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.
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.
In his opinion, Friedman declared he would use a "1-to-1" crack-powder ratio as a starting point in resentencing a convicted crack dealer, Anthony Lewis, 37, who faced 16 to 19 years under the old guidelines. The judge, who was already applying a 20-to-1 ratio in crack cases, said he would consider mitigating and aggravating factors as he applied the 1-to-1 guideline to each case.
In Lewis's case, the 1-to-1 ratio would have reduced his prison sentence from 13 1/2 years to less than five years, but the law required at least 10 years. The judge sentenced Lewis to 10 years and 10 months in prison. The judge cited Lewis's "significant criminal history" in giving him more prison time than the mandatory minimum.
Friedman relied heavily on an opinion issued in May by U.S. District Judge Mark W. Bennett of the Northern District of Iowa, who used the guidelines for powder cocaine offenses to begin calculating the sentence of a crack dealer. The dealer eventually received a sentence within the two guideline ranges.
Both judges cited recent Supreme Court rulings giving the judiciary greater leeway in sentencing. In January, the Supreme Court said judges "are entitled to reject and vary categorically from the crack-cocaine Guidelines based on a policy difference with those Guidelines."
"I had an absolutely legitimate basis to disagree with the guidelines on a policy basis," Bennett said in a phone interview. "I have always been troubled by the disparate impact of the 100-to-1 ratio."
"I'm optimistic that some judge might agree with me," he added. "We might start a trend."
The judges also quoted congressional testimony in April by Assistant Attorney General Lanny A. Breuer, who said the Justice Department wants to "completely eliminate" the disparity.
Breuer said crack is not "inherently more addictive a substance than powder cocaine," adding that authorities could find no other narcotic "where the penalty structure differs so dramatically because of the drug's form." Cocaine powder is usually snorted; crack is created by boiling powder cocaine into a solid substance and is usually smoked.
Breuer noted that the sentencing gap has punished low-level crack dealers much more harshly than powder cocaine sellers, and statistics show that 82 percent of those sentenced in crack crimes are African Americans. (Blacks account for 27 percent of powder cocaine offenders.) Such statistics have "fueled the belief across the country that federal cocaine laws are unjust," he said, adding that most states do not treat the two forms of cocaine differently.
Justice Department officials declined to be interviewed for this article, but they are unlikely to appeal the recent rulings.
A former U.S. attorney for the District, Jeffrey A. Taylor, a Republican appointee, said prosecutors are concerned that judges will begin adopting their own sentencing standards.
He added that prosecutors also are uneasy about the possibility that Congress would reduce the sentences for crack offenses to the level of powder offenses. That would allow dealers to handle nearly 500 grams of crack before risking a mandatory minimum sentence of five years. To alleviate some of the disparity, Taylor said, prosecutors would like Congress to ease up on crack while toughening powder cocaine sentences.
"No one in this town traffics in 500-gram quantities of crack, and we wouldn't want them to start," he said. "The dealers know exactly where these levels are set, and they will adjust their behavior accordingly."