House Holds Hearings on Crack/Powder Cocaine Sentencing Disparity

SENTENCING September 1995

On June 29, the House Subcommittee on Crime held a hearing on the U.S. Sentencing Commission's proposal to equalize the penalties for crack and power cocaine.

Subcommittee Chairman Bill McCullom (R-FL) opened the hearing by outlining the proposed Guideline change. Currently, at every quantitative 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.

Rep. Robert Scott (D-VA) commented that crack cocaine is easily produced from powder cocaine. Powder cocaine is the form of the substance distributed at a higher level in the distribution line and sold to lower-level dealers who turn it into crack. He noted that relatively heavier penalties for some crack offenders do not fairly reflect those low-level dealers' role in the drug organization.

Rep. Steve Schiff (R-NM) said that if the Commission wants only to equalize crack and powder sentences, they could have recommended lowering the threshold amounts of powder cocaine to those of crack (so that 5 grams of powder cocaine would result in a 5-year sentence). He said that the "undefeatable way to avoid" long prison sentences is to not possess or sell drugs. "Nobody has to commit a crime," he said.

U.S. Sentencing Commission Chairman Richard P. Conaboy testified that the Commission had studied the crack/powder issue at length and in depth and had concluded that the sentencing disparity was unjust. "The Commission was troubled by the sentencing rules that provide disproportionately severe penalties for those convicted of trafficking in crack cocaine -- penalties that are significantly higher than those for similar trafficking in powder cocaine," he testified. "We were equally troubled by the fact that these penalties have great disproportionate impact on the poor and minorities in our communities."

"When there is any injustice, we must be vigilant in our efforts to remedy it. But when government policy is unfair, or even when government policy is perceived to be unfair, our vigilance must be even greater," he said.

Another member of the Commission, Deanell Reece Tacha, testified that while the Commission was unanimous in finding that the "100:1" disparity was unjust, not all on the Commissioners agreed that the penalties should be equalized. The Commission narrowly voted 4-3 to recommend the 1:1 Guideline change.

She testified that she believed that sentencing enhancements that now exist and new ones proposed for drug offenses involving violence and drug offenses committed while in possession of a gun do not take into account the greater harms associated with crack cocaine. "Additional harms associated to a greater degree with crack than with powder cocaine include the increased association of violent crime with crack, the deterioration of neighborhoods due to open-air markets and crack houses, and the high correlation between crack and a host of social harms, including parental neglect, child and domestic abuse, and high risk sexual behaviors," she testified. "Guideline enhancements, including the proposed enhancements, simply do not account for all of these harms. Thus, higher sentences for crack distribution offenses are necessary for sentences to reflect the greater dangers posed by crack."

"I cannot support the Sentencing Commission's proposal to equalize sentences for crack and powder cocaine trafficking offenses," she testified. "At the same time, I appeal to the Committee to reevaluate the current 100-to-1 quantity ratio, and, in doing so, to provide an avenue for consistency between the mandatory minimum penalties and the sentencing guidelines."

Commissioner Wayne Budd addressed Rep. Schiff's suggestion to raise powder sentences to those of crack. "While this may sound appealing at first glance, there are several serious problems with such a proposal," he testified. "First, cocaine sentences are now quite severe, and at the current levels, we are incarcerating increasing numbers of defendants for increasingly long periods of time. We have received no serious complaints from Congress, law enforcement, or others that these levels are too soft."

He also said that the purpose of the multi-level sentencing system, to assign tougher penalties to the high-level dealers, works well in the case of every drug except crack. He also said that raising powder cocaine penalties would make those sentences more severe than penalties for heroin, a drug associated with greater harm.

Assistant Attorney General for the Criminal Division Jo Ann Harris testified about the Department of Justice's objections to the Commission's proposed change. Like Commissioner Tacha, Harris pointed to increased harms associated with crack cocaine.

"The Department of Justice is concerned that equalization of the penalties for crack and cocaine powder trafficking does not reflect these significant differences, the impact crack has had on our communities, and the effect a drastic change in penalties would have on deterring those who traffick in this dangerous drug," she testified.

Amendments to the guidelines were submitted to Congress on May 1. Congress must act on the proposal within 180 days of that date, or the amendments automatically become part of the Guidelines (see "U.S. Sentencing Commission Recommends Equalizing Crack-Powder Cocaine Guidelines and Statutes," NewsBriefs, April 1995).

On May 1, the Commission also sent draft legislation to Capitol Hill to equalize the mandatory minimum statutes for crack and powder cocaine. The legislation, entitled "Cocaine Penalty Adjustment Act of 1995," would preserve mandatory sentences for cocaine offenses but would strike the phrases that assign larger penalties to crack offenses. Similar legislation, H.R. 1264, had been introduced by Rep. Charles B. Rangel (D-NY) on March 16, 1995 and referred to the House Judiciary Committee.

On July 19, two bills were introduced in the House to prevent the Commission's proposed changes from going into effect. Rep. Bart Stupak (D-MI) and Rep. McCullom introduced H.R. 2073, a bill to disapprove the Commission's amendments relating to crack and money laundering, and Rep. Bill Emerson (R-MO) introduced H.R. 2063, the "Sentencing Amendment Disapproval Act of 1995."

In the Sentencing Commission's report on the crack/powder cocaine sentencing disparity released in February, it pointed to the racial impact of this law. 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. Most crack users, however, are white (52% of reported crack users are white, 38% black) (see "U.S. Sentencing Commission Releases Long-Awaited Report on Crack/Powder Sentences," NewsBriefs, March 1995).

[The National Drug Strategy Network has copies of the testimony discussed here, as well as other testimony given during the hearings. If you would like a copy of the testimony, send $10 to the National Drug Strategy Network to cover costs.]