Federal Cocaine Sentencing in Transition

Abstract

No issue in the world of federal sentencing has sparked more controversy or engendered more criticism than the punishment scheme for crack and powder cocaine. Congress set forth the basic crack and powder policy more than twenty years ago in a set of mandatory minimum sentencing statutes, producing the now infamous 100-to-1 quantity ratio. The U.S. Supreme Court's recent Booker decision making the Guidelines "effectively advisory" has added a challenging new set of issues for federal judges: what should district judges and circuit judges do when considering suggested Guideline crack sentences that seem excessive, particularly in relation to suggested sentences for comparable powder cocaine offenses? Booker creates a new urgency for debates about the appropriateness of federal cocaine sentencing policy and the judicial discretion to resist that policy in individual sentencing decisions.As highlighted in this Issue, debates over Booker and sentencing fairness are developing into what may become a "perfect storm" paving the way for meaningful reform a generation after Congress produced the 100-to-1 crack/powder ratio that many now consider deeply misguided. In these Observations, we quickly review the current complicated lay of the land and offer our suggestions for a productive path forward.

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“…In essence, Congress had established a 100 to 1 quantity disparity when dealing with crack and powder cocaine, which are essentially the same drug. This 100-to-1 quantity ratio also found expression in a ten-year mandatory minimum punishment level for offenders trafficking in either 50 g of crack cocaine or 5 kg (5,000 g) of powder cocaine (Chanenson and Berman 2007). To target the dealers of crack, the law provided much more severe penalties in respect of individuals charged with possession for sale than for individuals charged with simple possession (Barnes and Kingsnorth 1996), increasing the risks and making the business less attractive for dealers.…”

“…The number of persons awaiting trial or serving a sentence for a drug offense in prison or jail increased more than tenfold from about 40,000 in 1980 to 450,000 in 2004 (Mauer 2005, p. 613). With penalties up to 100 times harsher than the penalties for powder cocaine (Chanenson and Berman 2007), the crack sentencing policies turned out to be one of the most significant contributors to prison overcrowding and the buildup of the American prison industrial complex (Shein, 1993;Schlosser, 1998).…”

“…Criminologists and legal scholars (for example Lowney 1994;Davis 1996;Angeli 1997;DeLisi and Regoli 1999;King and Mauer 2006;Chanenson and Berman 2007) are strongly of the view that the anti-crack laws of the 1980s and 1990s unfairly targeted racial minorities, particularly Blacks. Angeli (1997) acknowledges, for instance, that with Blacks accounting for 88.3% of federal crack distribution convictions in 1993 compared to 4.1% for whites, the impact of the anti-crack laws was felt almost exclusively by black defendants.…”