Sentencing Commission Sends Crack Cocaine Penalty Report to Congress

By Jeralyn, Section Crime Policy
Posted on Wed May 16, 2007 at 01:59:00 AM EST
Tags: crack cocaine penalties (all tags)

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I haven't been excited about the U.S. Sentencing Commission's long awaited report urging a slight reduction in crack cocaine penalties, because the reduction is just that: slight.

The report was forwarded to Congress today. You can read it here.

From a policy perspective, as the ACLU says, it's a good first step, but that's all it is.

But 2007 marks the fourth time in 20 years that the commission has issued such a report, and Congress has yet to address the problem. Years of medical and legal research have shown no appreciable difference between crack and powder cocaine, and no justification for allowing the vast sentencing gap between them to stand. We urge Congress to put aside politics and act now to fix this discriminatory federal drug sentencing policy."

From the practical standpoint of my clients and everyone else's clients doing double-digit sentences, it only takes a year or two off.

More...

The real battle is with mandatory minimums sentences. More of my criticism of the new report is here.

We don't need a first step. We need real reform. How many more years will these crack offenders do while waiting for Congress and the Commission to go the second, third and fourth steps, until the crack penalties come down to where they should be, the same as those for powder cocaine?

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Sentencing Commission Sends Crack Cocaine Penalty Report to Congress | 6 comments (6 topical)

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The report (none / 0) (#1)
by Deconstructionist on Wed May 16, 2007 at 07:42:42 AM EST

though advocates (very politely) that Congress do more than the Sentencing Commission has the power to do and presents compelling reasons for doing so. The USSC can only recommend amendments to the sentencing guidelines and the guidelines still must follow the statutes.

So, in practical and logistical terms, all the Commission can do is recommend guidelines ranges that place the STATUTORY mandatory minimums at the top of a guideline range applicable to a triggering quantity and adjust the intervening ranges accordingly. The Commission can't change the statutes.

Only Congress can amend the statutes but it is hard to read the report and not come away with the conclusion that this should be done. the commission should be applauded for presenting the report to Congress and essentially recommending as much change as is within its power.

Now, we need Congress to do things only it can do.

With all due respect... (none / 0) (#2)
by A DC Wonk on Wed May 16, 2007 at 11:02:18 AM EST

I don't think the USSC could have done more than it did right now. They couldn't really lower the guidelines more than two levels (there would be a legal question about setting a range that is completely under a statutory mandatory minimum).

I think they moved as much as they can given the statutory straightjacket that Congress has put thyem in.

At least we have folks like RW GOP Sen Sessions of Alabama (!) even saying these sentences need to be lowered.

It's Gordian Knot time (none / 0) (#3)
by SeeEmDee on Wed May 16, 2007 at 01:11:15 PM EST

Namely, what Alexander the Great supposedly did to it: sliced the damn thing to pieces rather than try to unravel it.

How much longer are we going to continue trying to tinker with what amounts to an oil-burning, squeaking, decrepit old jalopey that needs retirement to the junkyard? The drug laws of this country are beyond insane. Even with 93 years of trying, no amount of tweaking them will ever produce the result demanded by the legislation that created the mess. The more punitive the laws have become, the more lucrative the trade. The cartels laugh all the way to the bank and our treasuries are overburdened with funding the ballooning prison population. It's the political and economic equivalent of a Three Card Monte game; enough, already!

: Must Be (none / 0) (#4)
by squeaky on Wed May 16, 2007 at 05:34:52 PM EST

That the cartels are not the only ones profiting. If the legislators thought there was more in it for them to end this nonsense it would be a non issue today. Instead of bulging prisons, rehab centers and educational programs would be getting our tax dollars.
All the players are making out, hand over fist. The public is the big loser.

on the ground (none / 0) (#5)
by diogenes on Wed May 16, 2007 at 09:29:29 PM EST

Patients tell me that crack is much more addictive than powder cocaine, and Freakonomics says that the rise of crack essentially reversed the gains that African-American communities made in the civil rights era of the 1960's-1970's. Powder cocaine, which was around earlier, didn't quite do that.
What would make more sense would be to DECREASE the sentences for possession/sale of POWDER cocaine, to lower it's price and displace the use of crack further.

: first (none / 0) (#6)
by Deconstructionist on Thu May 17, 2007 at 09:12:27 AM EST

as making crack requires powder, baking soda, water and heat, I fail to see how making the main ingredient cheaper and less risky to possess would reduce the prevalence of crack.
Second, there is much anectdotal evidence with regard to the "crack is more addictive" argument, but no clinical studies have been able to substantiate this AND the anectdotal evidence has several obvious flaws. First, it comes only from that portion of the user population that has developed a serious enough problem to be in treatment or the criminal justice system. All the people who have used both powder and crack are not providing anecdotes. Additionally, the anectdotal evidence is essentially: "I used powder and had it under control but then when i tried crack, it overwhelmed me." the persuasiveness of this is limited because we are taking their word for it they had the powder use inder control AND we have to assume that the powder use would not have escalated had they not switched to crack. Even more, the users have incentive in criminal proceedings to "blame the drug" as it is often true that being viewed as drug dependent will be a mitigating factor in comparison to those viewed as mercenary offenders.
None of this is my main point, though. ALL CRACK COMES FROM POWDWER. The conversion to crack takes place at the lowest levels of drug distribution netoworks and this means that the higher level people are not subject to crack penalties because even though by definition they are providding the main constituent of it evidence is insufficient in the vast majority of cases to apply crack penalties to them. It's the street level people against whom there is sufficient evidence to apply crack penalties and they end up getting penalized more harshly than people above them who are providing more of the drug and making more money from it.
I am NOT saying crack is not a bad drug and that it doesn't ruin many lives. I'm simply saying 21 U.S.C. § 841 and the guidelines dervived from it are both unfair to defendants and counter-productive if the goal is to apply the greater punishment to the higher level offenders who cause more harm to society.