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United States Sentencing Commission, Cocaine and Federal Sentencing Policy (May
2007).
Available at: http://www.ussc.gov/r_congress/cocaine2007.pdf
“Current data and information continue to support the core findings contained
in the 2002 Commission Report, among them:
- The current quantity-based penalties overstate the relative
harmfulness of crack cocaine compared to powder cocaine.
- The current quantity-based penalties sweep too broadly and
apply most often to lower level offenders.
- The current quantity-based penalties overstate the seriousness
of most crack cocaine offenses and fail to provide adequate proportionality.
The current severity of crack cocaine penalties mostly impacts
minorities.” Id.at 8-9.
“The majority of federal cocaine offenses do not involve aggravating
conduct.” Id.at 14.
Given the “urgent and compelling” nature of the problems associated with
the 100-to-1 drug quantity ratio, describing the Commission’s decision to
“partially address some of the problems” by adjusting downward by two levels
crack cocaine quantities above, below, and between the statutory mandatory
minimums. Id.at 9.
The amendment is “neither a permanent nor a complete solution” to the
problems associated with the 100-to-1 drug quantity ratio. Id.at 9-10.
United States Sentencing Commission, Fifteen Years of Guidelines Sentencing: An
Assessment of How Well the Federal Criminal Justice System is Achieving the Goals of
Sentencing Reform (2004).
The United States Sentencing Commission evaluation stated that the 100-to-
1crack/powder cocaine quantity ratio disproportionately impacts a “particular
offender group,” (again, African-Americans) but serves “no clear sentencing
purpose” because the “[t]he harms associated with crack cocaine do not
justify its substantially harsher treatment compared to powder cocaine.” Id.
at 132-33.
“The harms associated with crack cocaine do not justify its substantially
harsher treatment compared to powder cocaine.” Id.at 132.
“Powder cocaine is easily converted into crack cocaine through a simple
process involving baking soda and a kitchen stove. Conversion usually is
done at the lowest levels of the drug distribution system. Large percentages
of the persons subject to five- and ten-year penalties under the current rules
do not fit the category of serious or high-level trafficker that Congress
described when initially establishing the five- and ten-year penalty levels.
Most crack cocaine offenders receiving sentences greater than five years are
low-level street dealers. For no other drug are such harsh penalties imposed
on such low-level offenders. High penalties for relatively small amounts of
crack cocaine appear to be misdirecting federal law enforcement resources
away from serious traffickers and kingpins toward street-level retail dealers.”
Id.at 132.
United States Sentencing Commission, Cocaine and Federal Sentencing Policy (May
2002).
Available at: http://www.ussc.gov/r_congress/02crack/2002crackrpt.pdf
The 100-to-1 ratio “fails to meet the sentencing objectives set forth by
Congress in both the Sentencing Reform Act and the 1986 Act.” Id.at 91.
Concluding that ‘there is no authoritative legislative history that explains
Congress’s rationale for selecting the 100-to-1 drug quantity ratio for powder
cocaine and crack cocaine offenses.” Id.at 7.
Anne E. Blanchard & Kristen Gartman Rogers, “Presumptively Unreasonable: Using the
Sentencing Commission’s Words to Attack the Advisory Guidelines,” The Champion, March
2005, at 24.
“The Commission’s desire to create an evenly-spaced grid took precedence
over sparing defendants whose drug amounts fell between the amounts
specified in the mandatory minimum statutes. By admitting this, the
commission creates an opportunity for you to challenge the reasonableness
of drug trafficking guideline sentences falling between the statutory
mandatory minimums.” Id. at 27.
James Egan & Molly Roth, Good Math to Fight the Bad Math: Avoiding Unwarranted
Disparity by Applying the Commission’s Lowest Accepted Ratios to All Offense Levels
(March 11, 2008).
Available at: http://www.fd.org/odstb_CrackCocaine.htm
Presenting the case that the lowest crack ratios incorporated in the Nov. 1,
2008 amendments should be applied at all base offense levels. While
maintaining that a 1:1 ratio is the only truly equitable fix, urging counsel to
use the Commission’s current lowest ratios—25:1 powder to crack and
5,000:1 marijuana to crack—to assert an intermediate fix that is more
equitable than the current crack guidelines.
James Egan, Faulty Math in New Cocaine Base Equivalency Table (Jan. 18, 2008)
Available at: http://www.fd.org/odstb_CrackCocaine.htm
Addressing the Commission’s failure to appropriately update the conversion
table to account for the two-level reduction in crack cases after November 1,
2008. Comparing the pre- and post-amendment crack cocaine/marijuana
conversion table in USSG § 2D1.1, analyzing the impact of the amendment
at each base offense level, and suggesting an algebraic formulae that more
justly determine a client’s offense level under the amended guidelines.
Pamela A. Maclean, After Booker, Judges Reduce Crack Cocaine Sentences, The National
Law Journal, October 11, 2005.
Available at: http://www.law.com/jsp/article.jsp?id=1128947761797
“What has emerged among recent federal court rulings are expression by
some of the jurists that a more reasonable ratio would be a 20-to-1 difference
between crack and cocaine.”
Diana Murphy, Statement to Senate Judiciary Committee, May 22, 2002, reprinted in 14
Fed. Sent. Rep. 236-39 (Nov./Dec. 2001- Jan./Feb. 2002).
“[A]ggravating conduct occurs in only a small minority of crack cocaine
offenses” and it “does not differ substantially from the prevalence in powder
cocaine offenses.”
Two-thirds of federal crack-cocaine defendants are street-level dealers.
William Spade, Jr., Beyond the 100:1 Ratio: Towards a Rational Cocaine Sentencing
Policy, 38 Ariz. L. Rev. 1233, 1249 (Winter 1996).
“The 500 grams of cocaine that can send one powder defendant to prison for
five years can be distributed to eighty-nine street dealers who, if they
converted it to crack, could make enough crack to trigger the five year
mandatory minimum for each defendant.”
Ryan King & Marc Mauer, Sentencing with Discretion: Crack Cocaine Sentencing After
Booker (Jan. 2006).
Available at: http://www.sentencingproject.org
Provides a comprehensive analysis of 24 written federal court decisions in
2005 that specifically implicate Booker to assess how courts have adjusted
sentencing strategies for crack cocaine under this new system.
American Bar Association Justice Kennedy Commission, Report with Recommendations
to the ABA House of Delegates (August 2004).
Available at: www.sentencing.typepad.com
“[The Anti-Drug Abuse Act of 1986's] differential treatment of crack and
powder cocaine has resulted in greatly increased sentences for African-
American drug offenders.” Id.at 28.
The Act also “makes crack one of only two drugs for which possession is a
felony” and it “prescribes crack as the only drug that triggers a mandatory
minimum sentence for mere possession.” Id.at 28.
“The overwhelming majority of crack defendants are African-American, while
the overwhelming majority of powder cocaine defendants are white or
Hispanic.” Id.at 28.
United States Sentencing Commission, Fifteen Years of Guidelines Sentencing: An
Assessment of How Well the Federal Criminal Justice System is Achieving the Goals of
Sentencing Reform (2004).
This United States Sentencing Commission evaluation states that the 100-to-
1 crack/powder cocaine quantity ratio disproportionately impacts a “particular
offender group,” (again, African-Americans) but serves “no clear sentencing
purpose” because the “[t]he harms associated with crack cocaine do not
justify its substantially harsher treatment compared to powder cocaine.” Id.
at 132-33.
“The harms associated with crack cocaine do not justify its substantially
harsher treatment compared to powder cocaine.” Id.at 132.
“Powder cocaine is easily converted into crack cocaine through a simple
process involving baking soda and a kitchen stove. Conversion usually is
done at the lowest levels of the drug distribution system. Large percentages
of the persons subject to five- and ten-year penalties under the current rules
do not fit the category of serious or high-level trafficker that Congress
described when initially establishing the five- and ten-year penalty levels.
Most crack cocaine offenders receiving sentences greater than five years are
low-level street dealers. For no other drug are such harsh penalties imposed
on such low-level offenders. High penalties for relatively small amounts of
crack cocaine appear to be misdirecting federal law enforcement resources
away from serious traffickers and kingpins toward street-level retail dealers.”
Id.at 132.
Amy Baron-Evans, Sentencing Resource Counsel, Enforcing the New Sentencing Law:
Advanced Federal Criminal Appellate Practice Seminar, March 2006.
“The Commission has recommended reducing the 100:1 powder to crack
ratio because ‘the harms associated with crack cocaine do not justify its
substantially harsher treatment compared to powder cocaine,’ but Congress
has not yet acted on that recommendation.’ Id.at 14.
“As the May 2002 Commission Report concludes, ‘there is no authoritative
legislative history that explains Congress’s rationale for selecting the 100 to
1 drug quantity ratio for powder cocaine and crack cocaine offenses.” Id.at
28.
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