Report on Cocaine and Federal Sentencing Policy

Chapter 7

Sentencing of Cocaine Offenders


At the heart of the debate surrounding cocaine sentencing lies the 100-to-1 quantity ratio between powder and crack cocaine. This quantity ratio leads to a penalty ratio for offenders involved with equivalent amounts of either form of crack cocaine. Depending on the exact quantity, the mandatory minimum penalties and sentencing guidelines prescribe prison terms for crack defendants that generally range from three to almost eight times longer than for defendants with equivalent amounts of powder cocaine.

Previous chapters have examined various aspects of the cocaine problem, focusing particularly on similarities and differences between the forms of the drug. Chapter 6 reviewed the legislative and law enforcement response. In this chapter, we focus on the end result of law enforcement - the sentencing of cocaine offenders - with special attention to the differences in penalties associated with crack and powder cocaine. How are penalties in the federal courts determined? What are the typical sentences for crack versus powder cocaine defendants? What is the impact of the 100-to-1 quantity ratio on cocaine sentences? Who are the defendants receiving these sentences? How effective are current policies at identifying for increased punishment the most dangerous and culpable offenders?


Federal sentences for drug trafficking are determined through the interaction of mandatory minimum statutes and the sentencing guidelines. Section 841 of title 21, U.S.C., identifies seven drugs (including powder and crack cocaine) and assigns each differing quantity levels that trigger five- and ten-year mandatory minimum penalties. The Sentencing Commission incorporated these "triggering amounts" when it created the drug guidelines.

As a general matter, the guidelines assign a base offense level (a number) that serves as a starting point in assessing the seriousness of an offense. This base offense level can increase or decrease based on the circumstances of the particular case. The factors that modify the base offense level ("specific offense characteristics") are enumerated in the guidelines. A base offense level, modified by specific offense characteristics and general adjustments, forms one axis of the table used to determine sentencing ranges. The sentencing table's offense axis extends from level 1 (least serious) to level 43 (most serious).

The other axis reflects the defendant's criminal history category as expressed in one of six categories (Category I-Category VI).The point at which the offense level and criminal history category intersect on the sentencing table determines an offender's guideline range.

In drug cases, the guidelines take account of a large number of relevant factors when determining the offense level and criminal history category:

Base offense level: The most important elements in setting the base offense level are the type and quantity of drugs involved. As discussed above, the guidelines incorporate the penalty levels established in the mandatory minimum statutes and then extrapolate from these across the range of possible drug quantities to achieve a smooth, proportionate increase in sentence length as drug amount increases. For example, an offense level of 26 (equivalent to the five-year mandatory minimum penalty prescribed by 21 U.S.C. 841(b)(1)(B)) is applied when crack cocaine weight is 5 grams to 20 grams or powder cocaine weight is 500 grams to 2 kilograms. For detailed instructions on how the guidelines sanction drug offenders, see U.S. Sentencing Commission, Guidelines Manual (hereinafter "USSG") Chapter Two, Part D, "Offenses Involving Drugs."

Specific Offense Characteristics: The base offense level is adjusted upward by a predetermined amount for drug offenses that involve

-death or serious bodily injury resulting from the use of the substance; USSG 2D1.1(a)(1) or (2).

-possession of a dangerous weapon; USSG 2D1.1(b)(1).

-use of an aircraft-related skill in importing the substance; USSG 2D1.1(b)(2). or

-killing of a victim. USSG 2D1.1(d)(1).

Other general offense level adjustments: The base offense level can be adjusted for additional aggravating or mitigating factors

-if a vulnerable or official victim was involved or a victim was restrained; USSG, Chapter Three, Part A ("Victim-Related Adjustments").

-for a defendant's role in the offense (e.g., acting as leader or organizer of a group), for abuse of a position of trust, or use of a special skill; USSG, Chapter Three, Part B ("Role in the Offense").

-for obstruction of justice; USSG, Chapter Three, Part C ("Obstruction").

-for multiple counts of conviction; USSG, Chapter Three, Part D ("Multiple Counts"). and

-for a defendant's acceptance of responsibility for the crime. USSG, Chapter Three, Part E ("Acceptance of Responsibility").

Prior criminal involvement: The criminal history category is increased if a defendant

-has a prior record, based on the number, seriousness, and recency of sentences for prior convictions; USSG, Chapter Four, Part A ("Criminal History"), 4A1.1 (a)-(c).

-committed the new offenses while under another criminal justice sentence; USSG, Chapter Four, Part A ("Criminal History"), 4A1.1(d).

-committed a crime of violence related to another offense; USSG, Chapter Four, Part A (Criminal History"), 4A1.1(f). and

-receives a career offender enhancement that provides penalties at or near the statutory maximum for drug traffickers with two or more prior convictions (state or federal) for drug trafficking or crimes of violence. 28 U.S.C. 994(h) and USSG, Chapter Four ("Criminal History and Criminal Livelihood").

The judge must choose a sentence from within the guideline range unless the court identifies an aggravating or mitigating circumstance that was not adequately considered by the Sentencing Commission (a "departure"). 18 U.S.C. 3553(b) and USSG 5K2.0. In mandatory minimum drug cases, judges can depart only upon motion from the government stating that a defendant has provided substantial assistance in the investigation or prosecution of another person. 18 U.S.C. 3553(e) and USSG 5K1.1. (The numbers of persons receiving these departures are reported below.)

Because guideline base offense levels are pegged to the statutory mandatory minimum drug quantities, all guideline drug sentences are indirectly affected by the mandatory minimums. The base offense levels are set at guideline ranges slightly higher than the mandatory minimum levels to permit some downward adjustment for defendants who plead guilty or otherwise cooperate with authorities. Most of the specific offense characteristics and general adjustments increase the sentence length, as do all of the adjustments for criminal history. The result is that most drug defendants in federal court receive guideline sentences higher than the applicable statutory mandatory minimum penalty. In 79 percent of the 1993 crack cases and 71 percent of the powder cases, the minimum of the guideline range was higher than the applicable statutory mandatory minimum. For cases in which the mandatory minimum level is higher than the guidelines, the statutes "trump" the guidelines and the defendants receive the mandatory minimum penalty.

An exception to the mandatory minimum drug penalties was created by Congress in 1994 for certain first-time, non-violent, low-level drug offenders. This so-called "safety valve" allows qualified defendants to receive the full benefit of any mitigating guideline adjustments that they would otherwise be precluded from due to the mandatory minimum penalties. 18 U.S.C. 3553(f), and USSG 5C1.2. Only defendants whose guideline sentence is lower than the mandatory minimum level or who qualify for a downward departure actually benefit from the "safety valve" provision. In the first two months of its implementation, 27 powder cocaine and 13 crack defendants benefitted from the "safety valve." The "safety valve" became effective September 23, 1994. As of February 3, 1995, the Sentencing Commission had received and entered into its database 96 cases in which the provision had clearly been applied. (In 28 cases a qualifying defendant received a sentence below the mandatory minimum but court records do not indicate the reason or legal basis.) There is generally a two-month lag between a defendant's sentencing and his/her case file being received by the Commission.


1. Sentencing Commission Data

The findings in the following sections were obtained from the U.S. Sentencing Commission's monitoring database for federal offenders. The Sentencing Commission's data system began distinguishing between crack cocaine and powder cocaine defendants in FY 1992. Information in this chapter reflects FY 1993 data, the most complete and recent information publically available. (The analyses presented here were replicated with 1992 data and with 1994 data recently entered at the Commission. No changes in the major findings discussed here were found; 1993 is a representative year.) The Sentencing Commission receives information on all cases sentenced under the federal guidelines and maintains an automated database with more than 260 variables for each case. Case, when referred to in this chapter, is defined in the Commission's data collection system as a single sentencing event for a single defendant. Multiple defendants in a single sentencing event are treated as separate cases. If an individual defendant is sentenced more than once during a reporting year, each sentencing event is identified as a separate case. The data include only cases convicted at the federal level. Consequently, they cannot be said to present a representative sample of all drug importation, trafficking, and distribution offenses in the United States, nor of the demographics of all drug defendants.

Information in the monitoring database is derived from various documents sent to the Commission from federal district courts (i.e., Judgment of Conviction Order, Presentence Report, Plea Agreement, Report on the Sentencing Hearing, and Guideline Worksheets). In a limited number of cases, documentation is incomplete. The Sentencing Commission depends upon the district courts to submit data. Defendants sentenced under the guidelines whose files were not forwarded to the Commission are not included in these analyses. To ensure that the analysis is founded on the best available data, only those cases in which complete court information was received were used. Selecting cases using this criterion reduces the number of drug cases for analysis by 3,283 cases. Finally, the analysis below is based on the primary type of drug involved in the offense. "Primary drug type" does not mean the only drug involved in the offense, but rather the drug that was most important in determining the defendant's sentence. Many drug dealers simultaneously deal more than one illicit drug (e.g,. as discussed in Chapter 4, many crack cocaine dealers also deal in powder cocaine). Because of the current sentencing scheme and the 100-to-1 quantity ratio, crack will usually drive the ultimate sentence in the case of a dealer in both crack and powder cocaine, and thus will be considered the primary drug type. It is possible that such a defendant was involved with a greater quantity of powder cocaine, but the lesser quantity of crack controlled the sentence.

2. Sentences of Drug Traffickers

Of the 42,107 defendants sentenced in federal court in fiscal year 1993, more than 46 percent were convicted of drug offenses. During FY 1993, the number of drug defendants increased by ten percent over the previous year. United States Sentencing Commission , Annual Report (1993). Figure 9 presents the distribution of FY 1993 drug cases by type of drug. Powder cocaine was the most frequently reported primary drug, representing 34.5 percent of federally sentenced drug cases. The remaining 65 percent, in order of prevalence include marijuana (26.7%), crack cocaine (19.4%), heroin (10.0%), methamphetamine (4.9%), and other drugs (4.5%). Combining crack and powder cases, we see that cocaine was the primary drug for 53.9 percent of all federal drug cases sentenced under the guidelines, or a total of 9,925 sentenced offenders.

As outlined above, cocaine sentences are the product of a complex interaction of statutes and guidelines. The result of this interaction has been that crack cocaine defendants are more likely to be sentenced to prison and, on average, receive much longer sentences than powder cocaine offenders. Table 6 shows that approximately 94 percent of all drug trafficking cases receive prison sentences. Crack defendants are even more likely to receive a sentence of imprisonment (97.6% prison), as well as the longest average period of incarceration (median 97 months, mean 126.6 months). The mean and the median are the two most common measures of "central tendency" or typicality of a group of cases. The median is the point at which half the cases fall above and half fall below. The mean is the mathematical average obtained by adding all sentence lengths together and dividing by the number of cases; means, therefore, are affected more by a particularly high or low sentence. Methamphetamine cases resulted in the second longest average period of incarceration (median 78 months, mean 106.7 months), followed by powder cocaine cases (median 63 months, mean 96.0 months), heroin cases (median 60 months, mean 71.6 months), and marijuana cases (median 35 months, mean 49.3 months).

Courts have discretion to select a sentence within the guideline range or, in appropriate cases, to depart. Table 7 presents information on sentence departures. Most defendants are sentenced within the guideline range (varying from 53.9% of methamphetamine cases to 69.6% of heroin cases). When departures occur, they are most often the result of a motion from the government that the defendant provided substantial assistance in the investigation or prosecution of another person (ranging between 22.5% of heroin cases and 39.9% of methamphetamine cases). The percentage of cases receiving a motion for substantial assistance is the factor that has changed the most over the past three years. In 1992, 20.8 percent of crack cases and 27.2 percent of powder cases received such a motion. This rate has increased every year, with 32.6 percent and 35.7 percent of crack and powder cases, respectively, getting such an adjustment in 1994. Close to 33 percent of powder cocaine defendants receive a departure for substantial assistance compared to 28 Figure 9

Table 6


percent of crack cases. Both types of offenders receive similar percentages of other downward departures, 4.7 and 5.5 percent for powder and crack respectively, and virtually identical numbers of upward departures.

The 100-to-1 quantity ratio is a major factor contributing to the differences between powder and crack cocaine sentences. If we compare the average sentence of offenders involved with the same amount of powder and crack cocaine, Drug amount is determined in the database according to the defendant's base offense level. For this analysis, we compare powder defendants at base offense levels 16 and 18 (corresponding to 50 to 200 grams) to crack defendants at level 32 (corresponding to 50 to 150 grams). Thus, the powder cocaine defendants in the sample may have actually had slightly larger amounts of drugs. These amounts were chosen because they are the levels at which a substantial number of defendants can be found for both forms of the drug. the impact of the quantity ratio can be clearly seen. For defendants involved with 50 to 150 grams of cocaine, crack defendants have median sentences of 120 months, while powder defendants have median sentences of 18 months.

3. Sentences for Offenders Convicted of Simple Possession

Drug possession is treated differently than trafficking under the guidelines. For all drugs other than crack, only the type and not the amount possessed affects the base offense level. Guideline 2D2.1 lists three offense levels: heroin or other opiates and crack are assigned base offense level 8; cocaine, LSD, and PCP base offense level 6; and other controlled substances level 4. These base offense levels correspond to a prison range of 0-6 months for first offenders. This allows them to qualify for alternatives to imprisonment, such as confinement in a residential treatment facility.

A special provision of 2D2.1 accommodates the mandatory minimum penalty for possession of more than five grams of crack. Keeping with the congressional presumption that possession of this amount represents trafficking instead of personal use, the guidelines refer defendants with more than five grams of crack to the drug trafficking guideline. Consequently they are sentenced like drug traffickers, with base offense levels beginning at 26 (corresponding to prison terms of 63 to 78 months for first offenders).

Table 8 shows the average sentences for defendants convicted of possession of various drugs, including crack and powder cocaine. Ninety-eight defendants were sentenced for possession of crack in 1993; 122 were sentenced for possesion of powder. The mean sentence for crack was 30.6 months, the mean sentence for powder was 3.2 months; the median for crack was 9.5 months, for powder it was zero. The median of zero for powder indicates that most powder possession cases (73.8%) received probation with no prison term, compared to 32 percent of crack possession cases receiving probation.

Table 8


Who are federal cocaine offenders, and how do powder and crack cocaine offenders compare with each other and with other drug offenders? In particular, are there important offender characteristics that distinguish crack offenders from powder offenders?

1. Citizenship

Table 9 shows the citizenship of federal drug defendants. Among crack cocaine cases, only 8.1 percent were non-U.S. citizens. This contrasts with the higher proportion of aliens for other drugs (powder cocaine 29.7%, heroin 63.0%, marijuana 31.8%, and methamphetamine 9.9%). Within a drug organization, alien status may be associated with the role of mule or courier and the crossing of a U.S. border. As discussed in Chapter 4, crack cocaine cases very infrequently involve crossing the U.S. border.

2. Gender, Age, and Education

Most federal drug defendants are male (89.2% of traffickers, 81.4% of possessors), regardless of the type of drug involved (see Table 10). Most (75.2% of traffickers) are 26 years of age or older (see Table 11). However, crack cocaine trafficking defendants are generally younger, with nearly half (46.9%) less than 26 years old. Crack cocaine defendants are the only drug group with an average age less than 30 years. As Table 12 shows approximately half (47.9%) of all drug defendants have not graduated from high school. The percentage of defendants not completing high school is highest among marijuana defendants (53.0%). Crack cocaine trafficking defendants have the lowest rates of college attendance or graduation.

3. Race and Ethnicity

Table 13 presents the distribution of drug trafficking cases by defendant's race. In 1993, Whites account for 30.8 percent of all convicted federal drug offenders, Blacks 33.9 percent, and Hispanics 33.8 percent. Sentencing patterns for some drugs show high concentrations of a particular racial or ethnic group. Most strikingly, crack cocaine offenders are 88.3 percent Black. Conversely, methamphetamine offenders are 84.2 percent White. Powder cocaine cases involve sizeable proportions of Whites (32.0%), Blacks (27.4%), and Hispanics (39.3%).

Among defendants convicted of simple possession, 58 percent of powder defendants were White, 26.7 percent were Black, and 15 percent were Hispanic. Among crack defendants, 10.3 percent were White, 84.5 percent were Black, and 5.2 percent were Hispanic.

Table 9

Table 10

Table 11

Table 12

Table 13

4. The Effect of the 100-to-1 Quantity Ratio on Differences in Average Sentences Imposed on Various Racial Groups

Findings in a recent Bureau of Justice Statistics study, conducted by Douglas McDonald and Kenneth Carlson, suggest that between 1986 and 1990 both the rate and the average length of imprisonment for federal offenders increased for Blacks in comparison to Whites.28 U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Sentencing in the Federal Courts: Does Race Matter? (Nov. 1993). The researchers concluded that this increase, based on legally relevant offense characteristics, was caused largely by the mandatory minimum penalties for drug offenses and more specifically by the 100-to-1 quantity ratio of powder cocaine to crack cocaine. The study states that with the implementation of sentencing guidelines and mandatory minimum penalties,

[t]he main reason that Blacks' sentences were longer than Whites' during the period from January 1989 to June 1990 was that 83% of all Federal offenders convicted of trafficking in crack cocaine in guideline cases were Black, and the average sentence imposed for crack trafficking was twice as long as for trafficking in powdered cocaine.29 Id. at 1.

McDonald and Carlson examined a number of offense- and offender-related characteristics and found that White, Black, and Hispanic crack cocaine traffickers differed in drug amounts, prior record, weapon involvement, trial rates, and charge reductions resulting from pleas. They conclude that within the category of crack cocaine trafficking, "these differences accounted for all the observed variation in imprisonment sentences."30 Id. at 2.

Interpreting their findings, McDonald and Carlson suggest that "[m]odification of specific laws and/or guidelines would essentially eliminate the racial/ethnic differences..."31 Id. at 1. More specifically, they single out the 100-to-1 quantity ratio and argue that

[i]f legislation and guidelines were changed so that crack and powdered cocaine traffickers were sentenced identically for the same weight of cocaine, this study's analysis suggests that the Black/White difference in sentences for cocaine trafficking would not only evaporate but would slightly reverse.32 Id. at 2.

The 100-to-1 crack cocaine to powder cocaine quantity ratio is a primary cause of the growing disparity between sentences for Black and White federal defendants.


1. Prior Record

Research has shown that the best way to identify offenders who are most likely to commit new offenses is to focus on their prior criminal record. The sentencing guidelines increase a defendant's sentence based on the seriousness of his/her criminal history to ensure that persons who are a continuing threat to the community are sufficently punished. The Commission's criminal history categories have been shown to be valid predictors of recidivism and dangerousness for drug offenders. See U.S. Department of Justice, An Analysis of Non-Violent Drug Offenders with Minimal Criminal Histories (Feb. 1994),Table 26 Part I (reporting results of follow-up study of a cohort of drug offenders with a range of criminal histories. Offenders with zero criminal history points were still successful three years after release 92% of the time. Those with over ten points succeeded only 23% of the time. Among Category I offenders, half the failures were for drug sale or possession, 14% were for property crimes, 12% were for driving while intoxicated, and 6% were for simple assault. The remainder were for technical violations or other offenses.)

Table 14 presents data on the criminal history categories of federal drug trafficking defendants. In general, federal defendants do not have serious prior criminal records: 62.0 percent fall in Category I, that is, they have either no prior record, a single minor offense, or very old convictions. Examination by specific drug type, however, indicates that crack cocaine defendants as a group have more serious records of prior convictions than defendants convicted of other drug offenses. Crack defendants are least likely to have the lowest criminal history score (44.8%) and most likely to score in the career offender range (6.3%).

Table 15 shows that crack cocaine defendants also are more likely to have a recent criminal record, with 33.7 percent under a pre-existing criminal justice sentence at the time of their most recent federal offense. Additionally, crack cocaine defendants are most likely (4.2% compared to 1.7% for powder cocaine defendants) to have committed the instant offense within two years of release from imprisonment for a prior offense. Finally, 14.5 percent of crack cocaine defendants (compared to 6.6% of the powder cocaine defendants) are both under a pre-existing sentence when they commit their offense and commit the new offense within two years of a release for a prior sentence.

Table 14

Table 15

2. Weapons

Another element of dangerousness includes the involvement of weapons in drug trafficking offenses. Under the guidelines, drug trafficking defendants receive a sentence enhancement if they or someone with them possess a weapon in connection with the offense. The weapon need not be present during the commission of the crime so long as it is in reasonable proximity to the place and time that conduct relevant to the drug trafficking occurred. USSG 2D1.1(b)(1) and Comment. (N.3). Some defendants are convicted under 18 U.S.C. 924(c) which mandates a five-year mandatory consecutive sentence for use of a weapon in relation to a drug offense.

Table 16 examines the application of these sentence enhancements for weapons by the type of drug involved in the offense. Most drug defendants (83.5%) do not receive a weapon adjustment. However, this percentage decreases when the primary drug involved is either crack cocaine or methamphetamine. The guideline weapon enhancement is applied to 13.9 percent of crack defendants, 13.1 percent of methamphetamine defendants, and 8.8 percent of powder offenders. The charge for possession of a weapon under section 924(c) is applied to 14.0 percent of crack cases, 9.9 percent of methamphetamine cases, and 6.3 percent of powder defendants.

3. The Effectiveness of Current Policy in Targeting Dangerous Offenders

When Congress established the 100-to-1 quantity ratio, the sentencing guideline system was not yet in place. Both Congress in passing mandatory minimums penalty statutes and the Commission in its guidelines have targeted dangerous offenders for lengthier terms of imprisonment. The result of these dual efforts, however, is a complicated system of overlapping statutes and guidelines. The two systems use different criteria to target the most dangerous defendants.

The data show that the form of cocaine involved in an offense is not as accurate an index of a defendant's dangerousness (e.g., criminal record, weapon possession) as are the guideline enhancements designed explicitly to capture these characteristics. Hence, while more crack offenders have prior records than do other drug offenders, 44 percent have either minor records or none at all. Furthermore, while more crack offenders possess a weapon in connection with their offense than other drug offenders, 72 percent do not. All defendants who receive enhanced sentences for dangerousness under the guidelines actually have more serious prior records or show other evidence of greater risk; this is not the case for defendants punished by the 100-to-1 quantity ratio.

The application of lengthy penalties to all persons based solely on whether they fit the statute-defined criteria (drug type and amount) results in a problem that is common to all mandatory

Table 16

minimum statutes - unwarranted uniformity. See Stephen J. Schulhofer, "Assessing the Federal Sentencing Process: The Problem is Uniformity, Not Disparity," 29 American Crim. Law Rev. 833 (1992). Offenders who differ in terms of danger to the community, culpablity, or other ways relevant to the purposes of sentencing but not listed in the statute, are treated the same. This "tariff" approach to sentencing was rejected historically because too many important distinctions among defendants were obscured by the single, flat approach. Sentencing guidelines were intended to permit more sophisticated, calibrated gradations among offenses and offenders than are possible in a broad statutory system. For a full discussion of the "tariff" effect of mandatory minimum penalty statutes, see U.S. Sentencing Commission, Special Report to Congress: Mandatory Minimum Penalties in the Criminal Justice System (Aug. 1991).


As reviewed in Chapter 6, Congress was particularly concerned when it enacted the cocaine penalties to single out the most culpable defendants for lengthy terms of imprisonment. In general, the higher-level drug dealers were to get at least ten years in prison, the middle-level dealers at least five. At the same time, Congress mandated that crack defendants receive relatively harsher penalties because of the perceived heightened harmfulness of crack. Thus, both quantity and type of drug involved in the offense were used in the statute as proxies for different levels of culpability.

The culpability of a defendant is an important consideration at sentencing for a number of reasons. The seriousness of an offender's crime depends in part on how responsible that particular person is for the harms that flow from the crime. For example, defendants trafficking in particularly harmful drugs are considered more culpable than those trafficking in drugs that are relatively less dangerous. Likewise, major dealers in drug trafficking operations - those who mastermind the crime, direct the activities of others, and stand to reap the profits - are considered more blameworthy than the underlings who know less, control fewer of the operations, and make much less money. Leaders are less easily replaced than workers, and imprisoning them for longer periods is more disruptive to the criminal organization. Finally, leaders are more likely to weigh the costs of a crime against its benefits, and thus to be deterred by lengthy terms of imprisonment. For all these reasons, targeting the most culpable defendants for more severe punishment is an important purpose of sentencing.

As described in Chapter 4, drug trafficking activities include many steps (e.g., growing, processing, importing, refining, packaging, and selling, from wholesale amounts to retail street deals). Drug distribution usually involves many persons, each performing one or more tasks. In some circumstances, the different roles are well defined and exist within an organizational structure. In other cases, a small number of persons may perform a number of activities as independent entrepreneurs, linked temporarily into a quasi-organization for the purpose of furthering their mutual goal - profit.

1. The Guideline Role Adjustment

The sentencing guidelines adjust for a defendant's role in the offense, increasing the sentence for organizers, leaders, managers, or supervisors and decreasing it for those with minor roles. Most drug trafficking defendants (73.5%) receive no aggravating or mitigating role adjustment at sentencing. The mitigating role adjustment is granted least often for crack cocaine defendants (8.7%), while approximately ten percent of defendants receive an aggravating role adjustment regardless of the drug type.

The guideline role adjustment is not intended to measure a defendant's function within a drug trafficking organization or a defendant's culpability relative to the entire drug distribution system. This is because the adjustment is made relative to the scope of trafficking that the defendant is held accountable for under the relevant conduct guideline. For example, a retail street dealer at the bottom of a multi-state trafficking organization would not necessarily be granted an adjustment for minor role if he/she was indicted alone and was held accountable only for the drugs he/she personally sold. For this particular offense, the defendant was not a minimal or minor participant.

2. Analyzing Defendants' Functions Within Drug Organizations

The Commission conducted a special study in 1993 to more completely assess defendants' functions within drug organizations. Defendants were classified by their drug distribution activities in two dimensions: 1) geographic range, e.g., international, interstate, intrastate (and local); and 2) function, e.g., courier, mule, street-level, mid-level, and upper-level. The four-level classification scheme was constructed from codes that identified each defendant in terms of the role he/she played in the distribution organization. Upper-level includes: high-level dealers/importers, financiers, growers/manufacturers, and pilots. Mid-level includes: mid-level dealers or broker, steerers, or go-betweens. Street-level includes only street-level dealers or bodyguards. The final category includes couriers and mules. Not included in this analysis are defendants described as gofer/off-loaders, renters, enablers, or users. This information was coded from a five-percent stratified random sample of drug cases sentenced during FY 1992.

a. Geographic Range of Activity

As shown in Table 17, the geographic scope of activity for crack cocaine cases is largely limited on the local level (76.8%), at a rate nearly twice that of powder cocaine, the drug with the next highest rate (39.0%). This confirms what the literature reviewed in Chapter 5 concluded: cocaine is generally distributed in powder form until it is close to the point of retail sale. Interstate activity by crack cocaine defendants was uncommon (14.6%) and international activity was

Table 17

extremely rare (1.3%). For other drugs, approximately 50 percent or more of defendants were involved in interstate or international drug trafficking activities (powder cocaine 49.4%, heroin 62.8%, marijuana 64.7%). Methamphetamine defendants in the sample were not active in international trafficking; however, 35.4 percent were involved in interstate trafficking activities.

b. Defendant Function

Table 18 shows for five drug types the number and percent of defendants with various functions in the drug distribution organization. Among cocaine offenders generally, relatively few are classified as high level (9.2% and 5.5% for powder and crack, respectively.) Reflecting international and interstate trafficking patterns, 21.6 percent of the powder cocaine cases involve mules and couriers. The highest percentage of powder cocaine defendants are mid-level (38.2%), followed by street-level (31.2%). The majority of crack defendants, however, are street-level (59.6%).

c. Profits to be Reaped

Drug quantities specified in the mandatory minimum statutes are incorporated into the system of guidelines offense levels, which are in turn linked to months of imprisonment. Table 19 shows the street value, as determined by the Drug Enforcement Administration, of the quantity of various drugs associated with particular offense levels. First offenders at level 14 are subject to 15-21 months of imprisonment based solely on drug quantity (other guideline adjustments may increase or decrease the sentence). A marijuana defendant with an offense level of 14 would have been dealing drugs worth $42,000. A powder cocaine defendant at the same offense level would have been dealing cocaine worth about $2,675. A crack dealer would have been dealing $29 worth of crack. At guideline level 32, first offenders receive more than ten years of imprisonment. Dealers of drugs other than crack would be involved with between $500,000 and $8 million worth of drugs at level 32. Crack offenders would be involved with around $5,750 of crack at the same ten-year level.

3. Assessing the Real Offense in Crack Cocaine Possession Cases

Under the mandatory minimums and the guidelines, crack possessors are treated the same as crack distributors if they have amounts above the statutory threshold (five grams for first offenders; as little as one gram for repeat offenders.) Congress believed that persons with these amounts were likely to be engaged in distribution and deserved to be sentenced as such.

To discover if these crack defendants are in fact engaged in distribution, the Commission examined all 1993 crack possession cases with a base offense level indicating possession of more than the statutory minimum amount. Of the 32 defendants who fit this criteria, 24 were originally indicted for distribution, and pleaded to (or, in some cases, were found by a jury guilty of) only

Table 18

Table 19

simple possession. This finding suggests that most of these offenders are engaged in distribution. Given that 25 of these offenders were identified as having a substance abuse problem or addiction, they may fit the typical pattern of a user/dealer, described in Chapter 4.

For comparison, the Commission examined a random sample of 34 powder cocaine simple possession cases. In 18 of these cases, the defendant had originally been indicted for distribution.

As described above, crack possessors have a mean sentence of 30.6 months and a median of 9.5 months. Most powder defendants are sentenced to probation, in some cases with drug treatment and testing as a condition of supervision.

4. Flattening and Inversion of Penalties

Crack's unique distribution pattern, in combination with the 100-to-1 quantity ratio, can lead to anomalous results in which retail crack dealers get longer sentences than the wholesale drug distributors who supply them the powder cocaine from which their crack is produced. The following example from a recent federal case illustrates this sentencing anomaly:

Two defendants purchased approximately 255 grams of powder cocaine from their supplier, returned home, and "cooked" the powder cocaine, producing approximately 88 grams of crack cocaine. Unhappy with the amount of crack produced (typically the yield would been about 200 grams), the defendants called their supplier and complained. The supplier agreed to replace the 255 grams of powder cocaine at no additional cost. The defendants returned to their supplier with the 88 grams of crack in their possession and were arrested prior to completing the transaction.

At sentencing, the supplier's guideline sentencing range (a first-time offender) for selling the 255 grams of powder is 33 to 41 months' imprisonment; the range for the defendants (also first-time offenders) who bought a portion of the supplier's powder and cooked it is 121 to 151 months. In addition, the two crack defendants are subject to a mandatory minimum penalty of ten years, while the supplier who sold them the powder cocaine is subject to no statutory minimum penalty. U.S. Sentencing Commission, Hotline Database, (Nov. 1994).

This case, while extreme in its details, is not atypical of the inversion of penalties between high-and low-level distributors caused by the 100-to-1 quantity ratio.

In more general terms, in order to receive a five-year mandatory minimum sentence, a crack dealer must traffic only in five grams of crack. Five grams of crack represents 10-50 doses of crack, with an average retail price of $225-$750 for the total five grams. In contrast, a powder cocaine dealer must traffic in 500 grams of powder cocaine in order to receive the same five-year sentence. The 500 grams of powder cocaine represent 2,500-5,000 doses, with an average retail price of $32,500-$50,000 for the 500 grams.

Viewed another way, the 500-gram quantity of powder cocaine that can send one powder cocaine distributor to prison for five years can be distributed to up to 89 different street dealers who, if they chose to turn it into crack cocaine, could make enough crack to trigger the five-year penalty for each defendant.

Using the sample of cocaine cases described above, we determined the average sentence presently imposed on offenders by function and range of activity. Figure 10 shows that local-level crack dealers get average sentences quite similar to intrastate and interstate powder cocaine dealers. Both intra- and interstate crack dealers get average sentences longer than international powder cocaine traffickers. (There are too few international crack traffickers to include in these estimates.) Figure 11 shows that crack dealers at the street- and mid-levels receive longer sentences than their powder counterparts, and crack street dealers get average sentences almost as long as the mid-level powder brokers and suppliers from whom they get their drugs.

Figure 10

Figure 11

United States Sentencing Commission