Eastern District of California Blog

Bills To Eliminate Crack-Powder Sentencing Disparity Stalled In Congress

According to this 3/2/10 NYT Editorial,

The federal law that mandates harsher prison terms for people arrested with crack cocaine than for those caught with cocaine powder is scientifically and morally indefensible. Bills to end the disparity are pending in both the House and Senate. Democrats who worry about being pegged as “soft on crime” will have to find their backbones and push the legislation through.

In the House, a bill that ends the disparity has been voted out of committee but has yet to go to the floor. The Senate bill is having trouble attracting support, including from Democrats. It is time to finally put aside crack myths and hysteria. This isn’t a question of being soft on crime. It is an issue of fairness and sound public policy.

N.H. District Judge's Unusual Response To Overly-Severe Crack Cocaine Plea Agreement

Courtesy of Prof. Berman's Sentencing Law And Policy Blog, you can download New Hampshire Chief U.S. District Judge Steven J. McAuliffe's highly-unusual order to the U.S. Attorney's Office in response to a conditional Rule 11(c)(1)(C) plea agreement that called for a sentence the judge felt was greater than necessary to comply with the §3553 purposes of sentencing.  Download N.H. Dist. Judge Order.

The circumstances are straight forward.  A defendant is facing a 10-year mandatory minimum in a crack cocaine case, which will increase to a 20-year minimum if the prosecution files a §851 notice of a qualifying prior drug conviction, i.e., essentially any felony drug conviction, even one for simple possession.  The defendant takes a conditional 15-year deal to avoid an even harsher 20-year sentence.  The plea agreement is conditional in that, if the judge rejects the 15-year sentence called for in the agreement, the parties could withdraw from the agreement.

The judge feels the defendant's offense requires a tough sentence but also that 15 years would be overly harsh under all the circumstances of the case.  Without the plea agreement, he believes a sentence of 8-10 years (and no more than 12) is warranted under the facts of the case.  But if he rejects the plea agreement he forces the defendant to end up with an even more unjust sentence.  Faced with this scenario, Judge McAuliffe's order asks the district's new U.S. Attorney to personally review the case and announce the government's position if he rejects the plea agreement.  The judge notes that there is now a new Attorney General who has announced an intent to take a new look at crack/powder cocaine disparities and mandatory minimums.  If the government would not withdraw from the plea agreement and accept the lower sentence the judge believes is appropriate, he will reject the plea agreement and sentence accordingly.  However, if the government would exercise its right to withdraw from the agreeement, the judge would reluctantly sentence the defendant to 15 years, though he believes it is higher than is justified under the circumstances.

Most experienced federal defense attorneys have faced this situation.  Your client is stuck between a rock and hard place.  In federal drug cases, that often means taking a bad deal to avoid a worse result.  This case is a good example of how mandatory minimums gives federal prosecutors the power to determine sentences rather than judges.  Judge McAuliffe's order is an innovative way to attempt to nudge the U.S. Attorney's Office to give it back to permit him to impose the sentence he deems the most just. 

Another District Judge Adopts 1:1 Crack/Powder Cocaine Ratio For All His Cases

In light of Kimbrough and the Attorney General's recent pronouncements against enhanced penalties for "crack" cocaine, U.S. District Judge Maurice B. Cohill of the W.D. Pennsylvania has become the latest district judge to adopt a 1:1 crack-to-powder cocaine ratio for all of his cases.   Download District Judge Maurice B. Cohill 1-1 Crack Opinion

Step 2: House Committe Passes Bill To Eliminate Crack-Powder Cocaine Sentencing Disparity

The U.S. House Judiciary Committee passed a bill today, by a 16-9 vote, that will eliminate the sentencing disparity between crack and powder cocaine sentences in federal cases.  Next, up is a vote in the full house, which is not expected until after the summer recess.  Jurst Blog Update on Bill to Eliminate Cocaine Disparity, 7/30/09

Since 1980, the number of offenders in federal prisons for drug offenses has skyrocketed from less than 5,000 to almost 100,000 in 2009. Currently, drug offenders represent 52% of all federal prison inmates.

House Subcommittee Unanimously Votes In Support Of Bill To Equalize Crack And Powder Cocaine Penalties

A huge first step today as FAMM reports that a House Subcommittee voted unanimously in favor of a bill equalizing the penalties between crack and powder cocaine.  The Fairness in Cocaine Sentencing Act of 2009 was "marked up" today, meaning it is sent to the full House Judiciary Committee for consideration and a vote.  This is by far the best of the crack cocaine bills circulating around as it eliminates, not just reduces, the crack-powder disparity.

Buoyed by Department of Justice support for eliminating the 100:1 sentencing disparity between crack and powder cocaine, and outraged by the high cost of incarcerating low-level drug offenders for excessively long prison terms, the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security unanimously passed H.R. 3245, the Fairness in Cocaine Sentencing Act of 2009, on July 22.

The bill would remove references to “cocaine base” from the U.S. Code, effectively treating all cocaine, including crack, the same for sentencing purposes.  Original cosponsors of the bill include all Democratic members of the subcommittee and the sponsors of all other Democratic bills that address the cocaine sentencing disparity.

Families Against Mandatory Minimums President Julie Stewart hailed today’s vote.  “Congress has finally launched a bill that addresses this decades old injustice.  While the vote may be one small step for this bill, it is one giant step for sentencing sanity.”

“If Congress eliminates the sentencing disparity between crack and powder cocaine, it would not only restore some faith in the justice system among the communities most affected by the law, it would reduce prison overcrowding and free up funding for more effective rehabilitation efforts.  A minimum of $26 million would be saved in the first year of the reforms and nearly $530 million over the next 15 years,” says Stewart. “FAMM strongly urges Congress to make the changes retroactive so that people currently serving unjust sentences for crack cocaine can benefit and taxpayers will see even greater savings.”

House movement to address the cocaine sentencing disparity is supported by long-term opposition to mandatory minimums and the current crack sentencing structure by the federal judiciary, criminal justice practitioners, experts, and the public.

Currently, five grams of crack cocaine triggers the same five-year sentence that it takes 500 grams of powder cocaine, and 50 grams of crack cocaine triggers the same 10-year sentence that it takes 5000 grams of powder cocaine to trigger.  If this bill succeeds, crack and powder cocaine mandatory minimum triggers will be equal:  50 grams will require five years and 500 grams will require 10 years, no matter what form of cocaine is involved.

U.S. Attorney Follows Attorney General In Announcing Cocaine Sentencing Policy For EDCA

Though it doesn't break any new ground, here's the Acting U.S. Attorney's 7/14/09 Cocaine Sentencing Policy Letter to the judges in our district. 

AG Holder's Strongest Criticism Yet of 100-1 Crack/Powder Disparity

Talk Left has these encouraging tidbits from Attorney General Eric Holder's talk at the D.C. Circuit's Judicial Conference on Friday:

It is the view of this Administration that the 100-to-1 crack-powder sentencing ratio is simply wrong. It is plainly unjust to hand down wildly disparate prison sentences for materially similar crimes. It is unjust to have a sentencing disparity that disproportionately and illogically affects some racial groups. I know the American people can see this. And that perception of unfairness undermines governmental authority in the criminal justice process and breeds disrespect for the system. It leads victims and witnesses of crime to think twice before cooperating with law enforcement, tempts jurors to ignore the law and facts when judging a criminal case, and draws the public into questioning the motives of its officials.

Although we defense attorneys have been saying this for years, it's refreshing coming from the Department of Justice itself.  With more federal judges adopting a 1:1 ratio under section 3553(a), see, e.g., N.D. Iowa opinion highlighted here, there's more and more ammunition for using a 1:1 ratio as a starting point for plea negotiations and sentencings.  The DOJ crack memo available here gives line AUSAs authority to agree to variances in individual cases and suggests the 1:1 ratio as an appropriate starting point.  

Finally, Prof. Berman's Sentencing Blog includes these insights from Michael Nachmanoff, a federal public defender in Alexandria, Va., who testified before Congress last year, about the inconsistent nature of federal crack cocaine sentencings across the country:

"Lanny Breuer said point blank that the ratio should be 1-to-1," Nachmanoff says. "Prosecutors around the country today could start charging on a 1-1 ratio and avoid the mandatory minimums."

Cases in the pipeline would be more difficult, but when it comes time to sentence those offenders, prosecutors could seek to vacate the conviction with the idea of following with an information charging possession of lesser amount that don't trigger the mandatory sentences, he says. "Unfortunately, there is a gap between the expression of a changed policy on the part of the assistant attorney general and what is happening in the field," he says.

He says that in talking to defense lawyers around the country, "what we see is there is a huge amount of variation in the way prosecutors are handling these cases, even within a district to district." "In some parts of the country, prosecutors are telling a judge the 1-1 ratio is the way to go, but it sounds like prosecutors in New Jersey or other states maybe aren't saying that clearly or acting that way," Nachmanoff says.

In the meantime, defense lawyers are attaching copies of Breuer's testimony to their sentencing pleadings "and telling judges, 'this is the position of the Justice Department, whatever the people in the field are saying,' " Nachmanoff says.

Fourth-Hand Report On DOJ Position In Pending Crack Cocaine Prosecutions

I found this third-hand report on what position the DOJ is taking in pending crack cocaine prosecutions in Prof. Berman's Sentencing Blog today from what is believed to be a letter from a federal prosecutor to defense counsel:

United States Attorney’s Offices were provided with new guidance concerning sentencing for crack cocaine offenses.  This guidance provides that United States Attorney’s Offices should inform courts that the Department of Justice believes Congress and the United States Sentencing Commission should eliminate the crack/powder cocaine disparity.  Congress has not yet determined whether or how to achieve a more appropriate sentencing scheme for crack and powder offenses.  Until Congress acts, the Department of Justice recognizes courts must exercise their discretion under existing case law to fashion a sentence that is consistent with the objectives of 18 U.S.C. § 3553(a).

The Department of Justice’s position with respect to variance motions in crack cocaine cases is to be determined on a case-by-case basis.  The Department of Justice will continue to charge provable threshold quantities of crack cocaine triggering mandatory minimums.

The part I emphasized might be helpful to stress to prosecutors and courts in our district.  --John

US DOJ Interim Policy in Crack Cocaine Prosecutions

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?

Can Obama End The Crack-Powder Cocaine Disparity?

A well-researched story by federal court reporter Claire Cooper in today's San Francisco Chronicle reports on the political and legislative momentum towards ending the crack-powder cocaine disparity and the prosecutions of crack offenses involving small quantities of crack:

the Obama administration wants the crack/powder disparity eliminated. In the last session of Congress, then-Sen. Barack Obama co-sponsored a bill introduced by then-Sen. Joe Biden to do just that.

The same bill is on the table again. HR 265, introduced in the House by Texas Democrat Sheila Jackson Lee, would increase federal penalties for big-time trafficking while reducing them for possession or dealing in trivial quantities of crack - offenses that should be left to state prosecutors or public health officials.

Here's hoping the end is near!

Table of fed crack cocaine cases below, which lists the median weight of a crack cocaine case in Sacramento in 2006 as 86.5 grams and notes that there were more federal crack cases in Sacramento than in Los Angeles:

Busts by the numbers

Median drug weights for federal crack cocaine cases

Nationwide	51 grams (1.8 oz.)	4,262 cases
Los Angeles	120 grams	27 cases
Sacramento	86.5 grams	35 cases
Chicago	76.3 grams	79 cases
New York	56.3 grams	78 cases
Seattle	45.7 grams	30 cases
San Francisco	30.2 grams	18 cases
Miami	30.2 grams	104 cases

Note: San Diego was not included because there was only one case (33 grams)

Source: U.S. Sentencing Commission, based on 2006 data