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January 29, 2006

What is the Sentencing Commission fiddling while the crack guidelines burn?

Over the summer, the US Sentencing Commission indicated in this statement of priorities that it was working on cocaine sentencing policy.  But, as detailed here, in its 88-page discussion of new proposed amendments, the USSC does not address the crack guidelines (and also, stunningly, fails to even mention the Booker ruling).   Especially given that some (many? most?) federal judges, as detailed in the recent Sentencing Project report, are using their post-Booker discretion to deviate from the crack guidelines (which the USSC's own 2002 report concludes are too severe and create unwarranted disparities), I am troubled by the USSC's decision not to speak at all on crack sentencing in its new set of amendments.

Additional evidence something needs to be done about crack sentencing comes from a decision last week by District Judge John Bates in US v. Doe, No. 02-0406 (D.D.C. Jan. 26, 2006) (available here), in which the court decides it should not deviate from the crack guidelines despite recognizing that judges in the DC District and elsewhere have done so.  In my view, Doe ultimately falls prey, like the First Circuit's recent Pho decision (basics here, commentary here and here and here), to what Marc Miller has fittingly described as "Sentencing Equality Pathology".  In Doe, Judge Bates thoughtfully explains his views, but like the First Circuit in Pho, Judge Bates fails to mention Congress's clear command in 3553(a) that a court "impose a sentence sufficient, but not greater than necessary, to comply with the purposes" of punishment.  Like the Pho court, Judge Bates in Doe seems to the elevates his perceived intent of Congress over the plain textual commands of 18 U.S.C. § 3553(a).

Whatever one thinks of the merits of the Doe decision, it provides further evidence of the deepening post-Booker disparity in the application of the crack guidelines.  Of course, because the USSC is still yet to promulgate any statistics about sentencing in crack cases, we do not know how deep this disparity may run.  Ironically, if statistics showed that judges were deviating from the crack guidelines in most cases (which certainly seems plausible), the Doe decision to follow the guidelines would actually exacerbate disparity rather than minimize it.

Unless the USSC no longer stands by its "unanimous" and "firm" conclusions in its 2002 report that "various congressional objectives can be achieved more effectively by decreasing substantially the 100-to-1 drug quantity ratio," I have a hard time understanding why the latest set of guideline amendments do not seek to implement the USSC's proposed 20-to-1 ratio.  Some (many? most?) federal judges are already applying that ratio.  The USSC's failure to seek to codify this improved ratio in the guidelines serves only to ensure additional post-Booker disparities in drug sentencing.  At the very least, the USSC ought to explain why it is not acting on the crack guidelines.  Silence simply breeds distrust and disrespect for the Commission's (non)efforts (and also leads to obnoxiously critical blog posts like this one).

January 29, 2006 at 08:22 PM | Permalink

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Comments

For obvious reasons this comment is anon - there is a clear split inside the commission on this - Judge Hinojosa, while a good guy, is very very reluctant to have the USSC stick its neck out on anything - thus the perplexing silence on the huge, but controversial, topic of what to do about booker and the foot dragging on crack

Posted by: anon | Jan 30, 2006 12:44:38 AM

I would not be surprised to hear that there is a riff in the Commission, just as there is a riff in the courts over crack. But I do not see a failure to achieve consensus as providing an excuse for failing to take action on this "huge, but controversial, topic."

Either a majority of the Commissioners still believe in the conclusions of the USSC's 2002 report, or they don't. Either way, the Commission should try to move forward and provide leadership on these issues and not be content with silence in the face of sentencing realities that the USSC has itself called unjust and unjustified.

Put more simply: of course these issues are tough, but that's why a commission created to handle these issues ought to be taking the lead and not sitting on the sidelines.

Posted by: Doug B. | Jan 30, 2006 1:57:12 AM

sounds like a speech i heard at a meeting ;)

Posted by: anon | Jan 30, 2006 6:07:26 AM

unfortunately, any indication that most judges are deviating from the crack guidelines is more hopeful than "plausible." it seems more likely that most judges, like Judge Hinojosa, are very, very reluctant to stick their neck out. or perhaps even more likely, they just don't care.

Posted by: anonymous | Jan 30, 2006 9:17:58 AM

One of the biggest problems with drug sentencing is the very idea that the weight of the drugs involved is the key component. It leads inevitably to apples and oranges comparisons of every new variant of a drug and provides little basis for understanding what they have in common. If the amount of drugs is important, why not have a uniform schedule (similar to those for theft offenses) of sentences based on the market value of the drugs involved and have expert testimony in each case that goes to trial as to their value (which changes from time to time). Thus a sentence for $500 of crack = $500 of powder cocaine = $500 of meth = $500 of heroin = $500 of pot = $500 of ecstacy = $500 of LSD.

Even more importantly, the amount of drugs shouldn't be the most important factor. Listen to the rhetoric of drug sentencing. People care about an individual's place in the hierarchy. Is someone a mule, a dealer, someone who supervises a dealer, or a true kingpin, who supervises people who supervise dealers. The amount of drugs (ideally measured in dollars, not weight) would be a secondary consideration.

Also, a dollar orientation would eliminate some of the drama that makes drug enforcement dangerous. There is a huge rush to flush drugs down toilets which can cause an underestimate of the weight of drugs involved even if not completely successful which creates an incentive to conduct dangerous no knock warrants, while a focus on dollars earned would allow prosectors to focus instead on unexplained income (and people rarely flush cash down toilets -- unless its counterfeit, which can get them caught).

The folks who prosecuted Al Capone weren't all wrong. Drug dealing (and before that moonshining) is primarily an economic crime from the point of view of someone in the drug distribution system. The more someone is making a living from the drug economy, the more likely they are to reoffend, simply because they know no other way of life. Indeed, one can even imagine a common sentencing schedule for bother drug dealing and other economic crimes based on the dollar values involved.

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Posted by: Avita Roach | Apr 12, 2006 11:40:29 AM

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Posted by: Avita Roach | Apr 12, 2006 11:40:33 AM

Hello my name is ronda. And I am some who awaits a sentencing though the federal courts. I was charge with conspircy to sell 50 grams of crack. I sign a plea greement for 10 years to life. I Was just brosweing the internet for diffrent things. To get info. Well thanks

Posted by: Ronda Baker | Apr 26, 2006 3:14:00 PM

I am the mother of a now grown son who has been dealing with my son's drug addiction since it began in his teen years. At present he is incarcerated and awaiting trial for possession of a small amount of crack cocaine in Arizona, where he has two prior drug convictions. However, as I was unable to get him into drug treatment when he was in my custody, he has never been through drug rehab. My son was also diagnosed as suffering from depression which he has now been placed on medication for. I do not have the resources to hire a defense lawyer so I am trying to find any information I can to help get him into treatment. From what I have been told, the prosecutor wants him sentenced to 10-15 years. It is my understanding that recent changes in the law allow for drug addicts to be sentenced to a drug rehabilitation center instead of prison. I would greatly appreciate any assistance you can provide to help me in this.

Posted by: Desperate mother | Mar 29, 2007 8:29:41 PM

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