November 1, 2007 — Vol. 43, No. 12
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Fixing cocaine sentencing laws

Kara Gotsch

This month, the U.S. Supreme Court heard a case that touched on a 20-year-old controversy involving justice and crack cocaine. The court will rule early next year in Kimbrough v. United States whether a federal district judge’s more lenient sentencing decision, based on his disagreement with policy that punishes crimes involving crack cocaine more harshly than those involving powder cocaine, is reasonable. The case will help judges determine their ability to sentence below an advisory guideline range. Unfortunately, the outcome will leave in place the excessive mandatory penalties that the Kimbrough judge found unjust.

The case of Derrick Kimbrough stems from his 2005 guilty plea in Virginia for possession with intent to distribute 56 grams of crack cocaine and possession of a firearm. Kimbrough, a veteran of Operation Desert Storm with no previous felony convictions, was prosecuted in federal court, where penalties involving crack cocaine are harsher than in state systems. As a result, instead of receiving a sentence of about 10 years under Virginia law, he faced a federal sentencing guideline range between 19 and 22 years.

Federal District Judge Raymond A. Jackson, who presided over Kimbrough’s case, called the recommended guideline sentence “ridiculous” and instead sentenced Kimbrough to 15 years, the minimum required by mandatory sentencing laws.

The sentencing range in this case and many other drug-related cases is tied to mandatory minimum sentences passed by Congress in the 1980s. Lawmakers intended to impose tough penalties on high-level drug market operators, such as heads of drug organizations and major drug traffickers.

However, the small quantities that trigger mandatory minimum sentences for crack cocaine offenses largely entangle defendants with bit roles in the crack trade. In 2006, more than 60 percent of federal crack cocaine defendants had only low-level involvement in drug activity, such as street-level dealers, couriers or lookouts. State criminal justice systems are well equipped to handle these kinds of cases, but are unable to pursue the importers and international traffickers who bring drugs into the country. Stopping drugs from crossing America’s borders is the domain of federal law enforcement, but federal resources are being misdirected.

Had the drugs Kimbrough possessed been solely powder cocaine, the amount would not have triggered a mandatory minimum sentence or the lengthy sentencing guideline range.

Indeed, it takes 5,000 grams of powder cocaine — 100 times the amount of crack cocaine Kimbrough possessed — to warrant a 10-year mandatory. This dramatic sentencing disparity exists despite the fact that the drugs are pharmacologically identical — crack is made by cooking powder cocaine with baking soda and water. Both drugs produce equally harmful effects on the body.

Is 10 years in prison for a nonviolent drug offense money well spent? The U.S. Justice Department says yes, but many in Congress disagree, and a bipartisan group is seeking to change the crack cocaine sentencing law. Since May, three proposals to reform sentencing laws have been introduced in the Senate. Each bill would reduce the quantity disparity between crack and powder cocaine necessary to trigger a mandatory minimum sentence. One proposal that would equalize the penalties for crack and powder cocaine goes the farthest to shift federal law enforcement focus from street-level dealers, like Kimbrough, towards high-level traffickers.

The momentum in Congress is buoyed by a recent report from the U.S. Sentencing Commission, which finds that the penalties for cocaine offenses “overstate the relative harmfulness of crack cocaine” and “sweep too broadly and apply most often to lower-level offenders.” The Commission has recommended statutory reforms to Congress and has proposed an amendment to decrease the guideline offense level for crack cocaine offenses. The amendment could reduce crack sentences by 15 months on average and would go into effect Nov. 1, as long as Congress does not act to reject it. However, it would not change the statutory mandatory minimums.

The Supreme Court’s consideration of the magnitude of discretion afforded to federal judges is a step towards creating a more just sentencing system. However, regardless of the Court’s action on this case, without Congress altering the harsh mandatory penalties for crack cocaine offenses, America’s sentencing policy will remain unreasonable.

Kara Gotsch is the director of advocacy at The Sentencing Project, a Washington, D.C.-based organization promoting reforms in sentencing law and practice, and alternatives to incarceration.

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