April 5, 2002

News Release

U.S. Sentencing Commission
One Columbus Circle NE
Washington, DC 20002-8002

For Immediate Release
Thursday, April 5, 2002

Contact: Michael Courlander
Public Affairs Officer
(202) 502-4597

Change In Federal Cocaine Sentencing Policy Recommended
Findings To Be Submitted To Congress

Washington, D.C. (April 5, 2002) - Exercising its statutory power to recommend changes to existing criminal statutes, the United States Sentencing Commission intends to ask Congress to modify federal drug laws to address the disparity in treatment between crack and powder cocaine. Those laws, enacted by Congress in the mid-1980s, treat trafficking and mere possession of crack, an inexpensive smoked form of cocaine, more severely than powder cocaine. Based upon an extensive year long study, which includes an examination of thousands of federally prosecuted cocaine cases sentenced between 1995 and 2000, expert testimony gathered from a series of public hearings, and a survey of United States district and appellate judges, the Sentencing Commission unanimously concluded that while greater punishment for crack cocaine than for powder cocaine is clearly warranted, the current 100 to 1 drug quantity ratio between the two forms of cocaine is not appropriate.

Under the Sentencing Reform Act of 1984, Congress authorized the Sentencing Commission to ". . . make recommendations to Congress concerning modification or enactment of statutes relating to sentencing, penal, and correctional matters that the Commission finds to be necessary and advisable to carry out an effective, humane and rational sentencing policy." See 28 U.S.C. § 995(a)(20). This power to recommend changes to federal criminal statutes is separate from the Sentencing Commission's ability to issue sentencing guidelines that, if not rejected by Congress during a designated six month period of review, must be followed by federal judges when imposing sentences. See 28 U.S.C. § 994(a)(1). The Sentencing Commission chooses to bring light rather than heat to this subject in order to seek appropriate change. To that end, it intends to issue a report in response to recent congressional inquiries and also to avoid the anomaly of having sentencing guidelines that conflict with federal law. The Sentencing Commission chooses to invoke its power to recommend statutory changes before it moves forward with any amendments to the sentencing guidelines.

The Sentencing Commission was encouraged to address the crack cocaine issue in this manner due to the parallel interest expressed in Congress. Senator Jeff Sessions (R-AL) and Senator Orrin Hatch (R-UT) recently introduced a bill in Congress entitled the "Drug Sentencing Reform Act of 2001" which acknowledged the unwarranted disparity in crack and powder penalties by proposing to adjust the drug quantity ratio between the two forms of cocaine. Also, in a joint letter from Senator Hatch and Senate Judiciary Committee Chair Patrick Leahy (D-VT), the Commission was asked to examine federal cocaine penalties and report on specific delineated issues.

Acknowledging that it is not the federal sentencing guidelines that exclusively govern sentencing policy, but also federal criminal statutory law, the Sentencing Commission determined that at this juncture its role under the Sentencing Reform Act is to first advise Congress on necessary statutory changes. By submitting a recommendation for a statutory change to Congress, the Sentencing Commission has an opportunity to influence the outcome of this long standing policy issue. It will also avoid sentencing disparity caused by a unilateral change in the sentencing guidelines without a corresponding change in relevant criminal statutes. In pursuing this route, it is anticipated that congressional hearings will be held on the Commission's report and recommendations and a legislative remedy will result.

Throughout this amendment cycle, the Commission staff has been engaged in gathering, studying, and analyzing information and data pertaining to crack cocaine, its relationship to societal harms when compared to other drugs, and its place in the present federal penalty structure. The Commission has sought and received substantial public comment from individuals and representative groups with expertise, information, and views on the matter. Specifically solicited were law enforcement officials, including the United States Department of Justice, the Drug Enforcement Agency, the Office on National Drug Control Policy, the Fraternal Order of the Police, the International Association of Chiefs of Police, and the National Association of District Attorneys.

The Department of Justice's views and analysis of this issue were furnished last month when the Deputy Attorney General testified at our hearing. At that time, the Administration announced its position that the existing penalty structure for crack cocaine was appropriate and recommended that the Commission make no change. Accompanying that testimony was a written analysis on which the Department relied in reaching its conclusion that present penalties are appropriate.

Congress has established that one of the fundamental purposes of the Sentencing Commission is to establish federal sentencing policies and practices that are both certain and fair and that avoid unwarranted sentencing disparities among similarly situated defendants who commit similar crimes (28 U.S.C. § 991 (b)). This Commission is concerned not only with whether crack cocaine penalties are fair, but whether the penalties are perceived as fair.

The federal penalty structure for crack cocaine has and will continue to generate concern both within and outside the federal criminal justice community. It is incumbent on those of us in positions to make improvements in the sentencing structure to do so in a thoughtful and collaborative way. The Commission intends that this report and recommendations will be another step in that process.

The Sentencing Commission expresses its appreciation to all those who responded to our request for comment on this important topic. The information and views provided were extremely helpful in focusing on the issues as well as in formulating our report.