exists to inundate our federal courts and penitentiaries with low-level crack violators. By comparison, as Commissioner Tacha's dissenting opinion establishes a one-to-one ratio - even with enhancements - fails to achieve appropriate incarceration for the more serious, mid-level crack dealers. Given the problems occasioned by establishing artificial "cliffs" within a sentencing scheme (i.e., quantity levels at which crack is sentenced more harshly than powder cocaine), this proposal requires careful consideration. If a sentencing cliff is deemed too problematic, we must arrive at a consistent quantity ratio that appropriately distinguishes crack and powder dealers at all quantity levels. In my view, a ratio range between four-to-one and ten-to-one would be most appropriate.
This failure occurs because the one-to-one ratio disregards important organizational and market factors that distinguish crack and powder cocaine. The presence of these factors often means that comparable quantities of powder and crack do not necessarily correlate with culpability. For example, given the way that crack is marketed, a person convicted of selling 100 grams may often be characterized as a mid-level dealer (i.e., someone who provides the drug to street level retailers). See U.S. Sentencing Commission, Implementation of Crack Report Recommendations 2 (Amendment Packet, March 24, 1995) By comparison, 100 grams of powder is rarely suggestive of a mid-level powder dealer. Rather, 100 grams of powder usually typifies a low-level retailer; 500 grams is more indicative of a mid-level dealer (i.e., someone who supplies the street sales retailer). See Special Report, supra note 1, at 118-21 (emphasizing that Congress selected five-year mandatory minimum quantities, which include 500 grams for powder distributors, as representative of quantities associated with serious or mid-level traffickers). Thus, for punishment purposes, a defendant convicted of selling 500 grams of powder (i.e., a mid-level dealer) is roughly comparable to a person guilty of selling 100 grams of crack (i.e., also a mid-level dealer.)
This analysis suggests that a five-to-one quantity ratio between powder and crack more accurately reflects the realities of two distinct drug trades. If anything, Commission data suggests that mid-level powder cocaine distributors generally deal in quantities ranging between 2,000 and 3,500 grams. See Implementation of Crack Report Recommendation, supra, note 10, at 2; U.S. Sentencing Commission, Comparison of Drug Quantity Levels for Mid-Level Crack and Cocaine Dealers (Working Document in Response to Commissioner's Request)(March 1995). Moreover, the Drug Enforcement Administration assigns the same priority level to crack dealers distributing 50 grams and powder dealers distributing 1,000 grams. Therefore, a ratio of higher than five-to-one may appropriately reflect the market differences between crack and powder cocaine. A five-to-one quantity ratio is also consistent with the manner in which the law distinguishes between powder cocaine and heroin. Ordinarily, for example, 5 units of powder cocaine are punished as severely as one unit of heroin. See U.S.S.G. 2D1.1(c). Of course, further research may be required to arrive at an appropriate ratio between powder and crack cocaine, and I do not contend that five-to-one is necessarily the right outcome. Reasonable arguments can certainly support a ratio as high as ten-to-one. I merely suggest that, given the many distinct differences between powder and crack cocaine, a five-to-one ratio may be a good starting point for analysis.
Finally, I concur with Commissioner Tacha's concern that this issue has been unduly framed in racial terms by some constituency groups. No persuasive evidence exists that federal sentencing policy in this area is based on discriminatory considerations. Nor does the record demonstrate that African-American crack dealers are treated more severely than Caucasian crack dealers. On the contrary, our Special Report found that "[c]learly the penalties (both statutory and guideline-based) apply equally to similar defendants regardless of race." Special Report, supra note 1, at 156. The Special Report also found that the 100-to-1 quantity ratio affected a disproportionate number of African-American defendants. Special Report, supra note 1, at 156. However, this result reflects the reality of the crack trade, which has been dominated by African-American retailers who, in turn, have devastated many inner-city, economically disadvantaged African-American communities throughout the country. Furthermore, a federal law is not unconstitutionally discriminatory so long as it is applied equally to all persons who violate it. By analogy, the federal RICO statute was first applied to established organized crime groups dominated by persons of Sicilian descent. This application, however, reflected the reality of organized crime in America at that time rather than any improper discriminatory purpose. Moreover, RICO has since been applied to other violators across ethnic and racial lines. This same principle governs federal narcotics laws, which apply even-handedly to all violators.
For these reasons, I dissent from the majority's vote to reduce the quantity ratio between powder and crack cocaine to one-to-one. The Commission properly rejected the 100-to-1 ratio as too extreme. By suggesting that a one-to-one ratio is appropriate, however, the Commission proposes returning to the other extreme. I suggest a more appropriate course based on the policy and market differences between crack and powder cocaine rather than on a formula - misleading in its simplicity - that overlooks the realities of the drug trade.
United States Sentencing Commission