May 22, 2002

News Release

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

For Immediate Release:
May 22, 2002

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

SENTENCING COMMISSION REPORTS
ON COCAINE SENTENCING POLICY

WASHINGTON, D.C. (May 22, 2002) – Asserting its role as an advisor to Congress on federal sentencing policy, the United States Sentencing Commission today released a comprehensive 112-page report to Congress advocating a reassessment of federal cocaine penalties. The chair of the Commission, Judge Diana E. Murphy of the 8th Circuit Court of Appeals, also appeared before the Senate Judiciary Committee to outline the Commission’s position.

In her testimony before the Senate, Judge Murphy asked Congress to modify federal drug laws to target the most dangerous offenders for greater punishment while also addressing the wide disparity in treatment between crack and powder cocaine. The current laws, enacted by Congress in the mid-1980s, treat trafficking and mere possession of crack, an inexpensive smoked form of cocaine, significantly 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, specifically in cases involving violence, the current 100-to-1 drug quantity ratio between the two forms of cocaine is not appropriate.

The Sentencing Commission’s report to Congress, entitled Cocaine and Federal Sentencing Policy, sets forth concrete recommendations for statutory and guideline modifications to the federal sentencing structure for cocaine offenses. The Sentencing Commission recommends that Congress adopt a three-pronged approach for revising federal cocaine sentencing policy:

(1) increase the quantity of crack cocaine required that triggers an automatic mandatory minium sentence. Specifically, the five-year mandatory minimum threshold quantity for crack cocaine offenses should be adjusted from the current 5 grams trigger to at least 25 grams and the current ten-year threshold quantity from 50 grams to at least 250 grams (and repeal the mandatory minimum for simple possession of crack cocaine);

(2) direct the Sentencing Commission to provide appropriate sentencing enhancements to increase penalties should the drug crime involve: (a) a dangerous weapon (including a firearm); (b) bodily injury resulting from violence; (c) distribution to protected individuals and/or locations; (d) repeat felony drug trafficking offenders; and (e) importation of drugs by offenders who do not perform a mitigating role in the offense; and

(3) maintain the current statutory minimum threshold quantities for powder cocaine offenses at 500 grams triggering the five-year mandatory minimum penalty and 5,000 grams for the ten-year mandatory minimum penalty (understanding that the contemplated specific guideline sentencing enhancements would effectively increase penalties for the more dangerous and more culpable powder cocaine offenders).

The recommendations, if adopted, would narrow the difference between average sentences for crack cocaine and powder cocaine offenses from 44 months to approximately one year. Specifically, the Commission estimates that the average sentence for crack cocaine offenses would decrease from 118 months to 95 months, and the average sentence for powder cocaine offenses would increase from 74 months to 83 months. Importantly, the guideline sentencing range based solely on drug quantity for crack cocaine offenses still would be significantly longer (approximately two-to-four times longer) than powder cocaine offenses involving equivalent drug quantities.

The Sentencing Commission undertook the study following a series of events, including the introduction of legislation by Senators Jeff Sessions and Orrin Hatch to modify cocaine penalties and a joint letter to the Commission from Senate Judiciary Committee Chair Patrick Leahy and Ranking Minority Member Hatch, requesting a report on the subject.

"The Commission seeks to brings about adjustments in cocaine sentencing policy," said Commission Chair Judge Diana E. Murphy. "It is our hope that this report and recommendation will prove helpful to Congress and lead to adjustments in federal cocaine penalties."

In justifying its recommendations, the Commission made the following major findings about cocaine offender profiles examined between fiscal years 1995 and 2000:

• Contrary to the general objective of the 1986 legislation to target "serious" and "major" traffickers, two-thirds of federal crack cocaine offenders were street-level dealers. Only 5.9 percent of federal crack cocaine offenders performed trafficking functions most consistent with the functions described in the legislative history of the Anti-Drug Abuse Act of 1986 as warranting a five-year penalty, and 15.2 percent performed trafficking functions most consistent with the functions described as warranting a ten-year penalty;

• The current penalty structure was based on beliefs about the association of crack cocaine offenses with certain harmful conduct – particularly violence – that are no longer accurate. In 2000, for example, three quarters of federal crack cocaine offenders had no personal weapon involvement, and only 2.3 percent discharged a weapon. Therefore, to the extent that the 100-to-1 drug quantity ratio was designed in part to account for this harmful conduct, it sweeps too broadly by treating all crack cocaine offenders as if they committed those more harmful acts, even though most crack cocaine offenders, in fact, had not;

• The negative effects of prenatal crack cocaine exposure are identical to the negative effects of prenatal powder cocaine exposure and are significantly less severe than previously believed;

• The overwhelming majority of offenders subject to the heightened crack cocaine penalties are black, about 85 percent in 2000. This has contributed to a widely held perception that the current penalty structure promotes unwarranted disparity based on race. Although this assertion cannot be scientifically evaluated, the Commission finds even the perception of racial disparity problematic because it fosters disrespect for and lack of confidence in the criminal justice system.

These conclusions led the Commission to unanimously conclude that the various congressional objectives can be achieved more effectively by decreasing the 100-to-1 drug quantity ratio.

The U.S. Sentencing Commission, an independent agency in the judicial branch of the federal government, was organized in 1985 to develop a national sentencing policy for the federal courts. The resulting sentencing guidelines, which went into effect November 1, 1987, structure the courts’ sentencing discretion to ensure that similar offenders who commit similar offenses receive a similar sentence. The Commission has ongoing responsibility to monitor and amend the guidelines.


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