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May 16, 2007

An initial reaction to the USSC crack report

Fellow sentencing guru Mark Osler sent via e-mail this first-cut reaction to the Sentencing Commission new cocaine report (basics here):

A federal defender, one of the smartest people I know in sentencing, called me this afternoon to talk about the proposed crack guideline amendments.  He got my voice mail, and left this provocative message: "What's going on?! These things are all over the place!"

He's right, and the Sentencing Commission's report on "Cocaine and Federal Sentencing Policy" (released about the same time as that call) does not do much to clear things up.  The USSC's report is chock-full of great data and analysis.  However, when the rubber hits the road, the Commission makes just three recommendations to Congress, on page 8: First, increase the amount needed to trigger mandatory minimums for crack; second, repeal the mandatory minimum for simple possession; and third, don't solve the problem by lowering the thresholds for powder cocaine which trigger mandatory minimums.

I'm all for these recommendations.  However, they leave open a key question: If we leave behind the 100-to-1 ratio, what will take its place?  This crucial question is more complex than it may at first appear — what is at issue is not just what other ratio we should employ, but whether we should tie crack sentencing to powder cocaine at all. 

Which brings us back to the call I received from my friend the public defender.  He was very happy that the proposed guidelines lowered the crack ranges, but noticed that they were no longer tied to any ratio at all relative to powder cocaine.  For example, at level 28 of those proposed guidelines, the ratio is 17.5-to-1, at level 26 it is 25-to-1, and at level 24 it shoots up to 80-to-1.  Obviously, the sentencing commission is comfortable not just with adjusting the ratio, but with throwing out the idea of a ratio altogether.  In keeping with this new outlook, the key recommendations of the new report to Congress do not suggest 20-to-1 or any other ratio to direct Congressional reforms, unlike the 2002 report.

It is a brave new world, if we might be free not only from the 100-to-1 ratio, but the idea of ratios controlling the way we think about crack sentencing.

May 16, 2007 at 01:52 AM | Permalink

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Comments

Kudos to Mark Osler for highlighting that under the new (proposed) guidelines there is currently no ratio for crack. For longtime sentencing-guideline computers (meaning, people who compute them, not a machine-computer!) -- this is earth shattering. Crack is now the only drug on the planet that doesn't have a straight equivalency. (For the gory details, see pp 74-75 of the USSC amendment package (at http://www.ussc.gov/2007guid/may2007rf.pdf)).

In any event, it is the height of weirdness that crack now has different equivalency rates depending on the amount under consideration.

Trying to understand this, I looked at the ratios under the proposal, and what I've come up with, briefly, is this:

In order for the commission to give a two-level base-offense-level reduction, across the board, for all crack offenders, then, by dint of mathematical necessity, a straight "power-crack" ratio had to be eliminated.

The "problem" (speaking purely from mathematics) is that the current table doesn't follow a linear (or exponential) function. For example, under the old rules, 1 gram of crack gets you a level 18, 2 gets you 20, 3 gets you 22. So to get from level 18 to 20, it's twice the amount. To get from level 20 to 22 it's 50% more (2 grams to 3 grams).

Continuing this just a bit more: 5 grams gets you level 26, but then you have to quadruple the amount (to 20 grams) to get you to level 28.

The above is all pre-amendment.

So, mathematically speaking, you can't just "lower by 2 levels" and keep a constant ratio.

The bottom line (imho) is this: the USSC was not really expressing any philospohy regarding ideal ratios here -- they were simply doing what they could (fairly maximally) by lowering everything two levels, and the ratios remaining is merely a mathematical artifact, a by-product, of a previous structure.

(BTW, Osler made a small error here. He writes (or, you quoted him) as saying: "For example, at level 28 of those proposed guidelines, the ratio is 17.5-to-1, at level 26 it is 25-to-1, and at level 24 it shoots up to 80-to-1."

That 17.5-to-1 is, I think, incorrect. It's 57.1-to-1. (2000 grams powder/35 grams crack, for level 28).

And so, the ratios range from a low of 25:1 to a high of 80:1 -- but again, the focus should not be on the ratios at this point.)

Posted by: Sholom Simon | May 16, 2007 6:45:30 PM

The math error is mine, not Doug's... not my strong suit.

Posted by: Mark Osler | May 17, 2007 5:48:41 PM

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