ACLU Letter Urging Senators to Support S. 1711, the Drug Sentencing Reform and Cocaine Kingpin Trafficking Act of 2007

Document Date: February 4, 2008

On behalf of the American Civil Liberties Union (ACLU), a non-partisan organization with hundreds of thousands of activists and members and 53 affiliates nationwide, we urge you to co-sponsor and support S.1711, the Drug Sentencing Reform and Cocaine Kingpin Trafficking Act of 2007 which would eliminate the unjust and discriminatory 100 to 1 disparity between crack and powder cocaine sentences in federal law.

Currently, the federal crack cocaine law requires that if a person gets caught distributing or possessing 5 grams of crack cocaine, he or she is subject to a five-year mandatory minimum sentence – the same sentence that person would face for distributing 500 grams of powder cocaine. A person convicted of distributing 50 grams of crack cocaine is subject to a ten-year mandatory minimum. It takes 5,000 grams of powder cocaine to receive the same ten-year mandatory sentence. This is often referred to as the federal 100 to 1 disparity between crack and powder cocaine.

S.1711, introduced by Senator Joseph Biden (D-DE) would eliminate the current disparity in federal sentences between crack and powder cocaine offenses. The ACLU supports this legislation because many of the myths associated with determining the 100 to 1 ratio have been proven wrong by recent data. Numerous scientific and medical experts have determined that the pharmacological effects of crack cocaine are no more harmful than powder cocaine. The effect of cocaine on users is the same regardless of form. Thus, federal law should not make a distinction between sentences for selling or possession of the two drugs and equalizing the disparity is the only fair way to address the 100 to 1 ratio.

Senators Hatch (R-UT) and Kennedy (D-MA) and Senator Sessions (R-AL) have also introduced bills that would reduce the federal crack cocaine disparity from 100 to 1 to 20 to 1. Senators Hatch and Kennedy would increase the amount of crack cocaine that would trigger a five-year sentence to 25 grams and the amount that would trigger a ten-year sentence to 250 grams. Senator Sessions’ bill would increase the amount of crack cocaine that would subject a person to the five-year mandatory minimum sentence to 20 grams, but decrease the amount of powder cocaine that would result in a five-year sentence to 400 grams. While we acknowledge the efforts of Senators Hatch, Kennedy and Sessions to reduce the federal crack cocaine disparity, the ACLU supports eliminating the 100 to 1 disparity entirely because there is no justification for treating the drugs differently under the law.

In April 2007, the United States Sentencing Commission (USSC) promulgated amendments to the Federal Sentencing Guidelines that make them more consistent with the statutory mandatory minimums. This guideline amendment became effective November 1, 2007. On December 11, 2007, in a 7-0 unanimous decision, the USSC decided to apply the guideline amendment changes retroactively. This will result in approximately 19,500 prisoners who are serving sentences longer than the five- and ten-year mandatory minimums, as a result of the sentencing guidelines, to be eligible for the sentence they should have received in accordance with the law.

However, even with all these very exciting developments it is important to remember that the USSC’s guideline amendments are only a small step forward in the efforts to reform the federal crack cocaine law. These guideline changes will not eliminate or even significantly alleviate the very long mandatory minimum sentences that many people are serving for crack cocaine offenses. Congress still must act in order to eliminate the statutory 100 to 1 disparity between crack and powder cocaine. The ACLU strongly urges you to co-sponsor and support the passage of S. 1711 in order to end this 20-year travesty of justice.


Caroline Fredrickson

Jesselyn McCurdy
Legislative Counsel