Crack/Powder Cocaine Disparity

[Courtesy of The Sentencing Project] The day after the Supreme Court affirmed a judge's decision to sentence below the guideline range based on the unfairness of the crack cocaine sentencing disparity, the United States Sentencing Commission today voted unanimously to make retroactive its recent guideline amendment on crack cocaine offenses. The USSC's decision now makes an estimated 19,500 persons in prison eligible for a sentence reduction averaging more than two years. Releases are subject to judicial review and will be staggered over 30 years. The Sentencing Project applauds the USSC for responding at this heightened time of public awareness about excessive penalties and disparate treatment within the justice system. "The Commission's decision marks an important moment not only for the 19,500 people retroactivity will impact, but for the justice system as a whole," stated Marc Mauer, Executive Director of The Sentencing Project. "Today's action, combined with the Court's decision yesterday, restores a measure of rationality to federal sentencing while also addressing the unconscionable racial disparities that the war on drugs has produced." The Sentencing Project estimates that once the sentencing change is fully implemented, there will be a reduction of up to $1 billion in prison costs. Because African Americans comprise more than 80% of those incarcerated for crack cocaine offenses, the sentencing reform will also help reduce racial disparity in federal prisons. The Commission sets the advisory guideline range that federal judges use when sentencing defendants. In May the Commission recommended statutory reforms and proposed to Congress an amendment to decrease the guideline offense level for crack cocaine offenses. The amendment went unchallenged by Congress and went into effect on November 1st. The Commission's action today makes that guideline change retroactive to persons sentenced prior to November 1st. The guideline changes do not affect the mandatory minimum penalties that apply to crack cocaine, which can only be addressed through Congressional action. "Justice demands that Congress take the next step and eliminate the harsh mandatory minimums for low-level crack cocaine offenses," said Mauer. The Commission's vote comes a day after the United States Supreme Court ruled 7-2 in Kimbrough v. United States that a federal district judge's below-guideline sentencing decision based on the unfairness of the 100 to 1 quantity disparity between powder and crack cocaine was permissible. In June, Sen. Joseph Biden introduced the Drug Sentencing Reform and Kingpin Trafficking Act of 2007, legislation which would equalize the penalties for crack and powder cocaine offenses. Biden's bill, S. 1711, aims to shift federal law enforcement's focus from street-level dealers towards high-level traffickers.

[Ed: Good to see the vote was unanimous -- someone tell Hillary Clinton. I heard the executive director of the Sentencing Commission speak at a conference last spring, and she was very passionate about wanting to see good things happen. It looks like the commissioners felt the same way. I've pasted here a few releases and announcements from various groups about this below. - Dave] News Release U.S. Sentencing Commission One Columbus Circle NE Washington, DC 20002-8002 For Immediate Release December 11, 2007 U.S. SENTENCING COMMISSION VOTES UNANIMOUSLY TO APPLY AMENDMENT RETROACTIVELY FOR CRACK COCAINE OFFENSES Effective Date for Retroactivity Set for March 3, 2008 WASHINGTON, D.C. (December 11, 2007) — The United States Sentencing Commission unanimously voted today to give retroactive effect to a recent amendment to the Federal Sentencing Guidelines that reduces penalties for crack cocaine offenses. Retroactivity of the crack cocaine amendment will become effective on March 3, 2008. Not every crack cocaine offender will be eligible for a lower sentence under the decision. A Federal sentencing judge will make the final determination of whether an offender is eligible for a lower sentence and how much that sentence should be lowered. That determination will be made only after consideration of many factors, including the Commission’s direction to consider whether lowering the offender’s sentence would pose a danger to public safety. In addition, the overall impact is anticipated to occur incrementally over approximately 30 years, due to the limited nature of the guideline amendment and the fact that many crack cocaine offenders will still be required under Federal law to serve mandatory five- or ten-year sentences because of the amount of crack involved in their offense. On November 1, 2007, after a six-month congressional review period, the Commission’s amendment to the Federal sentencing guidelines for crack cocaine offenses took effect. The amendment was intended as a step toward reducing some of the unwarranted disparity currently existing between Federal crack cocaine and powder cocaine sentences. The Sentencing Reform Act of 1984 specifically authorized the Commission to provide for retroactive effect of amendments that result in lower penalties for classes of offenses or offenders, as this amendment could. The Commission made its decision on retroactivity of the crack cocaine amendment after months of deliberation and years of examining cocaine sentencing issues. It solicited public comment on the issue of retroactivity and received over 33,000 letters or written comments, almost all of which were in favor of retroactivity. Last month, it held a full-day hearing on the issue of retroactivity and heard from key stakeholders in the federal criminal justice community. The Commission considered a number of factors during its deliberations, including the purpose for lowering crack cocaine sentences, the limit on any reduction allowed by the amendment, whether it would be difficult for the courts to apply the reduction, and whether making the amendment retroactive would raise public safety concerns or cause unwarranted sentencing disparity in the federal system. Ultimately, the Commission determined that the statutory purposes of sentencing are best served by retroactive application of the amendment. Mindful of public safety and judicial resource concerns, the Commission today issued direction to the courts on the limited nature of this and all other retroactive amendments and on the need to consider public safety in each case. The Commission delayed the effective date of its decision on retroactivity in order to give the courts sufficient time to prepare for and process these cases. The Commission’s actions today, as well as promulgation of the original amendment for crack cocaine offenses, are only a partial step in mitigating the unwarranted sentencing disparity that exists between Federal powder and crack cocaine defendants. The Commission has continued to call on Congress to address the issue of the 100-to-1 statutory ratio that drives Federal cocaine sentencing policy. Only Congress can provide a comprehensive solution to a fundamental unfairness in Federal sentencing policy. The Commission has consistently expressed its readiness and willingness to work with Congress and others in the criminal justice community to address this very important issue. The bipartisan United States Sentencing Commission, an independent agency in the judicial branch of the federal government, was organized in 1985 to develop national sentencing policy for the federal courts. The resulting sentencing guidelines help to ensure that similar offenders who commit similar offenses receive similar sentences. http://www.ussc.gov/PRESS/rel121107.htm

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For Immediate Release Date: December 11, 2007 Sentencing Commission votes in favor of crack cocaine retroactivity WASHINGTON, D.C.: Families Against Mandatory Minimums (FAMM), the nation's leading sentencing reform organization with 13,000 members -- many of whom are incarcerated people and their families -- praises the U.S. Sentencing Commission for its courage and leadership on improving crack cocaine sentencing policies for future defendants and current prisoners. Today in an historic vote, the Commission agreed to allow prisoners serving crack cocaine sentences to seek sentence reductions that went into effect on November 1. Retroactivity will affect 19,500 federal prisoners, almost 2,520 of whom could be eligible for early release in the first year. Federal courts will administer the application of the retroactive guideline, which is not automatic. Courts may refuse to grant sentence reductions to individuals if they believe they could pose a public safety risk. "The Sentencing Commission made the tough but fair decision to remedy injustice, showing courage and leadership in applying the guideline retroactively. Clearly, justice should not turn on the date an individual is sentenced,” said Julie Stewart, president and founder of FAMM. "Retroactivity of the crack guideline not only affects the lives of nearly 20,000 individuals in prison but that of thousands more - mothers, fathers, daughters and sons - who anxiously wait for them to return home," said Stewart. Many FAMM members, including Lamont and Lawrence Garrison, will benefit from retroactivity. Arrested just months after graduating from Howard University, Lamont received 19 years and Lawrence received 15 years, respectively, after being accused of conspiring to distribute crack and powder cocaine. Both brothers could receive sentence reductions of between three and four years. The U.S. Sentencing Commission has repeatedly advised Congress since 1995 that there is no rational, scientific basis for the 100-to-1 ratio between crack and powder cocaine sentences. The Commission has also identified the resulting disparity as the "single most important" factor in longer sentences for blacks compared to other racial groups. Yesterday, the Supreme Court ruled that judges can consider the unfairness of the 100-to-1 ratio between crack cocaine and powder cocaine sentences and may impose a sentence below the crack guideline in cases where the guideline sentence is too severe. However, neither the new guideline nor its retroactivity changes the statutory mandatory minimums that retain the 100-to-1 quantity disparity between crack and powder cocaine. "To insure equal justice for all defendants, Congress must act to address the mandatory minimums that created the cocaine sentencing disparity in 1986," said Stewart. FAMM spearheaded the effort to make the crack cocaine guideline change apply to people already in prison, helping generate over 33,000 letters to the Sentencing Commission in support of retroactivity. FAMM members from across the country also attended the Commission's public hearing on retroactivity in Washington, D.C. on November 13 and the vote on December 11, bearing photographs of their incarcerated loved ones. Families Against Mandatory Minimums (FAMM) advocates for fair and proportionate sentencing laws. For more information, visit www.famm.org or email [email protected].

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UNITED STATES SENTENCING COMMISSION APPROVES CRACK REFORM FOR FEDERAL PRISONERS The day after the Supreme Court affirmed a judge's decision to sentence below the guideline range based on the unfairness of the crack cocaine sentencing disparity, the United States Sentencing Commission today voted unanimously to make retroactive its recent guideline amendment on crack cocaine offenses. The USSC's decision now makes an estimated 19,500 persons in prison eligible for a sentence reduction averaging more than two years. Releases are subject to judicial review and will be staggered over 30 years. The Sentencing Project applauds the USSC for responding at this heightened time of public awareness about excessive penalties and disparate treatment within the justice system. "The Commission's decision marks an important moment not only for the 19,500 people retroactivity will impact, but for the justice system as a whole," stated Marc Mauer, Executive Director of The Sentencing Project. "Today's action, combined with the Court's decision yesterday, restores a measure of rationality to federal sentencing while also addressing the unconscionable racial disparities that the war on drugs has produced." The Sentencing Project estimates that once the sentencing change is fully implemented, there will be a reduction of up to $1 billion in prison costs. Because African Americans comprise more than 80% of those incarcerated for crack cocaine offenses, the sentencing reform will also help reduce racial disparity in federal prisons. The Commission sets the advisory guideline range that federal judges use when sentencing defendants. In May the Commission recommended statutory reforms and proposed to Congress an amendment to decrease the guideline offense level for crack cocaine offenses. The amendment went unchallenged by Congress and went into effect on November 1st. The Commission's action today makes that guideline change retroactive to persons sentenced prior to November 1st. The guideline changes do not affect the mandatory minimum penalties that apply to crack cocaine, which can only be addressed through Congressional action. "Justice demands that Congress take the next step and eliminate the harsh mandatory minimums for low-level crack cocaine offenses," said Mauer. The Commission's vote comes a day after the United States Supreme Court ruled 7-2 in Kimbrough v. United States that a federal district judge's below-guideline sentencing decision based on the unfairness of the 100 to 1 quantity disparity between powder and crack cocaine was permissible. In June, Sen. Joseph Biden introduced the Drug Sentencing Reform and Kingpin Trafficking Act of 2007, legislation which would equalize the penalties for crack and powder cocaine offenses. Biden's bill, S. 1711, aims to shift federal law enforcement's focus from street-level dealers towards high-level traffickers.

[Courtesy of The Sentencing Project] SUPREME COURT RULES THAT JUDGES MAY CONSIDER HARSHNESS OF CRACK POLICY IN SENTENCING Decision Comes on Eve of U.S. Sentencing Commission Vote to Reduce Crack Sentences for Prisoners The Supreme Court ruled 7 to 2 today that a federal district judge's below-guideline sentencing decision based on the unfairness of the 100 to 1quantity disparity between powder and crack cocaine was permissible. Justice Ruth Bader Ginsburg wrote the decision in the case, Kimbrough v. U.S. (06-6330). "At a time of heightened public awareness regarding excessive penalties and disparate treatment within the justice system, today's ruling affirming judges' sentencing discretion is critical," said Marc Mauer, Executive Director of The Sentencing Project. "Harsh mandatory sentences, particularly those for offenses involving crack cocaine, have created unjust racial disparity and excessive punishment for low-level offenses." The Court's decision in Kimbrough comes at a time of unprecedented interest in reforming the mandatory minimum sentencing policy for crack cocaine offenses. Bipartisan legislation has been introduced in Congress and hearings are expected early next year. Moreover, tomorrow, the U.S. Sentencing Commission is expected to vote on whether its recent sentencing guideline reduction for crack cocaine offenses will apply retroactively to people currently serving time in prison. Review today's decision in Kimbrough at: http://www.scotusblog.com/wp/wp-content/uploads/2007/12/06-6330.pdf

[Courtesy of the Office of U.S. Senator Joe Biden, Jr.] FOR RELEASE: November 5, 2007 CONTACT: Elizabeth Alexander, 202-224-5042 ABA Endorses BIDEN Bill to Eliminate Crack/Powder Cocaine Sentencing Disparity American Bar Association Applauds Biden’s Leadership on Sentencing Reform and Urges Senators to Support Biden Bill Washington, DC – The American Bar Association recently announced its “strong support” for Senator Joseph R. Biden, Jr.’s (D-DE) Drug Sentencing Reform and Cocaine Kingpin Trafficking Act of 2007 and “urge[d]” Senators to support the bill. Sen. Biden’s legislation would completely eliminate the sentencing disparity between crack and powder cocaine, two forms of the same drug, and it would also abolish the mandatory minimum sentence for simple possession of crack cocaine, the only drug for which there exists a mandatory minimum sentence for mere possession for a first time offender. “Over twenty years ago, Congress enacted a sentencing scheme that punishes crack cocaine offenses far more severely than powder cocaine offenses," said Sen. Biden. "This is a terrible flaw in the criminal justice system. It’s based on the bogus notion that the crack form of cocaine is more dangerous and crack users are more violent than powder uses. And that logic just hasn’t played out.” Currently, under the so-called “100-to-1” cocaine sentencing disparity it takes 100 times more powder cocaine than crack to trigger the five- and ten-year mandatory minimum sentences under federal law. In other words, powder cocaine offenders who traffic 500 grams of powder (2,500-5,000 doses) receive the same five-year mandatory minimum sentence as crack cocaine offenders who simply possess just 5 grams of crack (10-50 doses). “I applaud and appreciate the American Bar Association’s decision to stand with me on this important issue,” said Sen. Biden. “It’s time for Congress to act in a real way. The current 100:1 disparity is unjust, unfair, and the time has long past for it to be undone. I look forward to working with the ABA and others to enact my bill into law.”

FOR IMMEDIATE RELEASE Contact: [email protected] Washington, DC – The American Civil Liberties Union today praised the U.S. Sentencing Commission (USSC) for taking action to bring the guideline ranges for crack cocaine federal sentences back in line with the mandatory minimum statute. As a result of the previous guidelines, crack cocaine defendants sentenced to the mandatory minimums often served many more months than required by the law for their offense. The ACLU now calls upon the USSC to make such changes retroactive, joining a growing chorus of organizations and individuals who believe such changes are an important step toward parity and justice in cocaine sentencing. "A retroactive change in the guidelines would offer relief to thousands of defendants who, because of the inconsistency caused by the sentencing guidelines, received sentences higher than the mandatory minimum," said Jesselyn McCurdy, legislative counsel for the ACLU Washington Legislative Office. "For the sake of consistency and basic fairness under the law, this change must be retroactive. "There is a widespread perception, particularly in African-American communities, of racial bias within the criminal justice system. For example, drug sentencing guidelines impacting other racial groups, such as those involving LSD, marijuana, and oxycodone, have been made retroactive by the commission in the past. Such perceptions of racial bias would only be magnified if corrected sentencing guidelines for crack cocaine offenses aren't also made retroactive." Neither the new guidelines nor their retroactivity will impact the statutory 100-to-1 quantity disparity between crack and powder cocaine, identified by the USSC as the "single most important" factor accounting for longer sentences imposed on African-Americans relative to other racial groups. The ball is in Congress’ court to make the statutory fix, and the USSC has expressed its firm desire "for prompt congressional action." As an interim measure, however, making the USSC’s proposed guidelines retroactive would be a significant step towards correcting over two decades of injustice in cocaine sentencing.

[Courtesy of The Sentencing Project] Friends, At a time of growing national concern about unequal treatment within the justice system, the United States Sentencing Commission today lowered the Guideline sentences for offenses involving crack cocaine, likely impacting 3,500 federally sentenced defendants each year. Commission concerns about the excessive penalty structure for crack cocaine offenses prompted the change that on average will reduce defendants' sentences by 15 months. The Commission sets an advisory guideline range that federal judges use when sentencing defendants. Under the old range, average sentences for crack cocaine offenses were 121 months. Now the estimated average sentence will be 106 months. In May the Commission recommended statutory reforms and proposed to Congress the amendment to decrease the guideline offense level for crack cocaine offenses. The amendment went unchallenged by Congress and therefore takes effect today. According to Commission analysis, the modification would reduce the size of the federal prison population by 3,800 in 15 years. Such a reduction would result in savings of over $87 million, according to The Sentencing Project. This change, however, only addresses one aspect of the controversy surrounding crack cocaine sentencing. The Commission is currently considering whether to apply the amendment retroactively - a move that would make approximately 19,500 persons in prison eligible for a reduced sentence. The Commission will hear testimony on this issue at a Nov. 13 public hearing at which I will testify in favor of retroactivity. In a submission to the Commission, The Sentencing Project argues that "the Commission, courts, and commentators all have recognized the undue disparity caused by the Guidelines since their inception. Thus, defendants who were incarcerated when the problems with the crack Guidelines first became evident should also be granted an opportunity to pursue the benefit of this long overdue remedy." The new policy comes on the heels of oral arguments before the U.S. Supreme Court in Kimbrough v. the United States. The high court is being asked to uphold the authority of federal judges to depart from the sentencing guidelines in crack cocaine cases when they disagree with sentencing policy. Furthermore, bipartisan reform legislation is pending in Congress and hearings addressing the statutory mandatory minimum sentences are expected this fall. Use the following links to read The Sentencing Project's letter to the Commission urging retroactivity, and learn more about the momentum to end the sentencing disparity at: www.sentencingproject.org/crackreform. Regards, Marc Mauer

[Courtesy of The Sentencing Project] At a time of heightened public awareness regarding excessive penalties and disparate treatment within the justice system, the United States Supreme Court will hear oral argument tomorrow in a case that touches on the controversial crack cocaine sentencing debate. The case, Kimbrough v. United States, explores the reasonableness of a federal district judge's below-guideline sentencing decision based on the unfairness of the 100 to 1 quantity disparity between powder and crack cocaine. The Sentencing Project submitted an amicus brief on behalf of the petitioner, Derrick Kimbrough, which argues that current drug guidelines inappropriately limit the factors that judges may consider at sentencing. Mr. Kimbrough's case stems from his 2005 guilty plea in Norfolk, VA, for possession with intent to distribute 56 grams of crack cocaine and possession of a firearm. Kimbrough, a Desert Storm veteran with no previous felony convictions, was prosecuted in federal court where penalties involving crack cocaine are harsher than in state systems. As a result, instead of receiving a sentence of about 10 years under Virginia law, he faced a federal sentencing guideline range between 19 and 22 years. Federal District Judge Raymond A. Jackson, who presided over Kimbrough's case, called the recommended guideline sentence "ridiculous" and instead sentenced Kimbrough to 15 years, the minimum required by mandatory sentencing policies. Tomorrow, the Court will consider whether Judge Jackson's decision was "reasonable" according to federal sentencing standards. For more information, visit www.sentencingproject.org/crackreform or download the amicus brief at http://sentencingproject.org/Admin/Documents/publications/dp_kimbrough.pdf.

The Sentencing Project and coalition partners, the American Civil Liberties Union, Open Society Institute and Drug Policy Alliance, have launched It's Not Fair. It's Not Working, a national campaign to educate the public about the crack and powder cocaine sentencing disparity. The goal is to encourage the American public to make their voices heard in order to reform the mandatory penalties for crack and powder cocaine offenses to make them more equitable and fair. An important element of the initiative will be to engage the public through events such as town hall meetings, national conferences, hearings and other opportunities. All activities will be designed to educate and raise awareness. The It's Not Fair. It's Not Working campaign will also feature three advertisements: It's Not Fair (http://sentencingproject.org/tmp/File/Crack/Garrison_Ad%20(2c).pdf) features Karen Garrison, mother of twin sons who received long sentences for non-violent crack cocaine offenses just months after they graduated from college. Something's Wrong with the Math (http://sentencingproject.org/tmp/File/Crack/c_Chalkboard_Ad.pdf) points out that an individual only needs to possess 5 grams of crack cocaine to receive the same 5 year mandatory sentence as someone who sells 500 grams of powder cocaine. There's a Crack in the System (http://sentencingproject.org/tmp/File/Crack/c_SystemAd.pdf) supports the American ideal of a fair and appropriate sentencing system while at the same time informing the public that possessing a small amount of crack cocaine can carry an excessive penalty. Today a new consciousness about the unfairness and ineffectiveness of harsh crack cocaine mandatory sentences has emerged among advocates, policymakers, judges and the United States Sentencing Commission. At a time of bipartisan interest in this issue, Congress may be on the verge of mending the crack injustice. Since May, three bills have been introduced in the Senate that would reduce sentences for low-level crack cocaine offenses: · Senator Joseph Biden (D-DE) for the first time introduced a bill to equalize penalties for crack and powder cocaine offenses. · Senator Orrin Hatch's (R-UT) new proposal would reduce the sentencing disparity between crack and powder by raising the trigger weight for a five-year mandatory crack sentence from five grams to 25 grams. · Senator Jeff Sessions' (R-AL) bill would reduce the sentencing disparity also but expand mandatory sentencing for powder cocaine offenses. The Sentencing Project is actively working to advance crack cocaine sentencing reform in Congress this year. The support of national, state and local organizations is critical to our efforts. We urge organizations to endorse a sign-on letter to U.S. House and Senate Judiciary members calling for legislation eliminating mandatory minimum sentences for low-level crack cocaine offenses. You can submit your organization's endorsement of the crack cocaine sentencing reform letter at: http://www.sentencingproject.org/Contact.aspx. Please include your organization's name, the name and title of signer, and the signer's e-mail address and phone number. For more information about It's Not Fair. It's Not Working, and The Sentencing Project's work to end the sentencing disparity between crack cocaine and powder cocaine, go to www.sentencingproject.org/crackreform.