 June
29, 2009 -- Washington Post (DC)
Two Judges Target Cocaine Penalties
Disparity for Crack Crimes Criticized
By Del Quentin Wilber, Washington Post Staff Writer
Federal judges are beginning to equalize punishment for crack
and powder cocaine crimes, resulting in shorter prison terms
for crack dealers and putting pressure on Congress to address
a wide disparity in how the legal system handles cocaine-related
offenses.
In two recent rulings and interviews, a federal judge in the
District and one in Iowa said they had policy differences with
Congress and a judicial commission that they said did not go
far enough to change the guidelines for crack sentences in 2007.
From now on, the judges wrote, they will calculate sentences
for crack offenders by using the more-lenient sentencing guidelines
for powder cocaine crimes.
Recent Supreme Court rulings and supportive statements from
top Justice Department officials paved the way for the judges'
decisions. Nonetheless, such unilateral action from the bench
is unusual. Legal scholars said the decisions highlight the judiciary's
irritation at the slow pace of sentencing reform as Congress
considers the first major revision of crack statutes in decades.
"The decisions are a very big deal, especially if they
start a trend," said Douglas Berman, an Ohio State University
law professor. "The fact that judges are doing this, and
doing it vocally, shows they are frustrated. And it's garnering
attention and could be the catalyst for Congress to act."
In recent years, a general consensus has emerged that crack
sentences and guidelines are too stiff and unfairly affect African
Americans. Attorney General Eric H. Holder Jr. and other Justice
Department officials have said they believe that crack cocaine
sentences are unfair. "It is time to do away with the disparity,"
Holder told Congress this month.
Rep. Robert C. Scott (D-Va.), chairman of the Judiciary subcommittee
that handles such matters, said he expects legislation on crack
sentences by year's end. The House is considering several proposals
to change sentencing laws. "We need to fix this problem,"
he said.
Stiffer penalties for crack offenders were instituted in the
1980s, when many cities, including Washington, were plagued by
violent crime blamed on the drug trade. But over the years, as
sentences were imposed, many criticized the punitive disparity.
The law, passed without much research, dictated a 100-to-1
disparity in punishments for crack and powder cocaine crimes.
So a person convicted of selling five grams of crack generally
draws the same five-year mandatory minimum sentence as someone
convicted of distributing 500 grams of powder cocaine.
When the U.S.
Sentencing Commission, an independent agency in the judicial
branch, eased the guidelines for crack offenders in 2007, it
allowed imprisoned crack offenders to seek leniency. Adjustments
have reduced prison terms by an average of two years for more
than 12,000 crack offenders.
But the two federal judges say that tweak does not go far
enough.
"The unwarranted sentencing disparity between crack and
powder cocaine sentences is one that has been written into the
law and the guidelines, and there is no good reason for that,"
U.S. District Judge Paul L. Friedman of the District's federal
court said.
In his opinion, Friedman declared he would use a "1-to-1"
crack-powder ratio as a starting point in resentencing a convicted
crack dealer, Anthony Lewis, 37, who faced 16 to 19 years under
the old guidelines. The judge, who was already applying a 20-to-1
ratio in crack cases, said he would consider mitigating and aggravating
factors as he applied the 1-to-1 guideline to each case.
In Lewis's case, the 1-to-1 ratio would have reduced his prison
sentence from 13 1/2 years to less than five years, but the law
required at least 10 years. The judge sentenced Lewis to 10 years
and 10 months in prison. The judge cited Lewis's "significant
criminal history" in giving him more prison time than the
mandatory minimum.
Friedman relied heavily on an opinion issued in May by U.S.
District Judge Mark W. Bennett of the Northern District of Iowa,
who used the guidelines for powder cocaine offenses to begin
calculating the sentence of a crack dealer. The dealer eventually
received a sentence within the two guideline ranges.
Both judges cited recent Supreme Court rulings giving the
judiciary greater leeway in sentencing. In January, the Supreme
Court said judges "are entitled to reject and vary categorically
from the crack-cocaine Guidelines based on a policy difference
with those Guidelines."
"I had an absolutely legitimate basis to disagree with
the guidelines on a policy basis," Bennett said in a phone
interview. "I have always been troubled by the disparate
impact of the 100-to-1 ratio."
"I'm optimistic that some judge might agree with me,"
he added. "We might start a trend."
The judges also quoted congressional testimony in April by
Assistant Attorney General Lanny A. Breuer, who said the Justice
Department wants to "completely eliminate" the disparity.
Breuer said crack is not "inherently more addictive a
substance than powder cocaine," adding that authorities
could find no other narcotic "where the penalty structure
differs so dramatically because of the drug's form." Cocaine
powder is usually snorted; crack is created by boiling powder
cocaine into a solid substance and is usually smoked.
Breuer noted that the sentencing gap has punished low-level
crack dealers much more harshly than powder cocaine sellers,
and statistics show that 82 percent of those sentenced in crack
crimes are African Americans. (Blacks account for 27 percent
of powder cocaine offenders.) Such statistics have "fueled
the belief across the country that federal cocaine laws are unjust,"
he said, adding that most states do not treat the two forms of
cocaine differently.
Justice Department officials declined to be interviewed for
this article, but they are unlikely to appeal the recent rulings.
A former U.S. attorney for the District, Jeffrey A. Taylor,
a Republican appointee, said prosecutors are concerned that judges
will begin adopting their own sentencing standards.
He added that prosecutors also are uneasy about the possibility
that Congress would reduce the sentences for crack offenses to
the level of powder offenses. That would allow dealers to handle
nearly 500 grams of crack before risking a mandatory minimum
sentence of five years. To alleviate some of the disparity, Taylor
said, prosecutors would like Congress to ease up on crack while
toughening powder cocaine sentences.
"No one in this town traffics in 500-gram quantities
of crack, and we wouldn't want them to start," he said.
"The dealers know exactly where these levels are set, and
they will adjust their behavior accordingly."
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