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January 5, 2006

First Circuit rejects reduced crack/powder ratio

In an important ruling in the on-going post-Booker debate over the federal sentencing disparity between crack and powder cocaine (basics here and here and here), the First Circuit today in US v. Pho, No. 05-2455 (1st Cir. Jan. 5, 2005) (available here), rejected a district court's decision to apply a 20:1 crack/powder ratio rather than the 100:1 ratio that is specified in the sentencing guidelines.  Here is the opening paragraph of the opinion authored by Judge Selya:

We are called upon to answer a vexing question of first impression at the appellate level: May a federal district court, consistent with the teachings of United States v. Booker, 125 S. Ct. 738 (2005), impose a sentence outside the advisory guideline sentencing range based solely on its categorical rejection of the guidelines' disparate treatment of offenses involving crack cocaine, on the one hand, and powdered cocaine, on the other hand?  The court below believed that it could and sentenced the defendants in accordance with that belief.  After careful consideration, we conclude that the district court's approach was incorrect as a matter of law. Consequently, we vacate the defendants' sentences and remand for resentencing.

In part because I believe this opinion is wrong, and in part because I have to look up some of the words Judge Selya uses in the opinion, lots and lots commentary will follow soon.

UPDATE: Here are some of the key passages of Pho, which will surely warm the heart of fans of the sentencing guidelines and dishearten those eager to see a more nuanced understanding of guideline application after Booker:

The clear import of [the SRA's] statutory framework is to preserve Congress's authority over sentencing policy and to guarantee that the exercise of judicial discretion over sentencing decisions be based on case-specific circumstances, not on general, across-the-board policy considerations.

Nothing in Booker altered this distribution of authority over sentencing policy.  Booker established that a district court may exercise discretion in fashioning sentences — but that discretion was meant to operate only within the ambit of the individualized factors spelled out in section 3553(a). 

The decision to employ a 100:1 crack-to-powder ratio rather than a 20:1 ratio, a 5:1 ratio, or a 1:1 ratio is a policy judgment, pure and simple. After all, Congress incorporated the 100:1 ratio in the statutory scheme, rejected the Sentencing Commission's 1995 proposal to rid the guidelines of it, and failed to adopt any of the Commission's subsequent recommendations for easing the differential between crack and powdered cocaine. It follows inexorably that the district court's categorical rejection of the 100:1 ratio impermissibly usurps Congress's judgment about the proper sentencing policy for cocaine offenses.

January 5, 2006 at 01:36 PM | Permalink

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JUST WAS WONDERING WILL THERE BE ANY NEW LAWS TO REDUCE SENTENCES OF CURRENT INMATES INCARSATED. I'VE HEARD ALOT OF TALK OF 65% OF TIME INSTEAD OF 85%. ARE THERE ANY OTHER WEBSITES I CAN VISIT TO KEEP ME UPDATED WITH IN SUCH LAWS.

Posted by: MARVINA PIGFORD | Mar 7, 2006 9:46:23 PM

i read all this stuff on here about the sentencing on crack and how they all say its not a racial thing on blacks and whits but if you look at the guidlines it tells you that whits are the ones who sell and do cocan and blacks and so on are the ones to do crack now putting the crack guidlines to where they are and keeping cocan low it looks to me to be the same you are giving whites less time and blacks more i think it is very racial if you ask me and looking at all the % in the prisons its mostly blacks and whoever not whites i really think cocan and crack should be the same sentencing and not favor the whites/and the law just is not right anyhow people can go kill someone and be out in a year or to but you sell drugs and you are put away for 10 years and the opnes to go out and rap or malest kids how much time they they get?? not much at all then when they get out we are giving houses and stuff like that finding them places to live for what? i think the law needs alot of changes

Posted by: Tracy | Sep 12, 2006 6:13:34 PM

Are there any other web sites relating to sentencing from 85% to 65%, I have a son in a federal prision
to be relaesed mid 09

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Posted by: richard | Jun 26, 2007 1:55:39 PM

would like to know if there are any new laws being passed in november of 2007? and what are they and were could i get info on them.

Posted by: tabbatha | Aug 25, 2007 3:28:51 PM

Can you give me some info on the new laws being passed in Connecticut in November of 2007 for drug offenses? If so can you give me the resources to the or what to look for.

Posted by: tabbatha | Aug 25, 2007 3:34:56 PM

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