Sentencing Commission Proposes Reduction In Disparity In Powder and Crack Cocaine Sentences

SENTENCING May-June 1997

The United States Sentencing Commission (USSC), in a report issued in late April, recommended lessening the disparity between powder cocaine and crack cocaine mandatory sentencing (United States Sentencing Commission, Cocaine and Federal Sentencing, April 1997; Mary Pat Flaherty and Joan Biskupic, "Hill Urged to Reduce Gap Between Sentences for Crack and Powder Cocaine," Washington Post, April 30,1997, p. A12; Robert Jackson, "Panel urges more parity in cocaine sentences," Los Angeles Times (Washington Edition), April 30, 1997, p. A3).

The new report attempts to compromise with Congress and President Clinton who rejected the Commission's 1995 proposal that the 100 to 1 quantity ratio to trigger mandatory penalties for crack and powder crimes be eliminated. The USSC now acknowledges that crack selling should be more harshly punished than powder cocaine selling on a quantity basis. For the five-year mandatory minimum sentence, the USSC recommendation is for the 500 gram powder cocaine trigger to be reduced to between 125-375 grams, and for the 5 gram crack cocaine trigger to be raised to between 25-75 grams.

Judge Richard P. Conaboy, Chairman of the USSC, said, "The ranges suggested provide Congress the flexibility to make an informed judgement about the appropriate penalties for these two forms of cocaine. ... We feel strongly, though, that the current policy must be changed to ensure that severe penalties are targeted at the most serious traffickers. Adopting a ratio within the ranges we recommend will more accurately accomplish this purpose."

Eric E. Sterling, President of the Criminal Justice Policy Foundation, who has been extensively involved in analyzing drug sentencing since the early 1980s, said, "There are at least six reasons why this proposal stinks. First, sentences should not be raised or lowered simply to include or exclude more offenders of a given race. Second, the quantity triggers were established irrationally. The low quantities have no relation to the high level culpability Congress wanted to punish in 1986 when it wrote this law. This tinkering does not bring rationality. Three, lowering powder cocaine quantity triggers means more low level cocaine mules, couriers, and lookouts will be subject to kingpin level sentences. Four, more blacks -- who remain at the low rungs of the cocaine trafficking ladder -- will get long mandatory sentences for powder cases. Five, Federal prosecutors will decline cases they now accept and accept cases they now decline, and the percentage and numbers of black low level crack defendants will remain largely unchanged. Six, this proposal is offered in the spirit of we have to do something. It will delay real reform."

Republicans in Congress, including Senate Judiciary Committee Chairman Orrin Hatch (R-UT), have agreed with the increase in punishments for powder cocaine for low level dealers. President Clinton has promised to give the plan consideration. Critics, on the other hand, say that the Commission has bowed to political pressure in issuing this lesser recommendation.

See also: "Cocaine Sentencing Disparity Should be Reduced, According to Study in JAMA," NewsBriefs, December 1996; "Clinton Signs Bill to Disapprove of Equalizing Crack-Powder Cocaine Sentences, NewsBriefs, December 1995; and "U.S. Sentencing Commission Releases Long-Awaited Report on Crack/Powder Sentences," NewsBriefs, March 1995.

The full text of the USSC report is available on-line at www.ussc.gov/whatnew.htm or a copy can be obtained from the NewsBriefs office.