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May 2009

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This article is in the news archives --- for current news go to the Third Branch News.


Judicial Conference, DOJ, Testify Before Congress on Crack-Powder Sentencing Disparity

In a hearing last month before the Senate Judiciary Subcommittee on Crime and Drugs, representatives of the Judicial Conference and the Department of Justice (DOJ) urged Congress to pass legislation reducing the disparity in sentencing between crack and powder cocaine.

Judge Reggie B. Walton (D.D.C.), a member of the Criminal Law Committee, told the subcommittee: “The Judicial Conference strongly supports legislation to reduce the sentencing disparity between crack and powder cocaine.” Testifying alongside Walton were U.S. Sentencing Commission Acting Chair Judge Ricardo Hinojosa and U.S. Assistant Attorney General Lanny A. Breuer.

“The Administration believes Congress’ goal should be to completely eliminate the sentencing disparity between crack cocaine and powder cocaine,” Breuer told the subcommittee.

In his opening remarks, Senator Richard J. Durbin (D-IL), chair of the Subcommittee on Crime and Drugs, said that the crack-powder disparity “is one of the most significant causes of the disparity in incarceration rates between African-Americans and Caucasians,” racial disparities that “undermine trust in our criminal justice system.” He called for a “comprehensive approach that cracks down on drug trafficking organizations while emphasizing prevention and treatment for addicts.” Durbin urged the complete elimination of the crack-powder disparity and the adoption of a one-to-one sentencing ratio for crack and powder cocaine.

Walton also pointed to the unequal impact on minorities of the sentencing disparity between crack and powder cocaine. While African-Americans comprise less than 12.4 percent of the U.S. population, they comprise approximately 81.8 percent of federal crack cocaine offenders, but only 27 percent of federal powder cocaine offenses. As a result, African-American defendants sentenced for powder cocaine offenses serve prison terms greater than those served by other cocaine defendants.

“In June 2006, the Criminal Law Committee discussed the fact that 100 times as much powder cocaine as crack is required to trigger the same five-year and ten-year mandatory minimum penalties, resulting in crack sentences that are 1.3 to 8.3 times longer than their powder equivalents,” Walton told the subcommittee. Noting that most informed commentators agree that the ratio between crack and powder is unwarranted, the Committee concluded that “this disparity between sentences was unsupportable, and undermined public confidence in the courts.”

In September 2006, the Judicial Conference voted to “oppose the existing differences between crack and powder cocaine sentences and support the reduction of that difference.” In 2007 the U.S. Sentencing Commission amended downward the guideline for crack cocaine. Congress permitted the amendment to become effective on November 1, 2007.

Walton noted that the courts “managed ably,” reviewing more than 19,000 motions for sentencing modification. Available data suggests that recidivism rates among those whose sentences were reduced are no higher than relevant comparison groups.

Congress established the crack-powder disparity with the passage of the Anti-Drug Abuse Act of 1986 because, according to Walton, there was a concern that crack cocaine was uniquely addictive and associated with greater levels of violence than was powder cocaine. But despite fears, the anticipated national epidemic of crack use never materialized. He said that the existing disparity may actually frustrate (instead of advance) the parity in punishment that was the goal of the Sentencing Reform Act of 1984.

“The reform of federal cocaine sentencing can be done in a safe and efficient manner,” Walton said. “As a representative of the Judicial Conference and as a sentencing judge who is regularly called upon to impose sentences on crack defendants, I urge Congress to pass legislation that would reduce the disparity between crack and powder cocaine sentences.”

Breuer said that, over the next few months, a DOJ working group will examine federal sentencing and corrections policy.

“The group’s comprehensive review will include possible recommendations to the President and Congress for new sentencing legislation affecting the structure of federal sentencing,” said Breuer. “In addition to studying issues related to prisoner reentry, Department policies on charging and sentencing, and other sentencing-related topics, the group will also focus on formulating a new federal cocaine sentencing policy, one that completely eliminates the sentencing disparity between crack and powder cocaine but also fully accounts for violence, chronic offenders, weapon possession, and other aggravating factors associated—in individual cases—with both crack and powder cocaine trafficking.” DOJ also will develop recommendations for legislation.