Shifting Public View on Mandatory Sentences: Cocaine versus Crack Debate
By Vicky Bufano, faculty member, Legal Studies at American Public University
The Federal Sentencing Guidelines were established by the U.S. Sentencing Commission (USSC) to create structure in sentencing and ensure punishments were more equally applied. These guidelines also included more severe penalties for white-collar crimes and repeat violent offenders. However, before the Federal Sentencing Guidelines were implemented, Congress found there was a wide disparity between sentences for defendants charged with the same crime. In addition, Congress saw a need to reform the federal sentencing practices and realized the need to expand and increase the due process rights of offenders who were sentenced under the federal laws.
In 1984, the Sentencing Reform Act (SRA) was enacted to determine proper sentencing imposition, supervise offenders convicted of federal crimes, reduce the amount of good time earned, and increase the protections of due process. It also created the USSC, or “Commission.” 28 U.S.C. §991-998. The USSC enacted guidelines that federal judges must follow when sentencing individuals found guilty of committing federal crimes.
Sentencing Disparity for Drug Offenses
The sentencing guidelines classify controlled substances and illegal drugs into different schedules, also known as categories, of controlled substances. 21 U.S.C.A. § 802(6). Cocaine and its base form, referred to as “crack” or “freebase,” are classified as schedule II controlled substances. 21 U.S.C.A. § 812(c).
On Aug. 3, 2010, President Obama signed into law the Fair Sentencing Act, which was passed by both the Senate and the House. Before the Fair Sentencing Act was in place, minimum mandatory sentences for powder cocaine were disproportionate to the minimum mandatory sentences for crack cocaine. Essentially, one could possess 100 grams of powder cocaine and receive the same sentence as someone who possessed 1 gram of crack cocaine. Under the new law, the ratio was brought down to 18:1.
Concern has arisen over the years that the effect of the sentencing guidelines regarding cocaine and crack had a discriminatory effect on minority racial groups, specifically African-Americans. In 2009, Dick Durbin, a United States Democrat Senator from Illinois, stated:
“The sentencing disparity between crack and powder cocaine has contributed to the imprisonment of African-Americans at six times the rate of whites and to the United States’ position as the world’s leader in incarcerations.”
Critics of mandatory minimum guidelines include the American Civil Liberties Union (ACLU), the American Bar Association, the Sentencing Project and Families Against Mandatory Minimums, to name a few. The ACLU has cited the fact that “mandatory minimum sentences have taken away the discretion of judges to tailor sentences to fit the individual circumstances of particular crimes and offenders.” Further, the ACLU has stated the discretion of judges leads to disparity based on race and quality of defense attorneys representing the accused. Id. However, this position is exactly why mandatory minimum were created. Due to the enormous discretion and disparity given to judges, sentences were often not fair or equal. The ACLU’s stance also failed to address the specific issue of crack cocaine versus powder cocaine and the impact on racial minorities, which was cited as a concern to many people.
Supporters of sentencing guidelines and mandatory minimums include the Bureau of Alcohol, Tobacco and Firearms, some U.S. Attorneys for particular states, the Drug Enforcement Agency, and Assistant U.S. Attorneys General. These proponents cite uniformity in sentencing and ensuring that repeat offenders receive enhanced penalties. Id. In addition, the mandatory minimums serve as a deterrent to future crime and guarantee that judicial sentencing is not given wide unbridled discretion.
Supporters of mandatory minimum guidelines cite problems with violence and the epidemic of crack cocaine usage in the United States. In a 2010 UK study, 20 drugs ranging from alcohol to mushrooms were analyzed on the overall negative effect on the user and others. David Nut, et al., Drug Harms in the UK: A Multicriteria Decision Analysis, 376 The Lancet 1558 (2010); See also Ranking 20 Drugs and Alcohol by Overall Harm. The drugs were placed on a chart, where 100 points reflected the most harm and zero reflected no harm at all. Id.
According to the study, as cited on ProCon.org, “alcohol was the most harmful drug overall (72 out of 100), followed by heroin (55 out of 100), and crack cocaine (54 out of 100)” and the “most harmful drugs to users were crack cocaine, heroin and methamphetamine, whereas alcohol, heroin, and crack cocaine were the most harmful to others.” Id. In all three instances of harm, crack cocaine made the top three of the most harmful drugs. Given these statistics, it is clear why there are differing guidelines for sentencing as it relates to crack cocaine versus powder cocaine.
Why the Federal Sentencing Guidelines Remain Important
The original purpose for the Federal Sentencing Guidelines was to create uniformity in the sentencing structure for offenders and to treat offenders charged with the same crime equally. In dealing with a first-time offender, the guidelines create uniformity, consistency, equality and fairness. However, a first time offender with the same amount of crack cocaine could receive a harsher sentence before Judge A than the same offender who stood before Judge B. This is not how the justice system, the court system, or our Constitution envisioned criminal punishment.
In addition to a judge, a defense attorney for an offender retains great influence on the length of sentence. An offender who cannot afford to hire a high-priced lawyer is assigned a public defender who may not have the time to devote to a lengthy trial, making it harder to plead for a more lenient sentence. Therefore, sentencing guidelines help keep all judges fair and accountable and do not favor offenders who can afford a better or more experienced attorney.
About the Author: Vicky Bufano, Esq. is a licensed attorney and admitted to practice law in Washington and Florida. Over the course of the past nine years as a lawyer, Mrs. Bufano has practiced in various areas of law including family, contracts, employment, estate planning and landlord/tenant. However, her passion lies in her current profession as a criminal prosecutor, which she has been practicing for almost four years. Mrs. Bufano’s firsthand experience with prosecuting drug offenders led her to write this blog.