I. TESTIMONY OF RICHARD P. CONABOY, CHAIRMAN
II. TESTIMONY OF WAYNE A. BUDD
III. TESTIMONY OF THE HONORABLE DEANELL REECE TACHA
IV. TESTIMONY OF MICHAEL GOLDSMITH
Mr. Chairman, members of the subcommittee: it is an honor for me to be here today before your committee representing the United States Sentencing Commission. With me is Commissioner Wayne Budd, a former United States Attorney in the Reagan and Bush administrations and former Associate Attorney General in the Bush Justice Department. Also with me is Judge Deanell Tacha, a member of our Commission, a former law school dean, and a judge on the 10th Circuit Court of Appeals. We very much appreciate the opportunity to address the committee on the Commission's guideline amendments and legislative recommendations concerning cocaine and federal sentencing policy and procedures. There has been considerable confusion and misinformation about the Commission's recent actions, and we are pleased to have the chance to discuss with you what we have done and recommended. We hope to clear up any confusion and also to answer any questions you may have.
As you know, the Sentencing Commission was created in 1984 as an independent and expert agency to review, change, and rationalize federal sentencing policy. The issue that we are here to discuss today is precisely the type of issue that the Commission was created to address. It is an issue that touches on the most basic concerns about crime and violence in our society; concerns that demand strong, tough, and intelligent crime control measures. But it is also an issue that raises very difficult questions about race and about fairness. It is this type of complex, multi-dimensional issue that requires the expertise Congress was looking for when it created the Commission. And it is why Congress, as part of the Violent Crime Control and Law Enforcement Act of 1994, directed the Commission to study cocaine sentencing policy and to provide recommendations for changes in the policy.
Let me assure you that we have studied this issue. We have studied it from every conceivable angle and for many, many, many months. After all the research, after all of the long and sometimes painful discussions, the Commission unanimously concluded that the current sentencing scheme for cocaine offenses could no longer be justified. This conclusion, and the facts that underlie it, are documented in the Commission's 200-plus page exhaustive report which we submitted to Congress in February.
Before I discuss the report and the Commission's subsequent actions, it is important to lay out the context that underlies this issue. The federal criminal docket is now dominated by drug crime. As you can see graphically in the chart now being displayed, the proportion of drug crimes has increased dramatically over the past decade. In 1984, 49,842 criminal cases were prosecuted in the federal courts of which 10,094, or 20 percent, were drug crimes. Of those drug cases, 4,278, or 42 percent, involved cocaine. Crack cocaine had not become readily available in 1984 and thus few if any crack cocaine cases were prosecuted federally at that time. By contrast, in 1994, 39,919 criminal cases were prosecuted in the federal courts, of which 16,700 were drug crimes. Of these drug crimes, 8,646 or 52 percent involved cocaine. Forty-one percent of the cocaine cases involved crack cocaine.
Similarly, it must be recognized early on that average sentences served by drug offenders generally, and cocaine offenders specifically, have increased dramatically over the last 20 years. As this next graph demonstrates, drug offenders now serve four and a half times as long in prison as offenders in 1970. The point of all of these charts and numbers is that drug cases are being prosecuted in large numbers at the federal level and that drug offenders are being sentenced to long sentences. The current sentencing guidelines provide for severe and tough sentences for all drug offenses. The Commission strongly agrees that drug crimes should be prosecuted and that drug offenders should be punished severely.
However, in its extensive review of cocaine sentencing policy, the Commission was troubled by the current sentencing rules that provide disproportionately severe penalties for those convicted of trafficking in crack cocaine - penalties that are significantly higher than those for similar trafficking in powder cocaine. We were equally troubled by the fact that these penalties have great disproportionate impact on the poor and minorities in our communities. If one sells 5 grams of crack, for example, the current law provides for a minimum five-year sentence. Someone selling cocaine powder would have to sell 500 grams to receive the same five-year penalty. It is this quantity difference - what most people refer to simply as the 100-to-1 quantity ratio - that the Commission found to be unjustified. It is true, as some will point out, that the "crack problem" is more severe in poor, predominately black neighborhoods, and that enhanced enforcement is meant to help those who live in such areas. But inflicting enhanced punishment on a specific segment of society under this guise is fallacious and misguided.
I will address the reasons for our conclusions in a moment, I want to take just a minute or so to talk about the members of the Commission. Our members come from different parts of the country and from diverse backgrounds. We have on our Commission former prosecutors, defense attorneys, a law professor, trial judges, an appellate judge who is a former law school dean, and a former counsel to the Senate Judiciary Committee. It is an extraordinary group of hard working and thoughtful people. We have all worked very hard on this issue, and I want to stress first the Commission's unanimity. We all agreed on the conclusions contained in our report to Congress as well as the facts that form the bases of the conclusions. And while we certainly differ on parts of our final specific recommendations, our differences are relatively small.
Mr. Chairman, the Commission's primary conclusion on the issue of federal cocaine sentencing policy is that the 100-to-1 ratio can no longer be justified and that base sentences for similar quantity crack and powder offenders should be equalized. Let me repeat myself on that last point - we concluded that base sentences - not the final sentences - should be equalized. These base sentences, which apply to all offenders violent and non-violent, kingpin and courier, are enhanced by other provisions in the guidelines before arriving at a final sentence for an individual offender. Under the revised sentencing system which we submitted on May 1, for the kingpin or for the offender who possesses a gun or uses children to commit a crime or is involved with gangs or drive-by shootings, the base sentences are raised dramatically. This year, as part of the amendment process, the Commission added several new enhancements that would directly raise penalties for dangerous crack offenders. Together with already existing enhancements, base sentences will be raised for a long list of aggravating factors associated with crack and powder offenders - but more so for crack offenders. Some of these aggravating factors are listed on the chart now being displayed. They include:
possession, use, or discharge of a dangerous weapon possession of a restricted firearm, e.g., machine gun murder of a victim in the course of a drug crime death or serious bodily injury resulting from the use of the drug drive-by shootings involvement of juveniles or street gangs sale of drugs to juveniles or pregnant women drug crime in a protected location significant prior criminal records continuing criminal enterprise and many others.
Under the amended sentencing policy, including base sentences and enhancements, sentences for crack cocaine offenders would probably remain significantly higher than sentences for powder offenders. The Commissioners who disagreed with the decision on equalizing base sentences were concerned that the enhancements might not capture all of the harms associated with crack as noted in our report. However, to reiterate that the differences on the Commission were small, you should be aware that the Commissioners who dissented from our recommendation did not seriously discuss any ratio greater than 5-to-1.
The Commission majority arrived at the policy of equally severe base sentences joined with significant penalty enhancements for aggravating conduct because of certain undeniable facts. First, both crack cocaine and powder cocaine are very dangerous drugs. The Commission found, however that crack cocaine is associated with even greater dangers than powder cocaine. Of greatest concern to the Commission was the random, predatory violence, as well as the use of children in drug trafficking, that seems to accompany the introduction of crack cocaine into a community. Second, despite these dangers, not all persons convicted of trafficking crack cocaine deserve equally severe punishment. The Congress created the Commission and the sentencing guidelines for the explicit reason of providing different sentences for offenders of different culpabilities. A woman who allows her home to be used by a crack dealer to store a small amount of drugs is not as culpable and should not be imprisoned as long as the gang dealer who stalks and terrorizes a neighborhood or who gets kids involved in drugs. Congress embraced proportional sentencing when it wrote the Sentencing Reform Act and the Commission today strongly believes in it. Because the 100-to-1 quantity ratio predates the sentencing guidelines, it understandably does not target the most severe sentences and our valuable and scarce prison resources toward those violent offenders. Now that the guidelines are in place prison resources and the most severe sentences can be targeted at the violent offenders. To do so, we believe, is good, smart public policy.
Third, virtually all cocaine imported into the United States arrives as powder cocaine. Only in the final stages of distribution, at the local level, is some of that powder transformed into crack. This is vitally important because any sentencing system that provides higher base penalties for crack cocaine will lead to the unfair and unwise result that more sophisticated, higher-level powder suppliers will be sentenced relatively less severely than some of the retailers they supply. For example, under the current 100-to-1 quantity ratio, a drug dealer who sells 100 grams of powder cocaine in 10 gram amounts to a series of small time crack dealers would likely be sentenced to significantly less time in prison than any one of those street dealers. This is true despite the simple process of transforming the powder into crack and despite the fact that the supplier introduced the powder that made the crack possible. In setting national drug policy, Congress has repeatedly underscored the unique federal responsibility of disrupting major trafficking operations. The need for federal enforcement focus on major operations was reiterated recently in congressional testimony by William Bennett, the former Bush Administration drug policy director. The current drug czar, Dr. Lee Brown, in a letter to the Commission also stated that the federal enforcement priority today remains on large scale drug operations. Use of the 100-to-1 quantity ratio turns this long-held federal drug enforcement focus on its head.
One other point in this vein. Recently, several Commissioners visited with a special drug task force in the Atlanta Police Department. These are the officers that are on the front lines and directly see the effects of crack cocaine. To a man, all of the officers said that they thought the focus needed to be on the powder suppliers. They believe that getting the powder cocaine dealers off the street will do more to reduce crack trafficking than targeting crack dealers with such hefty penalties.
Fourth, injecting powder cocaine is as dangerous or more dangerous than smoking crack. Therefore, even though smoking crack can be more addictive than snorting powder, the form of the drug is simply not a reasonable proxy for dangerousness associated with use especially in light of the fact that crack cocaine can be so easily produced from powder cocaine. Put another way, because powder cocaine can be as dangerous as crack and is so easily transformed into crack, it is not good policy to punish crack offenses at disproportionately high levels relative to powder offenses.
Fifth, because there is such a clear impact of these high penalties on minority defendants, the policy - the 100-to-1 quantity ratio - leads directly to a very very strong perception of unfairness. Crack is cheap and thus distributed and attractive to the poor - many of whom are minorities. With the 100-to-1 ratio, we have unintentionally developed the anomaly of punishing the poor and minorities more severely under the guise of trying to protect them.
There are many other reasons for our conclusions and recommendations regarding cocaine sentencing policy which are spelled out in depth in our report to Congress. I would ask that the report be made a part of the permanent record of this hearing.
Mr. Chairman, in concluding, I must speak somewhat more personally. I am not only the head of the United States Sentencing Commission, I am also a father of 12 and a grandfather of 46. I have been a trial judge in the state and federal courts for more than 30 years. During that time, I have seen up close the enormous devastation that drugs have wrought on American society. My grandchildren, like your children, have to live in this society and I cannot express to you how much I am concerned for them. We need to send a strong message about our unwavering intolerance to drug use and drug trafficking. But being strong and tough is not enough. We must be smart and we must be fair. Our country cannot afford, literally and figuratively, to simply warehouse the thousands of mostly young people who have been brought or found their way into the evil and destructive world of drugs. We must put the violent offenders in prison for long periods of time. No question. But sending an 18 year old to federal prison for twenty years for selling a handful of crack while his powder supplier, or for that matter a violent state felon, is free in a much shorter time is simply bad policy and a waste of our precious resources. It is also unfair and unjust.
When there is any injustice, we must be vigilant in our efforts to remedy it. But when government policy is unfair, or even when government policy is perceived to be unfair, our vigilance must be even greater. Long ago, Mr. Justice Brandeis compared our government to a teacher. "For good or for ill," he said, the government "teaches the whole people by its example." If the government is seen as unfair or unjust, it breeds contempt for the law. Our recent history bears this out.
Mr. Chairman, crack is a horrible thing. All drugs are horrible. We punish all drug trafficking severely. But punishing crack more harshly because it is the drug of the poor neighborhoods - like the cheap wine of those same neighborhoods - we believe is wrong. We at the Commission are committed to policies we think are strong, smart, and fair. We believe our recommendations are in that vein.
I thank you again for giving me the opportunity to be here. I would be happy to respond to any questions that the committee might have.
II. TESTIMONY OF WAYNE A. BUDD
UNITED STATES SENTENCING COMMISSION,
BEFORE THE SUBCOMMITTEE ON CRIME
OF THE HOUSE OF REPRESENTATIVES'
COMMITTEE ON THE JUDICIARY
June 29, 1995
Mr. Chairman, members of the subcommittee: it is a pleasure for me to be here today with my colleague and friend Commissioner Tacha. Under the strong leadership of our Chairman, Judge Conaboy, the Sentencing Commission has firmly confronted the difficult issue of cocaine sentencing policy. It is an issue that has been picked at by so many. Because it raises trying questions of crime, fear, race, and fairness, no matter what position one takes on the issue, it is easy for critics to snipe at one aspect of that position or another. In coming up with its recommendations, the Commission has followed an open and careful approach. We have consulted widely with members of Congress, the Justice Department, other law enforcement agencies, and a variety of interested groups. We have found that almost everybody in a position of political authority is reluctant to take a position on the issue. The reluctance is understandable. Even though almost everyone believes, in the carefully crafted words of the Justice Department "that an adjustment in the current penalty structure may be appropriate," there is a pervasive fear that if you call for change that lowers a criminal sentence for anyone, let alone for a drug criminal, you will be excoriated for being "soft on crime" or for "sending the wrong message on crime." But every once in a while, the proper public policy demands an adjustment and demands the leadership to push for change, because irrational and unfair sentencing policies also send a message. More than a decade ago in the Sentencing Reform Act of 1984, Congress created the Sentencing Commission to eliminate irrational and unfair policies that breed disrespect for the law. Then, in the 1994 Crime Bill, Congress specifically directed the Commission to tackle the cocaine issue. Led by Chairman Conaboy, the Commission did what it was asked to do: face head-on this type of political hot potato and provide the dispassionate, non-partisan leadership on the basis of hard facts and hard data.
As the Chairman stated, I was appointed United States Attorney for the District of Massachusetts by President Bush in 1989, and subsequently in 1992, he appointed me Associate Attorney General of the United States. My first priority and my primary focus as a prosecutor was drug crime. I know firsthand the destruction that drugs bring on a community. After I was sworn in as United States Attorney, I visited with community leaders, with clergy, and with social activists from around Massachusetts. They told me about the seemingly endless problems of drugs and violence in their inner city communities and they asked for federal law enforcement resources to combat these problems. They told me in particular about the devastating effects drugs have on the minority community, and we discussed the devastation that comes with crack cocaine. As a result of my meetings, my own experience, and my commitment to strong law enforcement, we in Massachusetts created a federal/state/local drug task force, an unprecedented undertaking at the time. Since its creation, that task force has brought to justice some of the biggest drug dealers in New England. And if you have any questions about whether I believe in harsh sentences for drug criminals, just ask those drug dealers. Some of the major traffickers we prosecuted are in prison for life. And that's the way it ought to be. It should be very clear that I'm all for dealing harshly with major drug traffickers.
But just as I am devoted to strong law enforcement, I am also committed to parity, fairness, and consistency in federal sentencing practices. This is the guiding philosophy of the sentencing guidelines, and it is why I was honored to take a position on the Sentencing Commission late last year. As an attorney who has practiced for many years in the Massachusetts courts as well as in the federal system, I know that parity isn't always achieved. I'm concerned that many times judges are inclined to give a break to defendants who look more sympathetic or who share with them a similar ethnic, racial, cultural, or economic background. That simply has been my experience in some cases. Likewise, there are instances when prosecutorial charging decisions and sentencing recommendations often result in uneven treatment for minorities, perhaps for some of the same reasons.
On the issue of cocaine sentencing policy, while the Commission found no racially motivated intent in the creation of the 100-to-1 quantity ratio, there can be no doubt that the higher penalties for crack offenders fall disproportionately on minority defendants. We have prepared some graphs that illustrate this disparate impact. As you can see on the chart now being displayed, better than 90 percent of all crack cocaine offenders sentenced in federal court - and let me emphasize federal court - in 1994 were Black; six percent were Hispanic, and four percent were White. These numbers are even more startling when you take into consideration that surveys show that the majority of crack users are White. Now compare these numbers with the percentage of powder cocaine defendants. Thirty percent of the powder cocaine defendants were Black, 43 percent Hispanic, and 27 percent White.
The depth of the adverse impact becomes that much more evident when you consider that on many, many occasions, there is discretion in law enforcement as to whether to take cases to the state courts, where crack and powder penalties are almost invariably less severe and hardly ever with a quantity ratio, or to the federal courts where crack penalties are staggeringly more steep. While Congress attempted to frame a national policy that would be applied uniformly across the country in all similar drug cases, the Commission's research suggests that uniform application is not occurring. The present record shows vast and surprising differences in prosecution practices. Many rural federal districts, like the Central District of Illinois, have experienced a considerably higher proportion of federal crack cocaine convictions than largely urban districts, like the Chicago-driven Northern District of Illinois. A similar example can be found in the Eastern District of New York which includes Brooklyn. This district reports a much lower number of federal crack sentencings than Northern and Southern West Virginia - where the population is a fraction of the size of Brooklyn's. This is so even though, according to New York City Police Department data, 45.8 percent of all drug arrests in recent years were crack cocaine related.
The adverse impact and disparate prosecution practices, however, do not tell the whole story. The Commission's study of cocaine sentencing policy examined the pharmacology of cocaine, the way it is used and marketed, the violence associated with its use and marketing, as well as the enforcement priorities surrounding cocaine. We looked hard for a justification for the 100-to-1 quantity ratio, and found, unanimously, that there was no empirical or policy justification for it. The point of all this is that the 100-to-1 quantity ratio is simply unfair and unwarranted. The Commission unanimously found this to be the case. The gross unfairness may not have been intended at the time the ratio was created, but it certainly has worked out that way in practice.
That having been said, I must reiterate something Chairman Conaboy stated. The Commission found, and it is firmly stated in our report, that there are certain offense and offender characteristics that apply more often to crack offenders as opposed to powder offenders and which should result in a punishment differential. But in determining the base sentences to which we will add the enhancements, we all must remember that crack cocaine and powder cocaine are derived from the same drug. And we must remember that without powder cocaine, we would not have crack - crack is prepared by simply cooking powder with baking soda and water. It does not take great skill to prepare it, and the conversion is most often done at the lowest rungs of the distribution chain. The result is that the people being prosecuted for crack cocaine offenses are most often low-level street dealers who buy powder cocaine and cook the crack themselves. The policy of punishing these offenders with sentences hugely disproportionate to those for their suppliers runs counter to the usual law enforcement policy of seeking higher penalties for those who organize and lead drug rings and who typically are responsible for bringing greater quantities of illegal substances into our communities.
One of the most troubling aspects of the disproportionately high penalties for crack cocaine for me as a former prosecutor is the preponderance of multiple drugs in drug trafficking organizations, especially those involving crack. I don't believe we ever prosecuted a crack case that didn't have powder somewhere up the chain of command. Too often the street-level crack cocaine dealers receive much harsher penalties than the higher-level distributors who sell powder for conversion into crack.
Also, under the current sentencing rules, the fortuity of when and how law enforcement officials catch these poly-drug dealers largely determines the final sentence. For example, the Commission recently received a call from an Assistant United States Attorney who wished to discuss a guideline application issue arising in a case he had been investigating for some time. During the considerable time the defendant in the case was under surveillance, he sold a total of 700 grams of powder cocaine. In preparing a charging document and a strategy for the case, the Assistant had good reason to believe that the defendant was a mid-level dealer who deserved at least the five-year sentence mandated by the Congress and required under the guidelines. When the defendant was arrested, the agents seized an additional 70 grams of cocaine. One would think this 10 percent increase in cocaine quantity would not substantially change the culpability of the defendant or his sentence. However, the 70 grams of cocaine happened to be in the crack form. Under current sentencing law, 70 grams of crack results in a mandatory minimum ten-year sentence, and the 700 grams of powder becomes largely irrelevant to the punishment. It simply doesn't make sense.
Or consider the case of Remard Leon Cherry whose appeal was recently decided by the Fifth Circuit. (See, 50 F.3d 338 (5th Cir. 1995)). Upon his arrest, Mr. Cherry voluntarily consented to a search of his Houston apartment in which police discovered 135 grams of crack and 4.5 kilos of powder cocaine. Mr. Cherry had been described to police by an informant as a regular supplier of crack cocaine in the Houston area for at least the past two and a half years. Under the current legal regime, the drug offense portion of Mr. Cherry's sentence, 166 months, was driven almost entirely by the amount of crack found in the apartment at the time of the search. Had the arrest and search occurred at a time when none of the cocaine had been converted into crack, Mr. Cherry would have been subject to only a five-year mandatory minimum under the statute (although the guidelines would have called for a sentence in the range of 97-121 months). On the other hand, had all of the cocaine been converted to crack, Cherry would have faced the same mandatory minimum of ten years but a higher guideline range of 235-293 months. The point is, under the current sentencing rules, the sentence of the defendant who deals in both crack and powder, or the defendant who converts his supply of powder into crack a little at a time, may vary by many years based solely on the timing of the arrest.
The Commission's proposed guideline amendment, which equates base sentences for crack and powder cocaine offenders while at the same time providing appropriate enhancements for case-specific harms, will eliminate this anomaly. It is a sentencing system that targets both the predatory street offender and the large scale trafficker and yet restores fundamental fairness to sentencing law. It is true that our report found that crack is associated with greater dangers than powder cocaine. And the Commission has addressed these greater dangers with specific aggravating factors. As Chairman Conaboy stated earlier, under the amended sentencing policy, taking into account both base sentences and enhancements, average sentences for crack cocaine offenders will still remain significantly higher than sentences for powder offenders. Let me illustrate. The chart now being displayed shows how crack and powder offenders will be sentenced under the revised system. Because certain specific harms are more commonly associated with crack cocaine than powder cocaine, at all quantity levels, crack offenders on average will receive significantly greater sentences than powder offenders. When a firearm is present in a cocaine offense, when a defendant uses a juvenile in a cocaine crime, when a gang is involved, the guidelines provide for stiff sentences regardless of whether it is crack or powder cocaine or for that matter any other drug.
There has been some suggestion that rather than making the adjustment recommended, the Commission should simply have raised the powder cocaine penalties to the crack cocaine levels. While at first blush this may sound appealing, there are several serious problems with such a proposal. First, cocaine sentences are now quite harsh, and at the current levels, we are incarcerating increasing numbers of defendants for increasingly longer periods of time. We have received no serious complaints from Congress, law enforcement, or others that these levels are too soft. Second, with the exception of crack cocaine, sentencing levels for different drugs were created under a comprehensive plan to attack mid-level and upper-level dealers. The legislative history of the 1986 Anti-Drug Abuse Act makes that clear. Commission research shows that, with the exception of crack cocaine, presently this system is working fairly well. With crack, however, the most typical federal defendant is a street-level dealer. These defendants are receiving sentences comparable to mid-level and the most serious powder dealers. Raising penalties for powder cocaine could distort this sensible structure and result in application of the mandatory minimums to defendants at lower culpability levels.
Finally, the system is currently designed so that heroin dealers are sentenced higher than cocaine dealers who in turn are sentenced higher than marijuana dealers. That is, more serious drugs are sentenced higher than less serious drugs. Currently, heroin is punished at a 5-to-1 quantity ratio to powder cocaine while crack is punished at a much more severe 100-to-1 ratio to powder. If Congress were to raise powder penalties to the crack levels, cocaine offenses would be sentenced more severely than those involving heroin, PCP, or methamphetamine, all of which are considered to be equally serious or more serious drugs. Finally, raising powder penalties to the crack levels would greatly increase the federal prison population and would require substantial new prison resources at a time when drugs are the largest part of the federal criminal docket and cocaine offenses are by far the most frequently prosecuted type of drug case.
In closing, I want to speak personally about this issue. I am the son of a police captain and have spent my professional life as a lawyer and as an officer of the court. I believe in public service, and despite what the polls tell us about the current distaste for government, I believe in the virtues of public life. I have spent a lifetime trying to live up to these virtues. There have been several events that have challenged and defined my commitment to these virtues. For me, one of those moments came when as United States Attorney I prosecuted Darrell Whiting, a notoriously vicious drug dealer who preyed on the inner city community in Boston. I think our work on that prosecution helped to make the community a little safer and helped me to fulfill the challenge of public service. To me, this issue today presents another one of these defining moments. It may not be as dramatic; it may not make for great theater; but I believe it is just as important. If we are going to do our jobs properly, we must question why over 90 percent of crack offenders are Black and why this group of offenders are all receiving disproportionately high sentences. We must get to some real answers. And if the answers we find are unsatisfactory, we must be a driving force to make the necessary changes in order to achieve parity, fairness, and consistency. We cannot simply sit back and say "this isn't the right time," or "it's too risky to make a change." The legislation proposed by the Department of Justice, which keeps in place the status quo, is plainly and simply the wrong answer. In light of the Department's own statements that the current policy is wrong, its legislative proposal is neither responsive nor responsible. At the Commission, we have stepped up to the plate, and we have taken a position on responsible changes. I strongly urge this Committee and the Congress to do the same.
I thank you again for giving me the chance to testify before you this morning. I would be happy to respond to any questions.
Mr. Chairman, members of the Committee, thank you for the opportunity to present my views on the Sentencing Commission's proposal to equalize sentences for crack and powder cocaine defendants. Let me start today by expressing my utmost respect and admiration for the work of Chairman Conaboy, Commissioner Budd, the other Commissioners, and the Sentencing Commission staff on this very difficult issue. Let me also acknowledge my agreement with Chairman Conaboy that the similarities between the majority and the dissent on this issue are much greater than our differences. As I stated in my dissent, I wholeheartedly support the Commission's Special Report to Congress: Cocaine and Federal Sentencing Policy, including its conclusion that the 100 to 1 quantity ratio that currently drives cocaine trafficking sentencing policy cannot be justified. I also fully endorse the Commission's recommended equalization of sentences for crack and powder cocaine possession offenses. The point at which I must respectfully disagree with the majority, however, is the majority's conclusion that equalization of sentences for cocaine and crack distribution offenses is the solution.
Since its advent in this country, crack cocaine has been associated with greater harms than has powder cocaine. Expert testimony presented to Congress, every circuit court decision to address the issue, drug users themselves, and the Sentencing Commission's Special Report - the product of over two years of study - are all in agreement: crack cocaine is a more dangerous substance than cocaine powder. Crack poses a more acute danger chiefly due to its inherent addictiveness and its ready accessibility to large segments of our society.
While pharmacologically the same, crack is a more addictive substance than powder cocaine. Because crack is smoked, it has quicker and more intense physiological and psychotropic effects on the user than does the snorting of powder cocaine. This intense "high" that comes from smoking crack is short-lived, however, thus creating a craving for more and more of the drug. Indeed, the crack user is more vulnerable to binging and dependency than persons who snort powder cocaine. Moreover, while a user may be able to achieve a similar effect by injecting powder cocaine, these intense effects are more common amongst crack users because only a few are willing to inject cocaine into their arms through a needle.
While clearly supported by the formal data and research, one really need look no further than to drug users themselves to observe the increased addictiveness and potency of crack. Recently, a Judge colleague of mine sent me transcripts of two sentencing hearings involving crack cocaine offenders. In both cases, despite histories of powder cocaine use, the college-educated defendants were productive members of society. All of that changed, however, when the defendants began using crack. As one defendant reiterated to the Judge, he and many of his friends had snorted powder cocaine infrequently over several years without the drug significantly affecting their lives. In contrast, reviewing his own experience as well as the experiences of the numerous individuals the defendant knew who had tried smoking crack, the defendant was aware of only one individual who had not become addicted to crack after smoking the drug and whose life had not been devastated by its use.
Crack cocaine also poses a greater harm to society than does powder cocaine because of the manner in which crack is marketed. Crack is easily manufactured and is sold in smaller quantities and at lower unit prices than powder cocaine. While cocaine powder is traditionally sold by the gram for $65-$100 per gram, crack is typically sold by the dose (1/10-1/2 gram) for as little as $5.00 per dose. The availability of crack has reduced the financial burden that previously limited cocaine usage in this country to the relatively affluent. Most distressingly, the cheap price of crack has allowed children to afford cocaine, exposing the most vulnerable segment of our society to another potent, addictive drug.
Dr. Robert Byck, M.D., described the crack market as he saw it in 1986:
[W]hat we have here is the fast food solution. It is not that McDonald's hamburgers are necessarily better, . . . it is the fact that they are already prepared, they are ready to go, and they come in a little package. Here suddenly we have cocaine available in a little package, in unit dosage, available at a price that kids can pay initially.
"Crack" Cocaine: Hearing Before the Permanent Subcomm. on Investigations of the Senate Comm. on Governmental Affairs, 99th Cong., 2d Sess. 20 (1986) (Testimony of Dr. Byck). Sadly, Dr. Byck's analysis has proved correct: of those using cocaine in the past year, crack was more popular among 12- to 17-year-olds than among any other age group. Indeed, as the mother of four children, it concerns me greatly that a substance as addictive as crack is available for little more than "lunch money."
Additional harms associated to a greater degree with crack than with powder cocaine include the increased association of violent crime with crack, the deterioration of neighborhoods due to open-air markets and crack houses, and the high correlation between crack and a host of social harms, including parental neglect, child and domestic abuse, and high risk sexual behaviors. Guideline enhancements, including the proposed enhancements, simply do not account for all of these harms. Thus, higher base sentences for crack distribution offenses are necessary for sentences to reflect the greater dangers posed by crack.
Keep in mind, the penalties we are discussing today relate only to crack distribution offenses. The entire Commission is in agreement that higher base sentences are not warranted for those who use or possess crack. Crack distributors, unlike possessors, are essential links in the distribution chain. Thus, when designing appropriate penalties for crack distributors, the manner in which crack is marketed is of critical importance.
Furthermore, adopting a one-to-one quantity ratio at the powder cocaine penalty level provides for insufficient punishment of crack distributors. A mid-level dealer who distributes fifty grams of crack (an amount that would currently trigger a ten-year sentence) to other mid-or street-level dealers, and pleads guilty, will face a guideline sentence of only twelve to eighteen months imprisonment under the proposed change. A twelve-month sentence seems, to me, too short for a dealer responsible for up to 500 crack transactions.
Despite the majority's reassurances that crack distributors will continue to receive greater sentences than powder defendants, this can happen under a one-to-one quantity ratio only if crack defendants continue, inter alia, to have more extensive criminal histories, use weapons to a greater extent than powder defendants, and accept responsibility to a lesser extent than powder defendants. In my judgment, it is not sound policy to rely on the fortuity of the presence of the above factors to ensure that crack defendants receive sufficiently harsh penalties. Rather, it makes more sense to me to ensure up front that crack distribution defendants receive appropriately harsh penalties, regardless of their criminal histories or the specific characteristics of the crime involved, simply because they are selling a more dangerous substance. The surest method of accomplishing this is to provide for a differential ratio for crack distribution offenses. What that ratio should be, however, is the subject of much debate and few clear-cut answers.
In discussing ratios, I would first like to reiterate that I find the current 100-to-1 ratio unjustified. Although crack is associated with greater harms than powder cocaine, these harms do not warrant a ratio as high as 100-to-1. Currently, sentences for crack offenders are roughly two to six times as great as sentences for powder cocaine offenders distributing equivalent quantities of drugs. See Table A1. In my opinion, this disparity is too extreme, and a lower differential ratio can adequately account for the greater dangers associated with crack. Having said this, however, I am not prepared - nor do I think it would be appropriate for me - to advocate a specific solution. I have never recommended a specific alternative to the one-to-one or even the 100-to-1 quantity ratio. As one of three dissenting members of the Commission on an issue where the majority has prevailed and no other ratio was analyzed by the entire Commission, in my judgment it would be inappropriate for me to make any such specific recommendation. I therefore offer only some factors for your consideration.
Selecting a ratio that adequately and fairly provides for appropriate punishment for crack distribution offenses, like all sentencing policy, is not an exact science. Rather, the process involves looking at a number of options, weighing their advantages and disadvantages, evaluating the impact of the various options on sentences, and ultimately making a judgment call on which option proves most acceptable on a policy basis. In some instances, it may be helpful to view the actual sentence differentials between crack and powder cocaine defendants at various ratios. Thus, I have included some tables to highlight these areas. See Tables A2-A4 (showing, for example, that at a ten-to-one ratio, crack sentences would be one and one-half to three times as great as powder sentences). With this in mind, I offer the following brief discussion of the most frequently cited alternatives: five-to-one, ten-to-one, and twenty-to-one.
Many have advocated a five-to-one ratio for crack to powder cocaine, in large part because heroin and methamphetamine offenses are sentenced at a level of five-to-one relative to powder cocaine. Presumably, heroin and methamphetamine offenses are sentenced more severely than powder cocaine because, like crack, they are more potent. Additionally, unlike powder cocaine or crack, heroin is physically as well as psychologically addicting. While the fact that crack poses no risk of physical addiction may weigh in favor of treating crack offenses less harshly than heroin - e.g., at four-to-one or three-to-one - other factors tip the scale in the other direction. For example, heroin must be injected to obtain maximum effect and is generally more expensive than crack. Thus, heroin is not as accessible to children and, indeed, our most current data indicates that neither heroin nor methamphetamine use is as prevalent in this country as the use of crack. Further, sentences for crack offenders may be too low if sentenced at a level of five-to-one. See Table B (setting forth the starting points for sentences at various quantity levels).
Guidelines' precedent exists for applying a differential ratio of ten-to-one to the smokable form of a drug. Like crack, which is more dangerous than powder cocaine largely because it is smokable, pure methamphetamine or "Ice" are concentrations of methamphetamine that are more efficiently smoked than standard methamphetamine (which is usually snorted). Under the sentencing guidelines, pure methamphetamine and "Ice" offenses are sentenced at a level of ten-to-one to standard methamphetamine offenses.
Moreover, as discussed above, another factor making crack more of a danger to society than powder cocaine is the fact that crack is usually broken down and sold in single-dose units, thus providing access to a wider range of individuals - particularly children and the economically- disadvantaged. Powder cocaine, on the other hand, is generally sold per gram. Fifty grams of powder cocaine represents fifty potential sales. Fifty grams of crack, on the other hand, can be divided into five hundred doses and therefore can represent five hundred sales - ten times as many sales as an equivalent amount of powder. Thus, to sentence crack and powder cocaine distributors according to the number of potential sales, a ten-to-one quantity ratio would be required.
Finally, applying a ten-to-one ratio may provide for adequate punishment for crack distributors. For example, under a ten-to-one quantity ratio, a mid-level crack dealer who distributes 100 grams of crack and pleads guilty would face a guideline sentence of forty-six to fifty-one months imprisonment, a sentence that strikes me as considerably more appropriate than the eighteen to twenty-four month sentence mandated by a one-to-one quantity ratio. See Table C.
An additional option is a twenty-to-one differential ratio. This is the ratio that was originally proposed by Senator Dole in 1986. One argument in favor of twenty-to-one is that this ratio may roughly equalize sentences of equally culpable crack and powder defendants. Sentencing Commission data, while admittedly very limited, tends to show that crack dealers occupying roles similar to their equally culpable powder cocaine counterparts distribute smaller amounts of drugs. For example, a mid-level dealer is defined as one who distributes large quantities to other mid-level dealers or to street-level dealers. A mid-level powder cocaine dealer is sentenced, on average, at a base offense level of 28, representing a quantity of up to 3,500 grams of cocaine. A mid-level crack dealer, on the other hand, is sentenced, on average, at a base offense level of 32, representing a quantity of up to 150 grams of crack - a difference of roughly twenty-to-one. See Table D. Further, the application of a twenty-to-one ratio to 1994 defendants makes the distribution of sentences among crack defendants more closely approximate to the distribution of sentences among 1994 powder cocaine defendants. See Table B.
The three quantity ratios I have just presented - five-to-one, ten-to-one, and twenty-to-one - are certainly not the only options. I present them because I think they represent an appropriate range of alternatives.
At this time, I would like to briefly address a few issues raised by my colleagues Chairman Conaboy and Commissioner Budd. First, I want to respond to the concern that, under the current system, low-level crack dealers receive sentences akin to those received by much higher-level powder dealers. However, the crack market differs from the cocaine powder market, rendering the distinctions between low-level and high-level dealers less meaningful than in the stereotypical drug transaction. The cocaine distribution chain market is generally viewed as a vertical framework with importers, wholesalers, and retail-level dealers. Under this vertical framework, each level closer to retail sales involves less culpable individuals. The crack market, on the other hand, often involves horizontally-integrated drug distribution chains that utilize separate and distinct organizations. Under a horizontal framework, a single conspiracy at the retail level can be quite extensive, involving a major distributor, a few mid-level dealers, and several street dealers. Due to the nature of the crack market, a retail-level distributer may indeed be a very major player. Thus, defining low-level crack dealers as necessarily less culpable than higher-level powder cocaine dealers is problematic.
At the same time, while I agree that sentences for low-level crack dealers and higher-level powder dealers should be more in line, this problem can be ameliorated by substantially lowering the 100-to-one quantity ratio. I reemphasize, however, that crack is a more dangerous substance than powder cocaine. Indeed, the entire Commission reached this conclusion in our Special Report. Therefore, although the process of manufacturing crack is relatively simple, in my opinion it is nevertheless appropriate to punish a crack distributor more harshly for his or her production or sale of a more dangerous product. I cannot support a sentencing scheme that effectively encourages the distributor to take the final, albeit simple, step of converting powder cocaine to crack and make it more readily available in the marketplace. This is the behavior we should be punishing.
The concern over the racial impact of cocaine sentencing policy is important. Nobody can deny the fact that the 100-to-1 quantity ratio has largely affected African American defendants. This factor alone, however, does not justify reshaping crack penalties. Every federal circuit has addressed this issue and the cases are unanimous: neither Congress nor the Commission acted with discriminatory intent in fashioning the crack penalties. To date, only one of hundreds of federal district court cases has held otherwise, and that case was promptly overturned on appeal. See United States v. Clary, 846 F. Supp. 768 (E.D. Mo.), rev'd, 34 F.3d 709 (8th Cir. 1994). The Commission's governing statutes require race-neutral sentencing schemes. The current sentencing guidelines are clearly race-neutral: the base offense levels and enhancements are applied in exactly the same way to all defendants regardless of race. To begin reshaping sentencing schemes because they affect racial groups differently is, to me, to cease to administer a race-neutral sentencing policy.
Finally, let me close by strongly advocating that, whatever the final ratio may be, Congress ensures the mandatory minimum statutes and the sentencing guidelines work together. If the mandatory minimum penalties are not revised along with the guidelines, the mandatory minimums will frequently override the guidelines, producing sharp cliffs in sentencing. A coherent sentencing scheme requires consistency between mandatory minimum penalties and the sentencing guidelines.
In conclusion, I cannot support the Sentencing Commission's proposal to equalize sentences for crack and powder cocaine trafficking offenses. At the same time, I appeal to the Committee to reevaluate the current 100-to-1 quantity ratio, and, in doing so, to provide an avenue for consistency between the mandatory minimum penalties and the sentencing guidelines.
Again, thank you Mr. Chairman and members of the Committee, for the opportunity to express my views.
August 10, 1995
Mr. Chairman, members of the Committee: thank you for the opportunity to present my views on the Sentencing Commission's recent guideline amendment and statutory recommendation concerning federal cocaine sentencing policy. First, I wish to express my high regard for the work of the entire Commission on this very difficult issue. I agree with Chairman Conaboy that, despite the Commission's divided vote on the one-to-one quantity ratio between powder and crack cocaine, our differences are small. As I stated in my written dissent to the guideline amendment submitted by the Commission to Congress, I support the Commission's Special Report on cocaine sentencing policy in which we unanimously rejected the 100-to-1 quantity ratio.See U.S. Sentencing Commission, Special Report to the Congress: Cocaine and Federal Sentencing Policy xiv & 198 (Feb. 1995) [hereinafter Special Report]. Further, I continue to support the Commission's unanimous recommendation to treat simple possession of crack cocaine commensurately with simple possession of powder cocaine. Thus, my dissenting opinion and our 4-3 vote on the one-to-one quantity ratio arises within a broader context of consensus concerning central aspects of federal sentencing policy for cocaine offenses.
The Commission's Special Report unanimously concluded 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. Our Commission stands divided only over which quantity ratio ought to replace the discredited 100-to-1 standard.
In our Special Report, the Commission suggested that a more appropriate penalty scheme could be achieved through the guideline system. We hoped that 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,"Id. at xv. we could create a sentencing scheme that reflects the enhanced dangers associated with crack cocaine.
Accordingly, the Commission set out to identify the 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 declined to vote in favor of them before 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. several 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). My disagreement with the Commission majority is with 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.
Together with Commissioners Tacha and Carnes, I dissented from the majority position because I believe 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 crack is administered in a manner that is potentially much more addictive than powder cocaine.Special Report, at 24-28. This aggravating danger cannot be integrated into the guidelines simply as a separate enhancement factor. Similarly, crack cocaine poses special risks to minorsId. at 195. and to pregnant women.Id. at 189-90. More specifically, the immediate risk is to the fetus. Risks to such persons exist even if the person to whom the crack is sold is neither young nor pregnant. Under most circumstances typical of the crack market, eventual usage by minors or pregnant women is reasonably foreseeable even if the immediate case (or the defendant's relevant conduct) does not involve such participants.
I believe that, since such systemic risks cannot be captured by guideline enhancements standing alone, another way must be found to account for 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.
Before discussing specific alternatives to the one-to-one quantity ratio, I wish to emphasize that our guideline system does a far better job of achieving appropriately severe punishment - as well as proportionality in sentencing - than the system of mandatory minimums which are based simply on drug type and quantity. Indeed, the Commission's 1991 report on mandatory minimums unanimously made this point within the broader context of our criminal justice system.See U.S. Sentencing Commission, Special Report to the Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System 33-34 (1991). I do believe, however, that quantity helps determine culpability in many drug cases.Quantity alone, however, ought not be determinative. Oftentimes, it may be outweighed by other important factors such as the defendant's role in the offense. Higher quantity levels often tell us something important about the scope of the criminal activity: that a broader drug trafficking network is involved.
In my view, 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. However, a one-to-one quantity ratio - even with enhancements - simply fails to achieve appropriate incarceration for the more serious, mid-level crack dealers. For example, because crack is typically used in dosages ranging from .1 to .5 grams, 50 grams of crack potentially produces between 100 and 500 dosages. Under the proposed changes, a mid-level dealer who pleads guilty to distributing fifty grams of crack (an amount that would currently trigger a ten-year sentence) to street-level dealers, would face a guideline sentence of twelve to eighteen months imprisonment. Such a term is too short for a dealer responsible for generating up to 500 dosages of crack.
The failure of the one-to-one ratio to provide sufficiently high sentences at the higher quantity levels 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. However, selecting a ratio that adequately and fairly provides for appropriate punishment for crack distribution offenses, like all sentencing policy, is certainly not an exact science. Rather, the process involves considering a number of options, weighing their relative advantages and disadvantages, evaluating their impact on potential sentences, and ultimately making a judgment call on which option proves most acceptable.
In making this determination, it is helpful to view the actual sentence differentials between crack and powder cocaine defendants at various ratios. Thus, I have included some tables to highlight these areas. See Tables A1-A3 (showing, for example, that at a ten-to-one ratio, crack sentences would be approximately 150% to 300% greater than powder sentences). With this in mind, I offer the following brief discussion of two alternatives: five-to-one and ten-to-one.
Information presented to the Commission suggests that, 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) (See Table B). 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 of powder 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 might more accurately reflect the realities of the two distinct drug trades.If anything, Commission data suggest 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) (See Table B). 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.
Some have also advocated a five-to-one ratio for crack to powder cocaine, in large part because heroin and methamphetamine offenses are sentenced at a level of five-to-one relative to powder cocaine. Presumably, heroin and methamphetamine offenses are sentenced more severely than powder cocaine because, like crack, they are more potent. Additionally, unlike powder cocaine or crack, heroin is physically as well as psychologically addictive. While the fact that crack poses no risk of physical addiction may weigh in favor of treating crack offenses less harshly than heroin, other factors cut the other way. For example, heroin must be injected to obtain maximum effect, and most users obviously prefer to avoid this route of administration. Heroin also is generally more expensive than crack, and so it is not as accessible to children. Perhaps for these reasons, our most current data indicates that heroin usage is not as prevalent as crack in this country. Further, sentences for crack offenders may be too low if sentenced at a quantity ratio of five-to-one. See Table C (setting forth the starting points for sentences at various quantity levels).
As for a ten-to-one quantity ratio, some precedent exists under the guidelines for applying this ratio to the smoke-able form of a drug. Like crack, which is more dangerous than powder cocaine largely because it is smoked, pure methamphetamine and "Ice" are concentrations of methamphetamine that are more efficiently smoked than standard methamphetamine (which is usually snorted). Under the sentencing guidelines, pure methamphetamine and "Ice" offenses are sentenced at a level of ten-to-one relative to standard methamphetamine offenses.United States Sentencing Commission, Guidelines Manual 2D1.1.
Moreover, as discussed above, another consideration that makes crack more dangerous to society than powder cocaine is the fact that crack is usually broken down and sold in single-dose units, thereby providing access to a wider range of individuals - particularly children and the economically-disadvantaged. Powder cocaine, on the other hand, is generally sold per gram. Fifty grams of powder cocaine, therefore, ordinarily represents fifty potential sales. Fifty grams of crack, by comparison, can be divided into as many as five hundred doses and thus can represent five hundred sales - ten times as many sales as an equivalent amount of powder. Thus, a ten-to-one quantity ratio makes sense insofar as it sentences crack and powder cocaine distributors according to the number of sales that they have generated.
An enhanced risk also occurs when a drug dealer converts powder into crack cocaine. For this reason, the guidelines in several areas provide enhanced penalties for those defendants who have converted an illicit drug into a more dangerous form of the same drug. For example, the methamphetamine trafficker who converts his product into smoke-able "ice" is subject to a higher penalty, as is someone who converts the precursor chemical into methamphetamine.Id.
Finally, applying a ten-to-one ratio would certainly punish crack distributors adequately. For example, under a ten-to-one quantity ratio, a mid-level crack dealer who pleads guilty to distributing 100 grams of crack would face a guideline sentence of 51 to 63 months imprisonment, a sentence that strikes me as considerably more appropriate than the 18 to 24 month sentence often resulting under a one-to-one quantity ratio. See Table C.Under a ten-to-one ratio, 100 grams of crack would be punishable by 63-78 months. (See Table C, offense level 26). However, as the guidelines provide for a two level reduction for acceptance of responsibility, a defendant who pleads guilty may qualify for a range of 51-63 months. (See Table C, offense level 24).
Before concluding, I wish to address the role of race in this debate. In my original dissent, I wrote that the issue of the appropriate cocaine sentencing policy 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. Our Special Report found that the 100:1 quantity ratio affected a disproportionate number of African-American defendants.Special Report, supra note 1, at 156. This is indisputably true, but 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.
I continue to abide by these views as expressed in my dissent. Recently, however, the argument has been expressed to me that the existing quantity ratio is discriminatory in effect because black crack dealers are routinely prosecuted in federal courts - where the penalties are higher - while white crack dealers more often are processed through the relatively lenient state systems. If true, this allegation merits your immediate attention and response.
Presently, I continue to dissent from the majority's vote to reduce the quantity ratio between powder and crack cocaine to one-to-one. I believe 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.
At the same time, I wish to urge Congress to terminate the present 100:1 ratio. To my knowledge, no one who has studied the problem, including the Department of Justice, supports such a disproportionately high and unfair ratio. We all recognize, of course, that establishing drug penalties at such high levels may be politically popular. Congress, however, established the Sentencing Commission as a nonpartisan institution designed to operate objectively and without regard to political trends. The present Commission, which includes members such as Wayne Budd and myself who have devoted substantial portions of our careers to effective law enforcement, has studied this problem carefully and unanimously rejected the 100:1 ratio. The Commission's rejection of 100:1 is supported by sound policy as well as common sense. For example, the 100:1 quantity ratio creates bizarre results and incentives within the criminal justice system. Under a 100:1 quantity ratio, a street dealer now faces as much as 78-97 months. This is much too high and, perversely, it is a far greater penalty than the law often imposes upon the distributor who sold him the powder for conversion into crack. In effect, the 100:1 ratio thereby encourages street dealers to avoid greater penalties by becoming high level powder distributors.
The 100:1 quantity ratio is also inconsistent with traditional theories of punishment. As some of you know, I am also a professor of law and so I feel bound to respect some of the black letter legal principles that I've taught in the classroom.
For example, because the present penalty for low level crack dealers is patently excessive, it overrides the principle of "just deserts." Further, because the penalty lacks legitimacy, perpetrators inevitably view it as unfair. As a result, rather than spend time in prison trying to rehabilitate oneself, an offender is more likely to wallow in anger and bitterness over the obvious unfairness of his or her sentence. Inevitably, such anger and bitterness produces undesirable consequences. For example, such inmates are more likely to engage in violence or other socially inappropriate behavior. This result is obviously inconsistent with the incapacitation goal of punishment. Of greater concern, however, is the reality that these inmates one day will be released into society. Upon their return, rather than having achieved rehabilitation, they are more likely to explode with rage. In my judgment, excessive incarceration of these people today will inevitably foster excessively criminal behavior tomorrow.
For this reason, a vote in favor of 100:1 is not one that I view as "tough on crime." Rather, it offers the illusion of a short-sighted solution to a long-term problem. Furthermore, this illusion will come at a price. Federal prisons are already experiencing space problems. Such pressures will increase, as the 100:1 ratio inevitably produces longer prison terms. In response, the federal government will need to spend valuable dollars building new prisons.
My own view is that, rather than respond to political pressures, Congress ought to craft a principled solution to this problem. A quantity ratio in the range of five or ten to one provides a better framework for application of the guidelines.Alternatively, even under a one-to-one quantity ratio, the Commission might be able to develop an appropriately severe penalty scheme for crack by adding an automatic enhancement to the base offense level for cases involving either crack or the foreseeability that powder cocaine will be converted into crack. See Table C. Depending upon the number of levels chosen for this enhancement, high level crack offenders will generally face penalties approximately 25% (for a two level enhancement) to 55% higher (for a four level enhancement) than powder violators. Furthermore, this approach avoids the windfall presently enjoyed by high level powder distributors who often receive no added penalty for having sold powder that they knew would ultimately be converted into crack. Either of these ratios for crack offenses, when combined with the Commission's recently proposed enhancements to the guidelines, will produce an appropriately severe sentence consistent with all goals of the criminal justice system.
United States Sentencing Commission