The U. S. Sentencing Commission Considers Shortening Terms for Imprisoned Crack Offenders: Should the Reduction of the Disparity Between Crack and Powder Cocaine Sentencing Be Retroactive?

By MARK ALLENBAUGH AND PAUL HOFER
Monday, Nov. 19, 2007

Congressionally-mandated minimum penalties are the source of the infamous 100-to-1 powder- to-crack sentencing ratio. For example, the mere possession of five grams of crack cocaine requires a court to impose a minimum term of five years' imprisonment, regardless of mitigating factors that may be present in the case. In contrast, the possession with intent to distribute 500 grams of powder cocaine is required to trigger the five-year mandatory minimum.

This disparity has led to gross unfairness. Moreover, many claim this unfairness represents a form of racial discrimination, since empirically, powder cocaine is more likely to be used in white communities, and crack cocaine in minority communities. Fortunately, on November 1 of this year, the U.S. Sentencing Commission promulgated less onerous sentencing guidelines for crack offenses. While statutory mandatory minimums remain in place, this is still a promising turn of events for advocates of saner sentencing policies.

Now that the new, amended crack Sentencing Guidelines have become law, the Commission must decide whether the amendment should be made retroactive. In this column, we discuss the considerations relevant to answering that question.

Background: How Mandatory Minimums and the U.S. Sentencing Guidelines Intersect

For over twenty years, the federal criminal justice system has labored under the burden of two separate, competing, and inconsistent sentencing schemes: the U.S. Sentencing Guidelines, and mandatory minimum statutory penalties. The Guidelines were promulgated by, and are regularly amended by, the U.S. Sentencing Commission, an independent agency within the federal judicial branch. While only advisory, according to recent Supreme Court precedent, the Guidelines nevertheless provide federal judges with a rather sophisticated system for meting out sentences that take into consideration several wide-ranging facts about the offense and the offender, and still provide the court with the ability to exercise discretion when imposing a sentence.

In contrast, whereas the Guidelines are sophisticated, mandatory minimum penalties are rather crude, triggered simply by the amount of drugs involved or possession of a firearm. Mandatory minimum penalties do not provide for the consideration of other relevant factors regarding the offense or the offender, and thereby nearly eliminate the ability of courts to exercise sound sentencing discretion.

In order to introduce some consistency between the two competing systems, the Commission early on decided that the drug sentencing guidelines it promulgated should be linked to the mandatory minimum penalties dictated by Congress. Nevertheless, the U.S. Sentencing Commission, as well as many other organizations, has consistently lobbied Congress to eliminate mandatory minimum penalties and to reduce the legislated disparity between powder and crack cocaine sentences, but without success.

Should the Amended Crack Sentencing Guidelines Be Retroactive, Permitting Early Release? The Commission's Criteria for the Decision

On November 13, the Commission held a day-long hearing in Washington, D.C., to consider the retroactivity question, after having received over 30,000 letters in support of retroactivity.

According to a Commission analysis, nearly 20,000 federal drug offenders could become eligible for early release from prison by an average of 27 months if the amendment is made retroactive. This would be especially significant because, since the abolition of parole in the federal system in 1987, imprisoned offenders have few opportunities to reduce the length of their sentence.


By federal statute, when the Commission amends the guidelines for an offense, it may specify "in what circumstances and by what amount the sentences of prisoners serving terms of imprisonment for the offense may be reduced." Moreover, the Commission has previously, though rarely, made guideline amendments retroactive. Examples include amendments for trafficking in LSD, OxyContin and marijuana plants. However, none of these potentially affected as large a number of offenders as the change to the crack guideline currently under consideration.

The Commission has developed criteria that guide its decisions on whether an amendment should be made retroactive, including the purpose of the amendment, the magnitude of the change in the guideline range made by the amendment, and the difficulty of applying the amendment retroactively.

First, the purpose of the crack amendment is clear: to address a longstanding injustice that has punished crack offenders--the vast majority of whom are African-American--more harshly than is warranted by the seriousness of their offense. This disparity is particularly glaring relative to powder cocaine. Powder cocaine, after all, is the essential ingredient from which crack cocaine is made and is otherwise pharmacologically equivalent to crack.

Second, the magnitude of the change in the guideline range under the crack amendment is smaller than with some previous amendments, but, as noted above, the number of offenders who might benefit is far larger. Commission analyses estimate that 3,804 offenders would qualify for release consideration within the next year; another 17,300 would qualify over the next decade. Crack offenders from every state who were sentenced in federal court would be affected.

Third, and finally, the criterion of the difficulty of applying the amendment retroactively was carefully considered at the hearing. Simply processing the motions for reconsideration of sentence that a federal statute requires (in subsection u) would impose a burden on the courts. But Judge Reggie Walton, speaking on behalf of the Criminal Law Committee of the federal courts, testified at the November 13 hearing that judges and probation officers were prepared to shoulder this burden in the interest of justice.

Moreover, although the cost of reviewing crack sentences could be in the millions, witnesses testified that the savings to the Bureau of Prisons and the American taxpayer would be far greater. Estimates of savings ranged from $1 billion to $1.7 billion in reduced incarceration expenses and prison construction--money that several witnesses argued could be better spent on drug use prevention and rehabilitation.

In the end, the line-up of witness opinion reflected the adversarial roles seen in courtrooms every day. Federal judges, Public Defenders and other defense counsel, the American Bar Association, and advocacy groups like the Sentencing Project, the NAACP, and Prison Fellowship Ministries, testified in favor of retroactivity. However, the Department of Justice, the National District Attorneys Association, and the Fraternal Order of Police testified against it.


Even if Retroactive Sentence Reductions are Authorized, They Will Not Be Automatic

Even if the Commission makes the crack amendment retroactive, not every crack offender will necessarily get a sentence reduction. The relevant federal statute states that courts "may reduce the term of imprisonment . . . if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission" (emphasis supplied). In addition, Commission members seemed interested in ways to limit the scope of issues that would be litigated at sentence reduction hearings.

Most importantly, Commissioners were concerned that the early release of offenders could affect public safety. Analyses show that over a third of the offenders who would qualify for retroactive application of the amendment had possessed or used a gun in relation to their offense. Almost 80 percent had a criminal record that increased their prison term.

On the other hand, the majority of crack offenders sentenced in the federal courts are not "kingpins" or wholesale-level dealers. Most are street dealers selling directly to users. When these offenders are taken off the street, others easily replaced them to meet user demand, making it doubtful that their release would significantly affect the crack market.

It remains unclear whether the Commission will issue policy statements to limit the types of offenders eligible for a sentence reduction, or give guidance to courts as to how to conduct their sentence review. Judge Walton and other witnesses expressed confidence that judges could be trusted to use their discretion to ensure that dangerous offenders are not released to the community prematurely.

Further Complications Will Arise From Recent and Pending Supreme Court Cases

Meanwhile, recent and pending Supreme Court decisions make the effects of retroactivity more difficult to assess. Nearly three years ago, in United States v. Booker, the Court rendered the federal guidelines "advisory" rather than "mandatory" and made sentences reviewable under a "reasonableness" standard.

The full implications of Booker are still developing, and will be explored in other decisions to be decided this term. U.S. v. Kimbrough, moreover, specifically involves the guideline for crack, and whether a court can justify a sentence outside the guideline range based upon a disagreement with the severity of crack sentences. If these decisions were applicable at retroactive reconsiderations of sentences, then courts would have authority to shorten sentences even more than that recommended by the amended guideline.

However, while the Ninth Circuit held in U.S. v Hicks that Booker is applicable to reductions of sentences under the applicable federal statute, some witnesses and Commissioners disagreed with that analysis. It may be possible for the Commission to issue policy statements to narrow the issues courts can consider at sentence reduction hearings. In any event, the question appears headed for further litigation.

The Commission's Remedy is Still Only a Partial One, and Congress Must Act

The hearing demonstrated the willingness of the Commission, the federal judiciary, the defense bar, and many others to work together to correct a longstanding injustice in federal sentencing. Despite these efforts, however, the Commission made clear when it promulgated the crack amendment that it represents "only a partial 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 would require appropriate legislative action by Congress." In particular, the mandatory minimum penalty statutes need to be repealed or amended to reflect the actual seriousness of crack offenses.

The behavior of offenders who benefit from the Commission's actions through early release will also affect future efforts to reform our nation's harsh drug laws. All eyes will be on them to see how responsibly they handle the earlier freedom the Commission might make possible. A return to addiction or crime will make future reform more difficult, and will disappoint the many supporters who worked to make crack penalties more just.

Near the end of the hearing, Julie Stewart, testifying for Families Against Mandatory Minimums, asked persons in the audience with family members in prison to stand and make their presence known. The room fell silent as mothers, fathers, siblings, and children who had traveled to Washington from around the country rose and held aloft pictures of their loved ones who are still behind bars.


Mark H. Allenbaugh is a partner with the law firm of Allenbaugh Samini LLP, with offices in Newport Beach, California, and Guangzhou, China. He heads the firm's White Collar Crime Practice Group, and is a former Staff Attorney for the U.S. Sentencing Commission.

Paul J. Hofer, J.D., Ph.D. is a former Special Projects Director and Senior Research Associate with the U. S. Sentencing Commission. He currently lectures on law and psychology at Johns Hopkins University in Baltimore, MD, and is also an Appellate and Research Consultant to the firm of Allenbaugh Samini LLP. The views expressed herein are their own and do not necessarily reflect the views of any of the named organizations.

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