The Honorable Diane Murphy, Chair
U.S. Sentencing Commission
One Columbus Circle, N.E.
Washington, DC 20002-8002
April 4, 2002
Dear Judge Murphy:
Thank you for the opportunity to testify at the Sentencing Commission's recent hearings regarding the current disparity in crack and powder cocaine sentencing. We welcome the Commission's attention to this long-standing injustice.
On March 19, 2002, Deputy Attorney General Larry Thompson testified before the Commission. He stated that the Justice Department believes current cocaine sentencing laws to be "proper" and that if the Commission seeks to address the disparity between powder and crack sentences, the trigger quantities for powder cocaine should be lowered instead of those for crack cocaine being raised. This position was at odds with the previously expressed views of President Bush, who stated last year: "I think a lot of people are coming to the realization that maybe long minimum sentences for the first-time users may not be the best way to occupy jail space and/or heal people from their disease. And I'm willing to look at that." He then expressed support for "making sure the powder-cocaine and the crack-cocaine penalties are the same. I don't believe we ought to be discriminatory." (Houston Chronicle, 1/28/01)
We respectfully disagree with the Justice Department and agree with President Bush's earlier statement. This letter responds to the Department's arguments before the Commission.
DOJ says the current penalties are "proper."
In defending the current statutes, DOJ stands alone against the weight of scientific, legal and judicial opinion. During the course of three recent hearings, the Sentencing Commission heard testimony from noted scientists and criminologists, including Dr. Glenn Hansen, Director of the National Institute on Drug Abuse. Uncontradicted expert testimony makes clear that crack and powder cocaine are pharmacologically identical. This year's testimony validates the Commission's 1995 findings and shows that since 1995, crack use has stabilized, crack markets have become less violent and the medical community has rejected the myth of the "crack baby."
In addition to scientific evidence, the Commission heard testimony from the Judicial Conference of the United States, the American Bar Association and leading civil rights organizations urging that current law be revised. Congress itself, in rejecting the Commission's 1995 proposal, directed the Commission to "propose revision of the drug quantity ratio of crack cocaine to powder cocaine" (Pub. L. 104-38). And the record of the House and Senate Judiciary Committee hearings that year is replete with statements from Republicans, Democrats and then-representatives of the Justice Department condemning the 100-to-1 ratio and promising eventual change. At that time no one defended the 100-to-1 ratio that DOJ now calls "proper."
The 100-to-1 ratio in current law leads to unfair and discriminatory sentences. Street level crack dealers, many of them drug addicts themselves, face harsh mandatory sentences while more culpable members of the drug operation who sell powder cocaine to the street dealers receive less severe punishment. At the same time over 90% of federal crack defendants are African-American, fueling severe racial disparities in the criminal justice system as a whole.
DOJ says the actual ratio is lower than 100 to 1.
As set forth above, the statutes are unambiguous: the same mandatory minimum sentence is triggered by 100 times the amount of powder as opposed to crack cocaine (e.g., 5 grams of crack, 500 grams of powder). DOJ says that the sentences imposed are not 100 times different, but this is a classic straw man argument - no one has ever contended that the sentences imposed for crack were 100 times greater. No one has ever said, for example, that powder defendants were receiving 5 years and crack defendants were receiving 500 years. All current and previous proposals to revise the rules are based on the correct understanding that the 100-to-1 ratio is reflected in the quantity of drugs that triggers dramatically harsher punishment.
Even so, the Department's analysis undermines its own position. The new DOJ study shows that the average sentence for cases involving five grams of powder is 13 months while the average sentence for cases involving five grams of crack is 70.5 months. That 5.4-to-1 ratio is astonishing considering that crack is nothing more than a processed form of powder cocaine.
DOJ says if any changes are made, powder sentences should be raised.
There are three primary reasons why powder cocaine penalties should not be raised. First, no one seriously believes that current powder cocaine sentences are insufficient to fulfill the purposes of punishment. Mr. Thompson conceded to the Commission that there is "no evidence that existing powder penalties are too low." And in 1997, 27 federal judges who formerly served as U.S. Attorneys wrote an unprecedented letter to Congress specifically opposing any increases in current powder cocaine sentences, which they termed "severe." Second, lowering the powder threshold would subject more low-level powder defendants to harsh mandatory sentences; by definition, lowering the threshold affects low-level defendants. Third, raising powder sentences would have a disproportionate impact on Hispanics, who comprise over 50% of powder cocaine defendants. This change would make the current problems even worse.
DOJ says it is important to consider the victims of drug abuse.
Drug abuse is indeed a significant social problem with many victims, but recognition of that fact does not support any particular sentence or sentencing structure. Moreover, many of the low-level, non-violent drug sellers who receive unjustifiably harsh sentences under current law are themselves addicts victimized by drugs. For example, the DOJ points to women who prostitute themselves for drugs, but many such women also sell drugs to support their habits. Federal Bureau of Prisons Director Kathy Hawk Sawyer has testified before Congress that "70-some percent of our female population are low-level, nonviolent offenders. The fact that they even have to come into prison is a question mark for me. I think it has been an unintended consequence of the sentencing guidelines and the mandatory minimums."
DOJ says the Commission may not decouple the guidelines from the mandatory sentencing laws by promulgating guideline amendments with a ratio different than the statutory ratio.
Nothing in the Sentencing Reform Act of 1984 mandates that the guidelines mirror mandatory sentencing statutes. The LSD and marijuana guidelines were decoupled from the corresponding statutes many years ago without objection.
DOJ says current law adequately allows for consideration of mitigating factors.
While judges may consider mitigating factors under the guidelines, such consideration is explicitly precluded by the application of mandatory sentencing laws. As a practical matter, the only time that a defendant avoids an otherwise applicable mandatory sentence is when the prosecutor chooses to certify that the defendant has cooperated sufficiently to warrant lesser punishment. Apparently, when the DOJ refers to mitigating factors it means prosecutors, rather than impartial judges, have adequate authority to grant leniency.
DOJ says revising the crack-powder ratio would be too complex.
Federal sentencing is already unbearably complex because the Department has resisted efforts to simplify it, including efforts by the Commission to simplify the guidelines. Any additional minor inconvenience resulting from implementing a solution to the longstanding crack-powder disparity would be far outweighed by the advantage of improving the fairness and perceived fairness of the federal sentencing system.
DOJ says the Commission's proposal to punish violence through sentencing enhancements is unworkable because of "problems of proof in individual cases."
The current crack and powder threshold quantities are based in part on the perception that crack markets are more violent than powder cocaine markets. The Commission's most recent data belies that concern; crack markets have stabilized and fewer than 20% of all federal crack cases involve a gun or other types of violence, according to presentence reports.
The Commission now proposes to punish such violence through the use of sentencing enhancements that would apply in all drug cases involving violence, not just crack cases. DOJ's reference to "problems of proof in individual cases" is just another way of saying a prosecutor may lack evidence to prove that the defendant was in fact violent, even under the lower evidentiary standards that apply at sentencing. The Department thus endorses an unfair system in which all crack defendants (but not other defendants) are presumed to be violent rather than a system in which a defendant's actual conduct drives the sentence.
DOJ says lowering crack penalties sends the "wrong message."
Current law, based as it is on the scientifically indefensible and racially disparate 100-to-1 ratio sends the wrong message: that the criminal law is unfair. Testifying against the crack-powder disparity, Leadership Conference on Civil Rights Executive Director Wade Henderson said: "Few policies have contributed more to minority cynicism about law enforcement. If anti-drug efforts are to have any credibility, especially in minority communities, these penalties must be significantly revised." Changes to make these laws fair and rational would finally send the right message, not the wrong message.
The Commission should propose amended guidelines that raise the threshold quantities of crack without lowering the powder cocaine threshold.
We urge the Commission to promulgate amendments to the guidelines that would raise the threshold quantities of crack cocaine to more accurately reflect the punishment for mid and high-level dealers. We realize that the Commission is precluded from equalizing crack and powder thresholds, but we urge you to move as close to equalization as possible. Lowering the thresholds point for powder cocaine will have a disparate impact on people of color, especially Hispanics. According to the Commission's own data in 2000, 80% of persons prosecuted for powder cocaine offenses were people of color - 30.5% were black and 50.8% were Hispanics - while only 17.8% of powder cocaine defendants were white. As Charles Kamasaki, Senior Vice-President of the National Council of La Raza noted in his testimony, "Latinos are significantly over-represented among those convicted of powder cocaine offenses. Lowering powder thresholds would increase average sentences by at least 14 months, with the inevitable increase in incarceration rates. In our judgment, the real-world, tangible harm produced by lowering the powder thresholds would far outweigh the abstract, symbolic value of reducing statutory sentencing ratios."
We urge the Commission to refrain from proposing any amendments that would lead to additional racial disparities, thus increasing skepticism and distrust of the criminal justice system in minority communities.
Thank you for considering our views.
Sincerely,
Wade Henderson, Executive Director
Leadership Conference on Civil Rights
Charles Kamasaki, Senior Vice-President
National Council of La Raza
Julie Stewart, President
Families Against Mandatory Minimums
Laura Murphy, Director
American Civil Liberties Union
Washington National Office
Irwin H. Schwartz, President
National Association of Criminal Defense Attorneys
Jamie Fellner, Director, U.S. Programs
Human Rights Watch