The sentencing disparity between crack and powder cocaine has riled defense lawyers, civil rights advocates, and sentencing experts since the 1986 law set a 100:1 difference in the amounts of powder and crack cocaine that trigger minimum five- and 10-year sentences. Last week the Sentencing Commission took its first step in more than 10 years to reduce that disparity by announcing that it would modify the penalties for crack.
The proposal would not do away with the mandatory minimum penalties — which require five years for first-time offenders caught with 5 grams of crack and 10 years for those caught with 50 grams. But it would lower the guideline sentencing range for crack offenders so that the 100:1 differential would drop to a range of 25:1 to 80:1, depending on the amount of possession. The decision will go into effect Nov. 1 if Congress does not object.
The proposed change is the first time the commission has tried to amend the crack cocaine sentencing guidelines since 1995, when it proposed changing the ratio to 1:1. Congress rejected that amendment, and in the years since the commission has merely recommended that Congress change the guideline difference between powder and crack cocaine to no more than 20:1.
But the commission, which has balked at the difference for years, notes that its change is only a “partial solution” and urges Congress to take broader action to ameliorate the problem of the statutory minimums. It still leaves open whether it’s appropriate for judges to give offenders far shorter sentences by relying on a Supreme Court decision making the federal sentencing guidelines only advisory—as some local judges have. (See Legal Times' account (subscription required) of this effort.)
And not everyone is satisfied. The ACLU, in a statement released by Washington legislative director Caroline Fredrickson, said it was “disappointed” that the commission did not equalize the ratio “despite the wealth of research and data they've collected over the years indicating no medical or legal reason for the disparity. This unjust policy is based on little more than politics and urban myths, yet it's been allowed to stand for over 20 years, devastating African-American communities in the process."