Sentencing Commission Seeks Public Comment on Cocaine Sentencing; Will Not Propose Amendments in Current Cycle

IN THE COURTS February 1996

On December 12, the U.S. Sentencing Commission announced it will not be proposing amendments to the Sentencing Guidelines in the current cycle ("U.S. Sentencing Commission Says It Won't Issue Amendments in 1996," 58 CrL 1263; 61 Federal Register 79, January 2, 1996).

The Commission is seeking comments from the public on cocaine sentencing pursuant to P.L. 104-38 rejecting the 1-to-1 crack-powder guideline. That Act directs the Commission to:

1. ... submit to Congress recommendations (and an explanation therefor), regarding changes to the statutes and sentencing guidelines governing sentences for unlawful manufacturing, importing, exporting, and trafficking of cocaine, and like offenses, and attempt and conspiracy to commit any of the forgoing offenses. The recommendations shall reflect the following considerations --

a. the sentence imposed for trafficking in a quantity of crack cocaine should generally exceed the sentence imposed for trafficking in a like quantity of powder cocaine;

b. high-level wholesale cocaine traffickers, organizers, and leaders, of criminal activities should generally receive longer sentences than low-level retail cocaine traffickers and those who played a minor or minimal role in such activity;

c. if the Government establishes that a defendant who trafficks in powder cocaine has knowledge that such cocaine will be converted into crack cocaine prior to its distribution to individual users, the defendant should be treated at sentencing as though the defendant had trafficked in crack cocaine; and

d. enhanced sentence should generally be imposed on a defendant who, in the course of an offense described in this subsection --

i. murders or causes serious bodily injury to an individual;

ii. uses a dangerous weapon;

iii. uses or possesses a firearm;

iv. involves a juvenile or a woman who the defendant knows or should know to be pregnant;

v. engages in a continuing criminal enterprise or commits other criminal offenses in order to facilitate his drug trafficking activities;

vi. knows, or should know, that he is involving an unusually vulnerable person;

vii. restrains a victim;

viii. traffics in cocaine within 500 feet of a school;

ix. obstruct justice;

x. has a significant prior criminal record; or

xi. is an organizer or leader of drug trafficking activities involving five or more persons.

2. Ratio -- The recommendations described in the preceding subsection shall propose revision of the drug quantity ratio of crack cocaine to powder cocaine under the relevant statutes and guidelines in a manner consistent with the ratios set for other drugs and consistent with the objectives set forth in section 3553 (a) of title 28 United States Code.

Public comment should be sent to the Commission at One Columbus Circle, NE, Suite 2-500, Washington, DC, 20002-8002 (Attn. Public Information) by March 6.

Chairman Judge Richard Conaboy said the Commission will be concentrating on an overall review of ways to simplify the Guidelines system (see "Major Revision of Sentencing Guidelines Contemplated," NewsBriefs, November 1994, page 30 for some proposals). The Commission established a "Judicial Advisory Group" of judges from all of the federal circuits to comment on problems with the Guidelines.