A Positive Development in All the Sentencing Insanity:
How The Supreme Court and the U.S. Sentencing Commission Have Begun to Correct the Damage Done by the War on Drugs

By MARK ALLENBAUGH
Wednesday, Dec. 19, 2007

Since the Nixon Administration, our nation has been engaging in a relentless, yet futile War on Drugs--not on crime, but specifically on drugs. This war has not only been costly, but also done virtually nothing to stem the influx of drugs into our nation or Americans' drug use. In fact, some have argued that the War on Drugs has actually created incentives for illicit drug manufacturers to develop new products such as methamphetamine and Ecstasy, as well as to develop better and more efficient distribution channels through Mexico, and perhaps even China.

And yet, despite clear indications that we long ago lost this war (at least as defined by the ways we are fighting it and the rhetoric we use), we mindlessly continue along the same path.

But despite all this despairing history, there now is a glimmer of hope for more sane drug sentencing - in the form of two December 10 decisions from the Supreme Court.

The Cost, and the Failure, of the War on Drugs

What this War on Drugs has accomplished is nothing short of shocking and disheartening. Of the estimated nine million persons incarcerated worldwide, over two million, or over 22%, are located here in the United States--a country that makes up less than five percent of the world's population and purports to be the leader of the free world.

Not surprisingly, we also lead the world in incarceration rates, at 714 per 100,000 persons. In contrast, according to the World Prison Population List commissioned by King's College of London, the median prison population rates for African countries is 52 to 324, the Americas 152 to 324, Asia 55 to 386, and Europe 80 to 184. And this is to say nothing of the gross racial disparities we continue to see with respect to the incarceration rates of certain minority groups in this country.

The Culprit for the U.S.'s Staggering Incarceration Rate: Mandatory Minimums

These outrageous statistics primarily are the result of simplistic, overly-punitive drug sentencing policies, first promulgated in the 1980s, known as mandatory minimum sentences. These mandatory minimum laws require, as I discussed in a prior column, a mandatory five years of imprisonment for a mere five grams of crack cocaine, and ten years for ten grams.

But along with these draconian mandatory sentences also came an inherent disparity: For what is virtually the same drug--powder cocaine--the penalties were 100 times less severe. This led to extreme racial disparities in prosecutions and sentences, with African-American men suffering the brunt of these ill-conceived laws.

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Given the length of these sentences and the resources devoted to the War on Drugs, it comes as no surprise that, according to the latest statistics from the Federal Bureau of Prisons, over half the inmates in the federal penal system--which is, by the way, 34% over capacity--are serving time for drug offenses. In contrast, only 11% are serving time for violent crimes such as homicide, aggravated assault, kidnapping, sex offenses and the like.

Virtually since the inception of mandatory minimum sentencing laws, many have called for their repeal. In fact, in a 2003 address to the American Bar Association, Justice Anthony Kennedy stated that "I can accept neither the necessity nor the wisdom of federal mandatory minimum sentences. In too many cases, mandatory minimum sentences are unwise and unjust."

Likewise, in a concurrence in part and concurrence in the judgment in Harris v. United States--a case that found the mandatory minimums constitutional-- Justice Stephen Breyer also stated, "Mandatory minimum statutes are fundamentally inconsistent with Congress' simultaneous effort to create a fair, honest, and rational sentencing system through the use of Sentencing Guidelines. Unlike Guideline sentences, statutory mandatory minimums generally deny the judge the legal power to depart downward, no matter how unusual the special circumstances that call for leniency. They rarely reflect an effort to achieve sentencing proportionality--a key element of sentencing fairness that demands that the law punish a drug 'kingpin' and a 'mule' differently. They transfer sentencing power to prosecutors, who can determine sentences through the charges they decide to bring, and who thereby have reintroduced much of the sentencing disparity that Congress created Guidelines to eliminate." (Citations omitted).

Ultimately it was this removal of judicial sentencing discretion that created such enormous problems with mandatory minimum sentencing schemes. And because the U.S. Sentencing Commission decided to overlay the drug sentencing guidelines onto the five and ten-year mandatory minimums, the same fundamental unfairness transferred onto them, including the infamous 100-to-1 powder/crack cocaine sentencing disparity.

Fortunately, two very recent Supreme Court decisions promise to at least improve the situation.

The Kimbrough and Gall Decisions: A Victory for Judicial Sentencing Discretion

On December 10 of this year, the Supreme Court further clarified its 2005 holding in Booker v. United States that the Federal Sentencing Guidelines were merely advisory. The Court held in Kimbrough v. United States that the drug sentencing guidelines were no different than any of the other sentencing guidelines: they too were merely advisory.

The majority of Justices held that it was permissible for a judge to impose a sentence outside the recommended Guidelines range, even if the judge's decision in part arose from his or her disagreement with the Congressionally-created 100-to-1 quantity ratio. The Judge's duty, the Court reasoned, is to impose a sentence that will parsimoniously advance the purposes sentenceing listed in the sentencing statute. The fact that Congress imposed a particular ratio between different drugs, and that the Commission incorporated this ratio into the guidelines, does not preclude the sentencing judge from finding that the ratio results in an inappropriate sentence in a particular case. Of course, sentencing judges still are bound by the statutory mandatory minimum and maximum sentences, but they retain the discretion to impose a reasonable sentence while staying within the applicable statutory range.

Similarly, in Gall v. United States, decided the same day and also a drug sentencing case, the Court upheld a sentence of straight probation where the Guidelines had called for a sentence of 30 to 37 months. (There was no mandatory minimum applicable.) Again, clarifying the Booker holding that the guidelines are merely advisory, the Court overturned an opinion by the U.S. Court of Appeals for the Eight Circuit that had held that such a significant departure from the Guidelines required "extraordinary" circumstances. The Court held that sentencing judges are to be afforded a high level of discretion when imposing a sentence, even a sentence significantly different from what the Guidelines call for. The extent or strength of the justification for a non-Guidelines sentence, the Court said, does not depend on the mathematical distance of the sentence from the advisory guidelines range.

As a result of the Kimbrough and Gall decisions, much of the discretion that had long ago been lost to sentencing judges, during the War on Drugs, has been restored. The decisions shift the power to determine sentences away from the Sentencing Guidelines, prosecutors and circuit courts of appeal, which, since Booker, had often rejected particular grounds upon which judges have based their sentences. These decisions rightly place that power back in the hands of the district court judges most familiar with the facts of the offense and the offender upon whom they are imposing a sentence.

While sentencing judges still must properly calculate the Guidelines advisory sentencing range, and carefully consider it, the Court emphasized that, while the Sentencing Commission is in the best institutional position to formulate general sentencing policy guidance, the sentencing judge is in the best position to evaluate the sentencing outcome of the individual case before him or her.

The Commission's Amendment and Retroactive Application of the Crack Sentencing Guidelines

While the Commission had incorporated into the crack sentencing guideline the 1:100 quantity ratio established by the mandatory minimums, it had argued for twelve years that the ratio could not be justified. Crack and powder cocaine are pharmacologically- equivalent drugs that differ only in their method of ingestion. The harms of crack are found with powder as well, and even crack's addictiveness, which is a consequence of its being smoked, can be found with powder cocaine when it is smoked or injected. All crack is initially imported and distributed as powder. So the harsher treatment of crack, which falls disproportionately on African-Americans, cannot logically be justified.

After years of attempting to convince Congress to change the statutory ratio, the Commission this year decided to act. Earlier this year, in an effort to address what it saw as an "urgent and compelling" need to address the 100-to-1 sentencing disparity, it amended the Guidelines to lower the Guidelines range associated with crack by two offense levels, which translates into sentence decreases averaging 27 months. At the same time, the Commission advised Congress that this Amendment was only a partial solution to the problem of the 100:1 quantity ration, and asked Congress to amend the statutes to reflect more just and fair treatment of the two forms of cocaine at sentencing.

While this amendment took effect on November 1, 2007, it offered no relief to persons currently incarcerated before that date. The question before the Commission at its December meeting, therefore, was whether to make this amendment retroactive to the nearly 20,000 offenders currently imprisoned who could have potentially benefited from this change had the amendment been in effect at the time of their sentencing.

Fortuitously, the day after the Kimbrough and Gall decisions, the U.S. Sentencing Commission voted unanimously to make retroactive the recent change it had made to the drug Guidelines. This amendment became effective November 1, 2007, and the Commission voted to make it retroactive effective March 8, 2008.

According to the Commission, "[c]urrent data and information continue to support the Commission's consistently held position that the 100-to-1 drug quantity ratio significantly undermines various congressional objectives set forth in the Sentencing Reform Act and elsewhere."

While the amended crack sentencing guidelines are still mapped onto the mandatory minimum sentences, they do offer at least "an interim solution to some of the problems associated with the 100-to-1 drug quantity ratio. . . . Any comprehensive solution to the 100-to-1 drug quantity ratio requires appropriate legislative action by Congress."

What Will Congress Do?

Now that the Supreme Court has moved toward restoring significant sentencing discretion in the district courts, and the Commission has done what it can to mitigate the onerous impact of mandatory minimum drug sentences, it is time for Congress to finally act to finish the reforms that the Court and the Commission have started.

Unfortunately, history suggests that the time may not be right for Congress to act, given that this is an election year, although some presidential candidates have at least made efforts to address our national addiction to incarceration.

In all events, it is far past time for politicians to cease talking about the "War on Drugs" and being "Tough on Crime." Such rhetoric has only led the U.S. to becoming the "Incarceration Nation."

What we need, instead, is strong Congressional and Executive leadership that is willing to stop the madness of the War on Drugs and change our approach from "tough" to "intelligent." Rather than incarcerate, we should educate, motivate, and innovate. There are better, less expensive, and more effective ways to minimize and prevent drug abuse than replacing judicial sentencing discretion with mindless mandatory minimums and overcrowded prisons. Apparently, we are the only nation on earth that has not yet figured out this out.


Mark H. Allenbaugh is a partner with the law firm of Allenbaugh Samini LLP with offices in Newport Beach, California; Washington, D.C.; and Guangzhou, China. He is Director of the firm's Federal Criminal Defense Division, and is a former Staff Attorney for the U.S. Sentencing Commission. The views expressed herein are the author's own and do not necessarily reflect the views of any of the named organizations.

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