ACLU and Sentencing Experts Urge Federal Court to Uphold Judges’ Right to Reject 100-to-1 Crack/Powder Ratio

January 20, 2006 12:00 am

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

SAN FRANCISCO – 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 a case concerning the right of judges to depart from the controversial 100-to-1 crack/powder cocaine sentencing disparity imposed by Congress. The case, U.S. v. Starks, is being argued in the Ninth Circuit U.S. Court of Appeals.

The ACLU and others argue in the brief, principally authored by Baylor University law 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 guidelines. Booker held that in order to comply with the Sixth Amendment’s jury-trial protections, federal sentencing guidelines must remain advisory, not mandatory.

Booker restored judges to their proper role, replacing a rubber stamp with reason,” said Alyse Bertenthal, an attorney with the ACLU Drug Law Reform Project. “If a judge feels the 100-to-1 ratio doesn’t accurately reflect the seriousness of a crime, she has no choice but to abandon 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.

The present appeal, brought on behalf of Antonio Starks, stems from a March 2005 District Court decision by Judge William B. Shubb, in which he stated that though he believes “that the 100-to-1 ratio is not reasonable,” he had no choice but to adhere to it when sentencing Starks for a crack cocaine offense. Utilizing the ratio, Judge Shubb sentenced Starks to over 12-years in prison.

The coalition brief argues that Judge Shubb erred in concluding that he could not depart from the 100-to-1 ratio and that this necessarily prejudiced his ruling, thus invalidating it.

“Judge Shubb’s treatment of the guidelines’ 100-to-1 ratio as mandatory contradicts the Supreme Court’s decision in Booker and fails to adhere to the statutory provisions that now govern federal sentencing,” said Douglas Berman, a Professor of Law at The Ohio State University and a co-author of the brief.

According to Starks’ brief, since Booker at least 21 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 entirely disregarded and later recommending that it be set at 20-to-1. Congress rejected the initial recommendation in 1995, the only time in history a Sentencing Commission recommendation has gone unheeded.

The crack/powder discrepancy has been routinely criticized as racist 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 and Berman, the coalition brief is joined by 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:

Starks’ appellant brief can be found at:

Judge Shubb’s sentencing transcript can be found at:

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