U.S. Supreme Court Weighs 100-to-1 Disparity in Crack/Powder Cocaine Sentencing

October 2, 2007 12:00 am

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Case Coincides with Congressional Push to Repeal Racially Discriminatory Sentencing Scheme

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WASHINGTON – The United States Supreme Court heard arguments today regarding the ability of judges to depart from the notorious 100-to-1 crack/powder cocaine sentencing disparity. The American Civil Liberties Union filed a friend-of-the-court brief in the case, Kimbrough v. U.S., arguing that federal judges have discretion under existing law to reject this disparity and issue more lenient sentences than those called for by federal sentencing guidelines for crack offenses.

“Judges should not be required to close their eyes to the fact that the 100-to-1 disparity is unsound in theory and racially discriminatory in practice,” said Steven R. Shapiro, Legal Director of the ACLU.

Established by the Anti-Drug Abuse Acts of 1986 and 1988, the 100-to-1 ratio relates to the amount of crack versus powder cocaine necessary to trigger mandatory minimum prison sentences – meaning that possession of five grams of crack cocaine would mandate the same minimum sentence as 500 grams of powder cocaine.

The most recent government statistics available show that in 2005, African Americans constituted more than 80 percent of those sentenced to federal prison for crack cocaine offenses, even though two-thirds of crack cocaine users are white or Hispanic.

In its brief, the ACLU notes that while judges are obligated to consult the federal sentencing guidelines, federal law requires courts to impose sentences “sufficient, but not greater than necessary” in order to promote a fair and just sentencing scheme.

The Supreme Court’s 2005 ruling in U.S. v. Booker confirmed that the Sentencing Guidelines are advisory, not mandatory, while the Court’s 2007 decision in Rita v. U.S. explicitly instructed sentencing courts to consider whether “the Guidelines reflect an unsound judgment.”

These Supreme Court directives, coupled with the flawed logic underlying the 100-to-1 ratio, support the right of judges to sentence below the guideline for crack offenses. As a result, federal judges in roughly two dozen district courts across the country have thus far issued more lenient sentences than those suggested by the 100-to-1 ratio.

In addition, the U.S. Sentencing Commission has recommended four times that the 100-to-1 ratio be rescinded, most recently in May 2007.

Based on the Sentencing Commission’s recommendations, Senator Joseph Biden (D-DE) has introduced the Drug Sentencing Reform and Cocaine Kingpin Trafficking Act of 2007, a groundbreaking piece of legislation that would equalize the penalties for crack and powder cocaine.

“The 100-to-1 disparity has unfairly impacted African Americans and wasted scarce law enforcement resources targeting low-level offenders,” said Jesselyn McCurdy, Legislative Counsel for the ACLU. “It is time for Congress to put politics aside and take this unjust law off the books.”

Kimbrough v. U.S. is on appeal from the United States Court of Appeals for the Fourth Circuit.

The ACLU’s brief in the case is available online at:

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