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Both Houses Hold Hearings on Sentencing Disparity
Existing sentencing policies on cocaine have a corrosive effect upon the public's confidence in the federal courts, Judge Reggie Walton (D. DC) told the Senate Judiciary Subcommittee on Crime and Drugs on February 12, and the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security on February 26, 2008. Walton is a member of the Judicial Conference Committee on Criminal Law and a former White House Associate Director of the Office of National Drug Control Policy. He testified before Senate and House subcommittees holding hearings on current federal cocaine sentencing laws to convey the Conference position on the sentencing disparity between crack and powder cocaine and to share his own views on the issue. Walton told the subcommittees that both the effect on public confidence and concerns for equity and fundamental fairness are behind Judicial Conference support for legislation to remedy the sentencing disparity between powder and crack cocaine offenses.
Senator Joseph Biden (D-Del.) chaired the Senate subcommittee. Last year he introduced legislation that would eliminate the crack/powder disparity.
"Under current law, mere possession of 5 grams of crack—which is slightly less than the weight of two sugar cubes—carries the same 5-year, mandatory minimum sentence as distributing 500 grams of powder cocaine," Biden said. "Many have argued that this 100-to-1 disparity is arbitrary, unnecessary, and unjust—and I agree. The current disparity in cocaine sentencing simply cannot be justified based on the facts as we know them today."
In both the House and the Senate, Walton testified alongside U.S. Sentencing Commission chair Judge Ricardo H. Hinojosa, who said that "any comprehensive solution . . . requires revision of the current statutory penalties and therefore must be legislated by Congress."
Also testifying in the Senate were James Felman, co-chair of the American Bar Association's Sentencing Committee; Nora Volkow, Director of the National Institute on Drug Abuse, U.S. Department of Health and Human Services; and U.S. Attorney Gretchen Shappert, representing the Department of Justice. Shappert said that DOJ "is open to addressing the differential between crack and powder penalties as part of an effort to resolve the retroactivity issue," but that any reform to cocaine sentencing must come from Congress and should apply only prospectively.
In the House, several Representatives who have introduced bills that would reduce the sentencing disparity that exists between crack and powder cocaine also testified: Representative Roscoe G. Bartlett (R-MD), who has introduced H.R. 79; Representative Sheila Jackson-Lee (D-TX) with H.R. 4545, which complements Biden's bill in the Senate; and Representative Charles B. Rangel (D-NY), who has introduced H.R. 460. Subcommittee chair, Representative Bobby Scott (D-VA), also has introduced a bill, H.R. 5035.
"The time has come," said Jackson-Lee, a member of the House Judiciary Committee, "to finally right the wrongs created with the original drug sentencing legislation of 1986." In turn, Rangel urged Congress to "do away with the 20-year legacy of an unjust and nonsensical drug policy." Representative Lamar Smith (R-TX), ranking member of the House Judiciary Committee, while not directly addressing the disparity issue, urged Congress to act to stop the retroactive application of changes to the Sentencing Guidelines.
Hinojosa and Shappert testified before the House subcommittee with Walton, along with Maryland State Attorney Joseph Cassilly; Federal Public Defender for the Eastern District of Virginia Michael Nachmanoff; and Michael Short, a former offender whose nearly 20-year sentence for selling crack cocaine was commuted by President Bush.
Congress established the current crack/powder disparity with the passage of the Anti-Drug Abuse Act of 1986, believing at the time that crack cocaine was uniquely addictive and associated with greater levels of violence than powder cocaine.
"Because experience has shown that many of the foundations of the 1986 Act were flawed, and because the existing disparity may actually frustrate (instead of advance) the goals of the Sentencing Reform Act," Walton said, "there is now widespread support by many in the United States to reduce the existing sentencing disparity between crack and powder cocaine."
Walton told the subcommittees that he has had citizens refuse to serve on a jury because they are familiar with the existing disparity between crack and powder sentences and believed that federal statutes are racist. He noted that, while African-Americans comprise approximately 12.3 percent of the U.S. population, they comprise approximately 81.8 percent of federal crack cocaine offenders. And because crack offenses carry longer sentences than equivalent powder cocaine offenses, African-American defendants sentenced for cocaine offenses wind up serving prison terms that are greater than those served by other cocaine defendants.
"The disparate impact of crack sentencing on African-American communities shapes social attitudes," Walton said. "When large segments of the African-American population believe that our criminal justice system is racist, it presents the courts with serious practical problems. People come to doubt the legitimacy of the law—not just the law associated with crack, but all laws."
Walton told both subcommittees that, while the Judicial Conference strongly supports legislation to reduce the "unsupportable" sentencing disparity between crack and powder cocaine, it has no established view on whether the disparity should be reduced by raising penalties for powder, reducing penalties for crack, or through some combination of both approaches. However, it does oppose mandatory minimum penalties and favors legislation leaving sentencing decisions to judges. Walton suggested, "Congress may find it prudent to reconsider whether existing minimum penalties are necessary to achieve the goals of sentencing. This would be consistent with the parsimony provision of the Sentencing Reform Act."
In summary, Walton told the subcommittees, "As a representative of the Judicial Conference and as a sentencing judge who is regularly called upon to impose sentences on crack defendants, I encourage Congress to pass legislation that would reduce the disparity between crack and powder cocaine sentences."