Pubdate: Mon, 29 Jun 2009
Source: Washington Post (DC)
Copyright: 2009 The Washington Post Company
Contact:  http://www.washingtonpost.com/
Details: http://www.mapinc.org/media/491
Author: Del Quentin Wilber, Washington Post Staff Writer
Bookmark: http://www.mapinc.org/coke.htm (Cocaine)
Bookmark: http://www.mapinc.org/find?199 (Mandatory Minimum Sentencing)

TWO JUDGES TARGET COCAINE PENALTIES

Disparity for Crack Crimes Criticized

Federal judges are beginning to equalize punishment for crack and 
powder cocaine crimes, resulting in shorter prison terms for crack 
dealers and putting pressure on Congress to address a wide disparity 
in how the legal system handles cocaine-related offenses.

In two recent rulings and interviews, a federal judge in the District 
and one in Iowa said they had policy differences with Congress and a 
judicial commission that they said did not go far enough to change 
the guidelines for crack sentences in 2007.

 From now on, the judges wrote, they will calculate sentences for 
crack offenders by using the more-lenient sentencing guidelines for 
powder cocaine crimes.

Recent Supreme Court rulings and supportive statements from top 
Justice Department officials paved the way for the judges' decisions. 
Nonetheless, such unilateral action from the bench is unusual. Legal 
scholars said the decisions highlight the judiciary's irritation at 
the slow pace of sentencing reform as Congress considers the first 
major revision of crack statutes in decades.

"The decisions are a very big deal, especially if they start a 
trend," said Douglas Berman, an Ohio State University law professor. 
"The fact that judges are doing this, and doing it vocally, shows 
they are frustrated. And it's garnering attention and could be the 
catalyst for Congress to act."

In recent years, a general consensus has emerged that crack sentences 
and guidelines are too stiff and unfairly affect African Americans. 
Attorney General Eric H. Holder Jr. and other Justice Department 
officials have said they believe that crack cocaine sentences are 
unfair. "It is time to do away with the disparity," Holder told 
Congress this month.

Rep. Robert C. Scott (D-Va.), chairman of the Judiciary subcommittee 
that handles such matters, said he expects legislation on crack 
sentences by year's end. The House is considering several proposals 
to change sentencing laws. "We need to fix this problem," he said.

Stiffer penalties for crack offenders were instituted in the 1980s, 
when many cities, including Washington, were plagued by violent crime 
blamed on the drug trade. But over the years, as sentences were 
imposed, many criticized the punitive disparity.

The law, passed without much research, dictated a 100-to-1 disparity 
in punishments for crack and powder cocaine crimes. So a person 
convicted of selling five grams of crack generally draws the same 
five-year mandatory minimum sentence as someone convicted of 
distributing 500 grams of powder cocaine.

When the U.S. Sentencing Commission, an independent agency in the 
judicial branch, eased the guidelines for crack offenders in 2007, it 
allowed imprisoned crack offenders to seek leniency. Adjustments have 
reduced prison terms by an average of two years for more than 12,000 
crack offenders.

But the two federal judges say that tweak does not go far enough.

"The unwarranted sentencing disparity between crack and powder 
cocaine sentences is one that has been written into the law and the 
guidelines, and there is no good reason for that," U.S. District 
Judge Paul L. Friedman of the District's federal court said.

In his opinion, Friedman declared he would use a "1-to-1" 
crack-powder ratio as a starting point in resentencing a convicted 
crack dealer, Anthony Lewis, 37, who faced 16 to 19 years under the 
old guidelines. The judge, who was already applying a 20-to-1 ratio 
in crack cases, said he would consider mitigating and aggravating 
factors as he applied the 1-to-1 guideline to each case.

In Lewis's case, the 1-to-1 ratio would have reduced his prison 
sentence from 13 1/2 years to less than five years, but the law 
required at least 10 years. The judge sentenced Lewis to 10 years and 
10 months in prison. The judge cited Lewis's "significant criminal 
history" in giving him more prison time than the mandatory minimum.

Friedman relied heavily on an opinion issued in May by U.S. District 
Judge Mark W. Bennett of the Northern District of Iowa, who used the 
guidelines for powder cocaine offenses to begin calculating the 
sentence of a crack dealer. The dealer eventually received a sentence 
within the two guideline ranges.

Both judges cited recent Supreme Court rulings giving the judiciary 
greater leeway in sentencing. In January, the Supreme Court said 
judges "are entitled to reject and vary categorically from the 
crack-cocaine Guidelines based on a policy difference with those Guidelines."

"I had an absolutely legitimate basis to disagree with the guidelines 
on a policy basis," Bennett said in a phone interview. "I have always 
been troubled by the disparate impact of the 100-to-1 ratio."

"I'm optimistic that some judge might agree with me," he added. "We 
might start a trend."

The judges also quoted congressional testimony in April by Assistant 
Attorney General Lanny A. Breuer, who said the Justice Department 
wants to "completely eliminate" the disparity.

Breuer said crack is not "inherently more addictive a substance than 
powder cocaine," adding that authorities could find no other narcotic 
"where the penalty structure differs so dramatically because of the 
drug's form." Cocaine powder is usually snorted; crack is created by 
boiling powder cocaine into a solid substance and is usually smoked.

Breuer noted that the sentencing gap has punished low-level crack 
dealers much more harshly than powder cocaine sellers, and statistics 
show that 82 percent of those sentenced in crack crimes are African 
Americans. (Blacks account for 27 percent of powder cocaine 
offenders.) Such statistics have "fueled the belief across the 
country that federal cocaine laws are unjust," he said, adding that 
most states do not treat the two forms of cocaine differently.

Justice Department officials declined to be interviewed for this 
article, but they are unlikely to appeal the recent rulings.

A former U.S. attorney for the District, Jeffrey A. Taylor, a 
Republican appointee, said prosecutors are concerned that judges will 
begin adopting their own sentencing standards.

He added that prosecutors also are uneasy about the possibility that 
Congress would reduce the sentences for crack offenses to the level 
of powder offenses. That would allow dealers to handle nearly 500 
grams of crack before risking a mandatory minimum sentence of five 
years. To alleviate some of the disparity, Taylor said, prosecutors 
would like Congress to ease up on crack while toughening powder 
cocaine sentences.

"No one in this town traffics in 500-gram quantities of crack, and we 
wouldn't want them to start," he said. "The dealers know exactly 
where these levels are set, and they will adjust their behavior accordingly." 
- ---
MAP posted-by: Richard Lake