U.S. Sentencing Commission Releases Long-Awaited Report on Crack/Powder Sentences |
SENTENCINGMarch 1995 |
On Feb. 28 the U.S. Sentencing Commission released a much-anticipated report on the disparity in sentences for crack and powder cocaine offenses (U.S. Sentencing Commission, "Cocaine and Federal Sentencing Policy," Feb. 1995).
The 242-page report, which Congress ordered from the Commission in the Violent Crime Control and Law Enforcement Act of 1994 (Public Law 103-322), details the disparate impact crack sentences have on African-Americans but made no recommendations for changes in the current sentencing strategy. The report finds that over 88% of those sentenced for crack offenses are black, while only 4.1% of those sentenced for that offense are white (see table 13 of the report). Most of those who use crack, however, are white (52% of reported crack users are white, 38% are black, p. 39).
In 1986 Congress enacted mandatory minimum sentences for cocaine and crack trafficking: sale of 5 grams of crack or 500 grams of powder cocaine is punishable by a mandatory minimum sentence of 5 years in federal prison. Sale of 50 grams of crack or 5000 grams (5 kilos) of powder cocaine is subject to a mandatory minimum of 10 years in federal prison.
Congress enacted a five-year mandatory minimum for possession of more than five grams of crack in 1988. Possession of any quantity of any other drug, including powder cocaine, carries a maximum sentence of one year for a first-time offender.
The Commission reached six major conclusions in its report:
"1. Drugs are a serious problem, and crack and powder cocaine are dangerous drugs.
"2. While some aspects of drug use and distribution may justify a higher penalty for crack than for powder cocaine offenses, the present 100-to-1 quantity ratio is too great.
"3. Among other problems, the 100-to-1 quantity ratio produces unintended results by potentially punishing low-level (retail) crack cocaine dealers far more severely than their high-level (wholesale) suppliers of powder cocaine (from which crack is converted).
"4. Congress established the Sentencing Commission to develop sentencing policies and practices that address congressional concerns, to evaluate policy effectiveness, to refine the sentencing guidelines, and to recommend needed legislation.
"5. The sentencing guidelines -- as compared to mandatory minimum penalty statutes -- provide a more precise mechanism for tailoring appropriate sentences to individual offenses and offenders.
"6. In cocaine offenses, quantity and form are just two factors for determining appropriate punishment; other characteristics can be equally or more important. Refinement of the guidelines would be a better way to address those harms that prompted Congress to establish the 100-to-1 quantity ratio."
Given these conclusions, the Commission recommended that:
"1. the Commission establish methods within the guidelines structure to deal with the crimes of possession and distribution of both crack cocaine and powder cocaine; and
"2. in light of the Commission's pending amendments, Congress revisit the 100-to-1 quantity ratio as well as the penalty structure for simple possession."
Crack and powder cocaine are the same drug in different forms. Crack can b made easily out of powder cocaine by mixing the powder with baking soda and water and heating the mixture.
The report gives a detailed summary of research on cocaine and cocaine sentencing, including its pharmacology, prevalence of use, health and societal effects, methods of administration, distribution markets, and relation to criminal behavior. The report also includes a short history of the legislative and law enforcement responses to cocaine, an overview of guideline and mandatory minimum sentencing, and a partial list of the legal challenges to crack sentences.
[The Sentencing Commission's report on cocaine sentencing is valuable for drug policy analysts because of the data it provides on sentencing outcomes for a range of drug offenses. International criminal organizations are getting evermore powerful from the money generated by the criminal drug trade. Until America recognizes the strong parallels between the Vietnam War and the drug war -- policy maker ignorance, faulty strategy, misunderstanding domestic attitudes, failure to listen to dissidents, lying about the facts, etc. -- and ends prohibition, it is critical that the violent and powerful criminals be investigated and prosecuted before they completely dominate Mexico, Colombia, Pakistan, or even Russia, as well as dozens of smaller nations.
The least corrupt and most powerful law enforcement agency in the world is the U.S. Justice Department. It's primary mission in the anti-drug fight should be to prosecute the global and major interstate traffickers. The Sentencing Commission report reveals profound misfeasance at Justice, at the DEA, and in U.S. Attorneys offices in targeting local and small-scale offenders.
No matter how bad the drug trafficking problem is on street corners in Washington, New York or Los Angeles, those cities all have very large law enforcement agencies, large prosecutors offices and large prison systems at the end of the line. When only 11.2% of the Federal punishment capacity is directed at high-level dealers, and 55.2% is directed to street-level dealers, bodyguards, couriers, and mules, this points to a squandering of precious crime-fighting resources that merits consideration of impeachment of the managers in charge. -- EES].
[To receive a copy of the report "Cocaine and Federal Sentencing Policy," contact the U.S. Sentencing Commission at One Columbus Circle, NE, Suite 2-500, South Lobby, Washington, DC 20002-8002, 202-273-4500.]
| TOTAL | WHITE | BLACK | HISPANIC | OTHER | ||||||||||
| Drug Type | # | % | # | % of Race | % of Drug | # | % of Race | % of Drug | # | % of Race | % of Drug | # | % of Race | % of Drug |
| Total | 14,293 | 100.0 | 4,403 | 30.8 | -- | 4,843 | 33.9 | -- | 4,826 | 33.8 | -- | 221 | 1.5 | -- |
| Powder Cocaine | 5,296 | 37.0 | 1,694 | 38.5 | 32.0 | 1,452 | 30.0 | 27.4 | 2,079 | 43.1 | 39.3 | 71 | 32.1 | 1.3 |
| Crack Cocaine | 3,109 | 21.8 | 128 | 2.9 | 4.1 | 2,745 | 56.7 | 88.3 | 221 | 4.6 | 7.1 | 15 | 6.8 | 0.5 |
| Heroin | 1,384 | 9.7 | 173 | 3.9 | 12.5 | 487 | 10.1 | 35.1 | 676 | 14.0 | 48.8 | 48 | 21.7 | 3.5 |
| Marijuana | 2,848 | 26.9 | 1,855 | 42.1 | 48.2 | 149 | 3.1 | 3.9 | 1,794 | 37.2 | 16.6 | 50 | 22.6 | 1.3 |
| Methamphetamine | 656 | 4.6 | 553 | 12.6 | 84.2 | 10 | 0.2 | 1.5 | 56 | 1.2 | 8.5 | 37 | 16.7 | 5.6 |
*Of the 42,107 guideline cases, 19,475 involved drugs. Of these 19,475 cases, 5,182 cases were excluded for one or more of the following reasons: incomplete guideline application information (3,283); missing drug type (33); cases in which the drug type is other than the five primary drugs listed (987); drug convictions in which the primary drug guideline applied was not §2D1.1 (2,382); or missing information on defendant's race (4).
**For purposes of this report, defendants whose ethnic background is designated as Hispanic are shown as Hispanic regardless of racial background. The Other category includes defendants of Native American, Alaskan Native, and Asian or Pacific Islander origin.
SOURCE: Table 13, U.S. Sentencing Commission, "Cocaine
and Federal Sentencing Policy," Feb. 1995, p.161. U.S. Sentencing Commission,
1993 Datafile, MONFY93.
| BASE OFFENSE LEVEL/QUANTITY (# OF MONTHS IMPRISONMENT**) |
Powder Cocaine ($107/gram) | Crack Cocaine ($38.33 / 1/3 gram) | Heroin ($10 / 10 mg | Marijuana ($237.57/ounce) | Methamphetamine ($95/gram) |
| Level 12 (10-16 months) | -- | -- | -- | $20,950 | -- |
| Level 14 (15-21 months) | $2,675 | $29 | $5,000 | $41,900 | $475 |
| Level 16 (21-27 months) | $5,350 | $58 | $10,000 | $83,800 | $950 |
| Level 18 (27-33 months) | $10,700 | $115 | $20,000 | $167,600 | $1,900 |
| Level 20 (33-41 months) | $21,400 | $230 | $40,000 | $335,200 | $3,800 |
| Level 22 (41-51 months) | $32,100 | $345 | $60,000 | $502,800 | $5,700 |
| Level 24 (51-63 months) | $42,800 | $460 | $80,000 | $670,400 | $7,600 |
| Level 26 (63-78 months) | $53,500 | $575 | $100,000 | $838,000 | $9,500 |
| Level 28 (78-97 months) | $214,000 | $2,300 | $400,000 | $3,352,000 | $38,000 |
| Level 30 (97-121 months) | $374,500 | $4,025 | $700,000 | $5,866,000 | $66,500 |
| Level 32 (121-151 months) | $535,000 | $5,750 | $1,000,000 | $8,380,000 | $95,000 |
| Level 34 (151-188 months) | $1,605,000 | $17,250 | $3,000,000 | $25,140,000 | $285,000 |
| Level 36 (188-235 months) | $5,350,000 | $57,500 | $10,000,000 | $83,800,000 | $950,000 |
| Level 38 (235-293 months) | $16,050,000 | $172,500 | $30,000,000 | $251,400,000 | $2,850,000 |
*SOURCE: Table 19, U.S. Sentencing Commission, "Cocaine and Federal Sentencing Policy," Feb. 1995, p. 173. Street-level value is derived from the U.S. Drug Enforcement Administration's Illegal Price and Purity Report, United States: Jan. 1990-Dec. 1993, April 1994 and U.S. Drug Threat Assesment: 1993, Sept. 1993. The DEA reports the price paid for kilograms, pounds, ounces, and grams. Because the DEA reports a range of prices for each drug, the midpoint was chosen for this analysis. Further, the price range chosen was that typically associated with retail sale, e.g., for cocaine powder the price per gram was selected whereas for marijuana the price per ounce was selected.
**SOURCE: U.S. Sentencing Commission, "Guidelines Manual," Nov. 1, 1992, back cover.
| TOTAL | Powder Cocaine | Crack Cocaine | Heroin | Marijuana | Methamphetamine | |||||||
| GEOGRAPHICAL RANGE | n | % | n | % | n | % | n | % | n | % | n | % |
| TOTAL | 692 | 100.0 | 182 | 26.3 | 151 | 21.8 | 113 | 16.3 | 167 | 24.1 | 79 | 11.4 |
| Local | 286 | 41.3 | 71 | 39.0 | 116 | 76.8 | 32 | 28.3 | 42 | 25.2 | 25 | 31.6 |
| Intrastate | 84 | 12.1 | 21 | 11.5 | 11 | 7.3 | 10 | 8.8 | 17 | 10.2 | 25 | 31.6 |
| Interstate | 158 | 22.8 | 57 | 31.3 | 22 | 14.6 | 7 | 6.2 | 44 | 26.4 | 28 | 35.4 |
| International | 164 | 23.7 | 33 | 18.1 | 2 | 1.3 | 64 | 56.6 | 64 | 38.3 | 1 | 1.3 |
*Of the 840 defendants on the sample, 148 were excluded due to one or more of the following conditions: not a §2D1.1 drug case (73); drug involved was LSD (59); or the geographical range of the defendant's activities could not be determined (17). If the defendant was held accountable for more than one drug type in the instant offense, the drug that produced the highest base offense level was the primary drug type used.
SOURCE: Table 17, U.S. Sentencing Commission, "Cocaine and Federal Sentencing Policy," Feb. 1995, p. 170; Stratified random sample of 1992 drug cases, U.S. Sentencing Commission, 1992 Datafile, MONFY92.
| TOTAL | Powder Cocaine | Crack Cocaine | Heroin | Marijuana | Methamphetamine | |||||||
| Function | n | % | n | % | n | % | n | % | n | % | n | % |
| TOTAL | 618 | 100.0 | 173 | 28.0 | 146 | 23.6 | 105 | 17.0 | 132 | 21.4 | 62 | 10.0 |
| High-Level Dealer | 69 | 11.2 | 16 | 9.2 | 8 | 5.5 | 10 | 9.5 | 21 | 15.9 | 14 | 22.6 |
| Mid-Level Dealer/Broker | 208 | 33.7 | 66 | 38.2 | 45 | 30.8 | 20 | 19.0 | 44 | 33.3 | 33 | 53.2 |
| Street-Level Dealer/Bodyguard | 191 | 30.9 | 54 | 31.2 | 87 | 59.6 | 25 | 23.8 | 12 | 9.1 | 13 | 21.0 |
| Courier/Mule | 150 | 24.3 | 37 | 21.4 | 6 | 4.1 | 50 | 47.6 | 55 | 41.7 | 2 | 3.2 |
*If defendant had more than one function, the most serious function was used. If the defendant was held accountable for more than one drug type in the instant offense, the drug that produced the highest base offense level was the primary drug used.
**Of the 840 defendants in the sample, 222 were excluded due to one or more of the following conditions: not a §2D1.1 drug case (73); drug involved was LSD (59); the defendant's function was not one of the functions listed above (79); or the defendant's function in the instant could not be determined (12).
SOURCE: Table 18, U.S. Sentencing Commission, "Cocaine and Federal Sentencing Policy," Feb. 1995, p. 172; Stratified random sample of 1992 drug cases, U.S. Sentencing Commission, 1992 Datafile, MONFY92.