Prof. Berman's Sentencing Blog has this post on what the DOJ is doing in the meantime with respect to crack cocaine prosecutions until Congress and/or the U.S. Sentencing Commission acts to amend the insane 100-1 crack-powder cocaine ratio.
Until a comprehensive solution – one that embodies new quantity thresholds and perhaps new sentencing enhancements – can be developed and enacted as legislation by Congress and as amended guidelines by the Sentencing Commission, federal prosecutors will adhere to existing law. We are gratified that the Sentencing Commission has already taken a small step to ameliorate the 100:1 ratio contained in existing statutes by amending the guidelines for crack cocaine offenses. We will continue to ask federal courts to calculate the guidelines in crack cocaine cases, as required by Supreme Court decisions. However, we recognize that federal courts have the authority to sentence outside the guidelines in crack cases or even to create their own quantity ratio. Our prosecutors will inform courts that they should act within their discretion to fashion a sentence that is consistent with the objectives of 18 U.S.C. § 3553(a) and our prosecutors will bring the relevant case-specific facts to the courts’ attention.
That's it? As Prof. Berman puts it,
Given that DOJ recognizes that federal sentencing judges have authority to "create their own quantity ratio," and given that DOJ now seeks to "completely eliminate the sentencing disparity between crack and powder cocaine, why shouldn't prosecutors simply recommend in each on-going crack case that sentencing judges should not embrace (or should I say "create") a 1:1 ratio going forward? Or, perhaps the better question is, shouldn't prosecutors now just express agreement with defense counsel in on-going crack case when they suggest that a 1:1 ratio be adopted by a sentencing court?