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Two Judges Target Penalty Disparity for Crack and Powder Cocaine Offenses

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By Del Quentin Wilber
Washington Post Staff Writer
Monday, June 29, 2009

Federal judges are beginning to equalize punishment for crack and powder cocaine crimes, resulting in shorter prison terms for crack dealers and putting pressure on Congress to address a wide disparity in how the legal system handles cocaine-related offenses.

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In two recent rulings and interviews, a federal judge in the District and one in Iowa said they had policy differences with Congress and a judicial commission that they said did not go far enough to change the guidelines for crack sentences in 2007.

From now on, the judges wrote, they will calculate sentences for crack offenders by using the more-lenient sentencing guidelines for powder cocaine crimes.

Recent Supreme Court rulings and supportive statements from top Justice Department officials paved the way for the judges' decisions. Nonetheless, such unilateral action from the bench is unusual. Legal scholars said the decisions highlight the judiciary's irritation at the slow pace of sentencing reform as Congress considers the first major revision of crack statutes in decades.

"The decisions are a very big deal, especially if they start a trend," said Douglas Berman, an Ohio State University law professor. "The fact that judges are doing this, and doing it vocally, shows they are frustrated. And it's garnering attention and could be the catalyst for Congress to act."

In recent years, a general consensus has emerged that crack sentences and guidelines are too stiff and unfairly affect African Americans. Attorney General Eric H. Holder Jr. and other Justice Department officials have said they believe that crack cocaine sentences are unfair. "It is time to do away with the disparity," Holder told Congress this month.

Rep. Robert C. Scott (D-Va.), chairman of the Judiciary subcommittee that handles such matters, said he expects legislation on crack sentences by year's end. The House is considering several proposals to change sentencing laws. "We need to fix this problem," he said.

Stiffer penalties for crack offenders were instituted in the 1980s, when many cities, including Washington, were plagued by violent crime blamed on the drug trade. But over the years, as sentences were imposed, many criticized the punitive disparity.

The law, passed without much research, dictated a 100-to-1 disparity in punishments for crack and powder cocaine crimes. So a person convicted of selling five grams of crack generally draws the same five-year mandatory minimum sentence as someone convicted of distributing 500 grams of powder cocaine.

When the U.S. Sentencing Commission, an independent agency in the judicial branch, eased the guidelines for crack offenders in 2007, it allowed imprisoned crack offenders to seek leniency. Adjustments have reduced prison terms by an average of two years for more than 12,000 crack offenders.

But the two federal judges say that tweak does not go far enough.

"The unwarranted sentencing disparity between crack and powder cocaine sentences is one that has been written into the law and the guidelines, and there is no good reason for that," U.S. District Judge Paul L. Friedman of the District's federal court said.


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