ACLU and Sentencing Experts Renew Call for Federal Courts to Uphold Judges’ Right to Reject 100-to-1 Crack/Powder Sentencing Disparity

May 18, 2006 12:00 am

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Recent U.S. Supreme Court Ruling Allows Judges to Abandon Unfair Sentencing Disparity


PHILADELPHIA – The American Civil Liberties Union joined a group of renowned criminal law and sentencing experts in filing a friend-of-the-court brief today in support of the right of judges to depart from the notorious 100-to-1 crack/powder cocaine sentencing disparity imposed by Congress. The case, U.S. v. Ricks, is being argued in the Third Circuit U.S. Court of Appeals.

The ACLU and others argue in the brief, principally authored by Baylor University Professor Mark Osler, that based on the U.S. Supreme Court’s recent ruling in Booker v. U.S., judges are not only allowed, but obligated to exercise reasoned discretion in sentencing, and that doing so may at times result in departure from federal sentencing guidelines. Booker held that in order to comply with the U.S. Constitution’s Sixth Amendment jury-trial protections, federal sentencing guidelines must remain advisory, not mandatory.

“Since Booker, a long overdue revolution is underway,” said Graham Boyd, director of the ACLU Drug Law Reform Project. “Judges across the country have always recognized the injustice of the 100-to-1 ratio, but have been powerless to abandon it. Now they have that power, and we urge them to use it.”

Determined by Congress’s federal sentencing guidelines, the extreme 100-to-1 ratio relates to the amount of crack versus powder cocaine necessary to trigger mandatory minimum prison sentences – meaning that possession of one gram of crack cocaine would mandate the same minimum sentence as 100 grams of powder cocaine.

Since Booker was decided last June, nearly two dozen district courts throughout the country have issued lower sentences than those suggested by the 100-to-1 ratio. The coalition brief notes that federal law stipulates that courts must impose sentences “sufficient, but not greater than necessary” in order to “avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.”

The U.S. Sentencing Commission has three times concluded that there is no empirical basis for the 100-to-1 ratio, initially suggesting the crack/powder discrepancy be disregarded entirely and later recommending that it be set at a 20-to-1 ratio. Congress rejected the initial recommendation in 1995, the only time in history a Sentencing Commission recommendation has gone unheeded.

It is the 20-to-1 ratio recommended by the Sentencing Commission that served as the basis for defendant Ricks’s sentence, which the government is currently appealing. As District Court Judge Buckwalter, who sentenced Ricks, remarked at the time of sentencing, “I have to consider the need for the sentence…to reflect the seriousness of the offense, promote respect for the law, and provide just punishment for the offense. I think that the sentence I’m going to give of incarceration will do just that.”

The crack/powder discrepancy has been routinely criticized for its racially discriminatory impact by a wide variety of criminal justice and civil rights groups, including the Leadership Conference on Civil Rights and the NAACP. In 2000, 93.7 percent of defendants convicted of federal crack distribution offenses were black or Hispanic and only 5.6 percent were white, according to Sentencing Commission statistics.

In addition to the ACLU, the coalition brief is joined by Douglas Berman, a Professor of Law at The Ohio State University Michael M. O’Hear, an Associate Professor of Law at Marquette University and Editor of the Federal Sentencing Reporter; David N. Yellen, Dean and Professor of Law at Loyola University; and David M. Zlotnick, an Associate Professor of Law at Roger Williams University.

The coalition brief can be found online at:

A legal brief on this issue in the case U.S. v. Starks can also be found online at:

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