Senate Holds Hearings on Crack Cocaine Sentencing

SENTENCING October 1995

On August 10, the Senate Judiciary Committee held hearings on the U.S. Sentencing Commission's proposal to equalize the penalties for crack and powder cocaine. Much of the testimony mirrored that of a House hearing held on June 29 (see "House Holds Hearings on Crack/Powder Cocaine Sentencing Disparity," NewsBriefs, September 1995).

Committee Chairman Orrin Hatch (R-UT) outlined the proposed changes. Currently, at every quantity level of the Guidelines, one gram of crack cocaine and 100 grams of powder cocaine are treated equally for the purposes of sentencing offenders. For example, the Guidelines assign a 78-97 month sentence for distributing between 20 and 35 grams of crack cocaine and a 78-97 month sentence for distributing between 2 kilograms and 3.5 kilograms of powder cocaine. This 100-1 ratio is based on the 1986 mandatory minimum sentencing scheme. Under the change, there would be no difference between crack and powder cocaine weights for determining a sentence.

Hatch said that he was not persuaded that the proposed change to equalize the sentences should go into effect. "Crack cocaine is a killer drug," he said. "It is more addictive than powder and is more often linked to inner-city violence than any other drug."

Then-Assistant Attorney General for the Criminal Division Jo Ann Harris testified that equalization of the penalties "is counter to good law enforcement policies." A change in the statutes should precede a change in the Guidelines, she argued, to prevent sharp sentencing "cliffs" from occurring. Further, crack is associated with greater psychological, physiological, and social harm. Most importantly, she said, without the increased penalties, crack dealers will not be properly punished because these increased harms cannot be proven in court.

Hatch asked her what impact a change in the Guidelines would have on prisoner lawsuits. "Every time there is uncertainty, ambiguity, it causes a litigation explosion that takes the time of the Assistant U.S. Attorneys," she said. "It takes resources away from fighting crime."

Senator Dianne Feinstein (D-CA) said that she has witnessed the devastation crack has brought to neighborhoods in California. Crack, she said, "is synonymous with guns, gangs, and violence." She thanked Harris for "standing up to the reality on the streets of this country."

To compensate for the reduced sentences for crack offenders generally, the Commission proposed enhancements for violent drug offenses. But Sen. Fred Thompson (R-TN) said that the proposed amendments counter the purpose of the Sentencing Commission by placing tremendous discretion in the hands of judges. Enhancements, he said, are "hoops" that waste precious court time. Harris agreed, and said that there can be a "culpable defendant who can divorce himself from the enhancements." Enhancements cannot take into account facts that cannot be proven by the prosecutors such as devastation to women and children and systemic harm, she said.

Three Sentencing Commissioners testified about the proposed Guideline changes. Chairman Richard P. Conaboy testified that the proposed changes do not lower sentences for crack, but align them with the already-long sentences for powder cocaine. Current penalties for powder cocaine are four times what they were in 1970, he said. He asked the committee to "allow the Guideline system to continue to work so that each defendant is not sentenced as the worst possible case."

Commissioner Michael Goldsmith testified that he was one of the three who dissented on the vote to equalize penalties for crack and powder cocaine. He said that despite his objection to equalization, he does support lessening the ratio between the sentences. In particular he suggested ratios of 5:1 or 10:1, the latter being the sentencing ratio of ice to methamphetamine. He highlighted the question of the racially discriminatory impact of the sentencing disparity, asking the committee to study the question and take swift action if bias was found. In conclusion, he reminded the Committee that although not all commissioners voted to equalize crack and powder cocaine sentence, they unanimously rejected the 100:1 ratio.

Commissioner Wayne A. Budd, a former U.S. Attorney, called the Department of Justice's answer to the proposed changes "neither responsive nor responsible" and echoed his support for equalization of sentences to end the racial bias. Sen. Hatch challenged Budd that when each crack trafficker is arrested, that arrest disproportionately benefits poor, black communities. Budd answered that the black community does want crack dealers treated harshly, but not unfairly.

Commissioners Budd and Conaboy and Sens. Hatch and Feinstein discussed whether any low-level crack dealers were being prosecuted at the Federal level. Feinstein said that if attorneys were spending time on "petty low-level dealers," then that would be a problem, but she has not seen any evidence that this is the case (!). Commissioner Budd said that there is much discretion about where defendants are prosecuted, and sometimes those on the lowest level of the distribution chain are prosecuted on the federal level, often receiving longer sentences than their powder cocaine suppliers higher up in the organization.

Sen. Edward Kennedy (D-MA) highlighted how the 100:1 ratio came about: "The current disparity is an example of the problem with all mandatory minimum sentences. Congress sets a minimum number of years for a certain crime, without reference to other crimes." Congressional mandatory sentences, Kennedy said, defeat the purpose of a separate Sentencing Commission. He asked the Department of Justice to compromise on the issue and to negotiate with the Sentencing Commission.

At the end of the hearing, Sen. Hatch suggested that Congress may send the Commission back to "reconsider."

The House has completed markups on H.R. 2259, a bill that would prevent the amendment from taking effect. The bill was introduced by the Chairman of the Subcommittee on Crime, Rep. Bill McCollum (R-FL).