Chipping Away at Crack Sentencing Disparity

The first step toward eliminating the much-reviled 100-to-1 crack-to-powder-cocaine sentencing scheme will take effect tomorrow, Nov. 1, when federal sentencing guidelines for crack will decrease by an average of 16 months for most defendants.

The new rules, adopted by the U.S. Sentencing Commission earlier this year, downgrade possible punishments for crack by two so-called “guideline levels” and are expected to effect 80% of all federal crack defendants, said Mary Price, general counsel and vice president of the nonprofit group Families Against Mandatory Minimums, which has been at the forefront of the fight against disparate sentencing for crack-cocaine defendants. Notably, however, the new guidelines do not effect mandatory-minimums – rather, they effect all cases that fall above and below the mandatory sentence triggers, and they are not retroactive – although the commission is preparing to tackle the question of whether they should be. If they were to be applied retroactively, Price says that approximately 19,500 current federal inmates would be eligible to have their sentences reduced – including some 1,500 inmates that would be eligible for immediate release.

In the 1980s when crack mania took hold (fueled, in no small way, by media-fed moral panic), lawmakers decided defendants nabbed for using or dealing the drug should be punished with more lengthy sentences – even though crack is nothing more than a chef’s reduction of powder cocaine. The sentiment was codified in the mandatory minimum sentencing scheme, which provides for a mandatory five-year prison term for anyone convicted for even mere possession of five grams of crack cocaine. In contrast, under the man-min sentencing structure it would take possession of 500 grams of powder cocaine to net the same five-year turn in the pen (and remember, in the federal system there is no parole). And so the 100-to-1 crack-powder ratio was born. Unfortunately, these same harsh penalties for crack were carried over into the sentencing guidelines, set up by the quasi-independent U.S. Sentencing Commission, which has been tasked since 1984 with devising punishment ranges for all federal crimes – ostensibly as a way to ward off wildly disparate sentences across jurisdictions and among defendants that, at least on their face, are similarly situated. Initially, the sentencing guidelines were mandatory – in other words, judges were prohibited from treating each defendant and each case as unique and were hemmed in by what the guidelines said an offense was worth in time behind bars. That changed in 2005, however, when the U.S. Supreme Court ruled that making the guidelines mandatory was unconstitutional; instead, they said, they were merely “advisory.” (That ruling has created its own headache, and in two cases currently pending before the high court the justices will have to decide whether it’s possible to be both mandatory and advisory at the same time.)

While the ruling in that case (styled U.S. v. Booker) has provided some feeling of relief among foes of the kind of cookie-cutter justice the guidelines have in many instances come to represent, it hasn’t done anything to change the man-min scheme, which is still alive and well. Washington, D.C., mother Karen Garrison knows well the devastating effects of crack hysteria, man-mins and one-size-fits-all justice. In 1997 her two sons, Lamont and Lawrence, then recent graduates of Howard University, were fingered as crack dealers by a so-called “kingpin” looking to mitigate his own sentence, and were charged as crack dealing conspirators, convicted, and sentenced to lengthy terms in the pen – 19 years and 15 years, respectively. They were first-time offenders, with absolutely no criminal background – the only evidence against them was the word of the dealer. (In essence, Garrison says the dealer only knew the boys because they happened to be in the wrong place at the wrong time.)

If the downgraded guidelines were made retroactive, the Garrison boys would be eligible to have between two and three years knocked off their terms, meaning Lawrence could be released in 2009. FAMM advocates say that making the guidelines retroactive is the only way to make the new rules truly fair – Commissioners looked at current sentences in concluding that they have unfairly targeted low-level minority offenders and that there was an “urgent and compelling” need to change the guidelines. It would be “cruelly ironic” for the Commission to recognize the problem and act to correct it only to then “deny [the] benefits” to defendants whose experience they considered in coming to the conclusion that the system is “unjust,” said Price. The Commission made retroactive downgraded sentences for LSD and marijuana possession in the early Nineties, so there is no reason they couldn’t do so now for crack cocaine, she said. The Commission is currently accepting public input on the issue and to date has received feedback from some 10,000 people, Price noted. (To add your voice to the mix, follow the links on FAMM’s website. The public comment period ends tomorrow, Nov. 1, so do it now.)

Still, although the Commission has reduced the penalties for crack in the sentencing guidelines, they haven’t completely done away with the sentencing disparity – what was once 100-to-1 crack-powder scheme is now “all over the place,” says Price, ranging from 20-to-1 up to 80-to-1. Price and FAMM founder Julie Stewart say they’re hoping Congress will now make a move to completely do away with the disparity, by codifying parity in crack and cocaine sentencing, by reducing crack sentences to those in place for powder. Fixing the problem has earned bi-partisan support in Congress, though only one bill, Delaware Democratic Sen. Joe Biden’s S.1711, proposes parity. It’s the approach Price says she’d prefer, but whether it’s “politically practical” is another story. “I’m not so sure that’s going to fly,” she said.