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May 19, 2009

Thoughtful new district court opinion adopting 1:1 crack/powder ratio

I am pleased to be able to post a new opinion from a district court that provides a thorough and thoughtful account of why the court has adopted a 1:1 ratio for crack sentence cases.  Here is the openning paragraph and one key passage from US v. Gully, No. CR 08-3005-MWB (N.D. Iowa May 18, 2009):

Defendant Demetrius Darnell Gully was before the court on May 14, 2009, for sentencing on his guilty plea, without a plea agreement, to four charges of distributing less than 5 grams of crack cocaine, arising from “controlled buys” in January 2008, after a prior felony drug conviction in 2004. Three of the counts charged that the distributions occurred within 1,000 feet of a public playground or school.  This “crack” case raises the following questions: (1) Whether the court has discretion to impose a 1:1 crack-to-powder ratio in sentencing; and (2) whether a 1:1 ratio is appropriate in this case.  This written ruling addresses only these questions, although other matters were resolved at defendant Gully’s sentencing hearing....

[I]n this case, the prosecution offered no argument or logical reason why crack cocaine and powder cocaine should be treated differently, on the basis of the controlled substances themselves.  Rather, the prosecution reiterated the policy line, which this court rejects, that different treatment of crack and powder is appropriate in this case because of this defendant’s conduct, i.e., that the crack-to-powder ratio is an appropriate proxy for other kinds of harm or criminal conduct perceived to come with crack trafficking.  Again, this court believes that the appropriate course is to treat interchangeable forms of cocaine as equivalents, and to enhance punishment when additional criminal effects and use of weapons, for example, are present in a particular case.

Download Gully 1-1 crack sentencing

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Comments

It is completely astonishing to me that the government has abandoned this fight and now endorses the 1:1 ratio as if there was never any reason for treating these two types of offenders differently.

Notice I say "offenders" and not types of drug. One of the things that gets lost in the popular press and, consequently, the debate on the 100:1 ratio is what the law actually is punishing. Certainly there can be no doubt that crack is cocaine. While I do not doubt the many anecdotal stories and medical studies that suggest that crack is more dangerous to it's user, the criminal sanctions are against the individuals selling crack and powder, and the differential conduct they engage in, not the drugs themselves. That may seem simple, but I think it's lost on many people.

The only pertinent question to ask when determining punishment is what are differences between these two groups of offenders that suggest one crime is more serious, more dangerous, and more ruinous to the community than the other?

To put it simply, the answer to this question is obvious to anyone bothering to look at the facts rather than simply go with the prevailing wind or pander to race politics.

You may comfortably set aside the facts about what crack did to communities around this country in the '80's and '90's, probably because many lawyers and judges live comfortably far from these ravaged communities.

You may comfortably dismiss the individual human toll of crack because crack is very often a poor man's drug and many lawyers and judges also avoid personal or familial knowledge of the personal devastation of crack. In one year, 1986, the number of cocaine related emergencies more than doubled, the murder rate doubled from a decade before, and it has only slackened in recent years - yet some jurists want to release the cast and crew that produced this urban tragedy to do it all over again.

You may also comfortably tout that there is no difference between the crack trafficker and the cocaine trafficker - and you'll be joined by many mistaken people including Congressmen - and you will be, forever, wrong.

You may be one of the thousands of reformers that like to talk about rehabilitation as the real solution - and just what does "rehab" for selling crack, running a criminal organization, engaging in assault, murder, and mayhem look like?

According the US Sentencing Commission's newest 2008 data, only 0.5% of crack sentences are for possession. The rest are traffickers. I am no expert on the composition of state court drug offenders, but in the federal system, they aren't just addicts. It is astonishing to me the number of alleged experts on this topic that continue to talk about rehab in relation to traffickers.

Ah, but you say: "they are just 'little guys' that sell a 'sugar packet' on the side because they are poor addicted victims!" Where's the empirical evidence for the lowly crack-addicted fall guy? I'll tell you where: your imagination. According to USSG data fully 48% of all crack defendants have a minimum of 50 grams. 50 grams is worth at least $2500. If handing over $2500 in product to a small-time crack addict seems like a logical business plan to you I have some subprime mortgage-backed securities to sell you.

Three easily available statistics prove the absolute fallacy inherent in the "1:1" argument - crack defendants as a group are demonstrably, empirically, more dangerous than powder cocaine defendants.

First, nearly 60% of powder defendants are in USSG criminal history category I (for those unaware, that means they have, at best, a couple of petty offenses in their history). Whereas 25% of all crack defendants are in CHC VI (i.e. multiple felonies). In fact, 45% of crack defendants are serious felons (CHC IV and above). Crack defendants are empirically, demonstrably more dangerous than powder defendants. Over 80% of crack defendants are in the midst of a criminal career while 60% of powder defendants either have a clean history or only a petty offense.

Secondly, USSG sentencing data also shows us that crack defendants are three times as likely to traffic at protected locations (like schools), and three times more likely to rent or manage a drug establishment (the infamous crackhouse that is a blight on so many communities).

Third, a weapon is nearly twice as likely to be involved in crack trafficking versus powder trafficking according to the very latest empirical data from the USSG. Almost a third of crack defendants have a weapon associated with their offense. Will weapon safety be part of the "rehab" you crusaders have in mind? Target practice so they can put the community members out of their misery quicker?

No drug offense, not powder, not the big H, not meth, involves the same level of violence. This is not George Bush Snr. shaking a baggie full of rock at you, these are what we in the real world call "facts".

By focusing on the trees of unfair ratios otherwise intelligent people have completely missed the empirical, statistical, factual forest in full bloom: crack defendants are more dangerous, more likely to be armed, have more extensive criminal backgrounds, and should not be treated the same as a different, less dangerous and less violent group of defendants.

Is the 100:1 rational and fair? Maybe not, but neither is 1:1.

Posted by: CrackFacts | May 19, 2009 10:24:07 AM

As soon as I saw Iowa, I knew which judge it was. I'm not sure why every one of his opinions linked on this cite includes citations to whatever is in the news that supports his views as well as a gratuitous swipe at the U.S. Attorney's office. I wonder if the office actually deserves all of the venom spewed at them or this judge is just the defense bar's representative on the judiciary.

Posted by: anonymous | May 19, 2009 10:25:43 AM

Great opinion. I think the prior comment confuses venom with fact. How about addressing the merits of the opinion.

Posted by: Steve S | May 19, 2009 11:06:27 AM

CrackFacts, your arguments do nothing to show that 1:1 is not proper. It is important to remember that the 1:1 ratio is only determining a part of the individual's sentence (albeit, as the current GL is structured, a large part) that is tied to quantity. There are other components of sentencing. With that in mind, let's see how valid your points are.

First, you complain about the criminal history of crack offenders versus power offenders. Well, naturally, those with a CH VI will by necessity be punished more severely than a person who commits the same offense with CH I. Because criminal history is accounted for elsewhere, there is simply no reason to treat the drug quantities differently.

Second, you complain that crack offenders commit their offense in worse places and run "crack houses." There are enhancements for this (or could be). When there is a way to specifically target the "worse" conduct (i.e. through specific offense characteristic enhancements), then there is no reason to say categorically that crack quantities need to be treated differently.

Third and fourth, you complain about the use of a weapon and violence by crack offenders. Again, there is a better way to deal with this problem rather than subjecting all crack quantities to higher sentences. In fact, if you read the DOJ's testimony two weeks ago, you'll see that while simultaneously advocating for a 1:1 ratio, the DOJ also says those who use guns and violence must be treated differently.

The problem with your argument is easily seen in both your introduction and conclusion as well. You say that we need to be sentencing crack "offenders" and that "crack defendants are more dangerous, more likely to be armed, have more extensive criminal backgrounds, and should not be treated the same as a different, less dangerous and less violent group of defendants." But it is VERY EASY to account for specific OFFENDER facts in sentencing without categorically saying that all crack OFFENSE facts are the same.

By using the 1:1 ratio, the DOJ is merely recognizing that offenses involving crack are non categorically more serious than offenses involving crack. Accordingly, drug quantity should be treated equally. If, in fact, you are correct that the typical crack offender is different than the typical cocaine offender, then we can deal with that in more efficient and targeted ways.

Posted by: DEJ | May 19, 2009 11:06:45 AM

If one looks at the data from the U.S.S.C. for the Northern Iowa district it has the highest drug sentences of the 94 districts - more than twice the national average for each drug type. I would think that would reflect the policies of the U.S. Attorney rather than the sentencing judges - they don't have that much discretion to generate this large of discrepancy.

Posted by: Prof. SG | May 19, 2009 11:16:14 AM

Thanks DEJ, you have made most of my points to "Crack facts" post. The important thing to note is that weapon use, criminal history, use in the vicinity of a school are all taken into account CURRENTLY in the federal guidelines. So, some may say that by having any ratio, you may be double counting the harm.

Posted by: Kristopher | May 19, 2009 11:41:35 AM

Anonymous - if you read the opinion the judge went from the 1:1 range of 30 - 37 months up to 84 months using the remaining 3553(a) factors - hardly a "defense bar's represetative on the judiciary" as you thoughtlessly claim. Reads like a very well thought out and nuaunced sentence.

Posted by: KevinG | May 19, 2009 11:48:25 AM

Judge Bennett's arguments for the 1:1 ratio (as opposed to the 5:1 ratio that the Sentencing Commission has suggested or the 20:1 ratio adopted in other cases) gloss over the differences between crack and powder.

There is some logic to his point that "even if crack offenses are more likely to involve weapons or bodily injury..." those things can be addressed when they actually occur in a particular case. He ignores, however, that crack is more addictive than powder. That circumstance is present in *every* case.

After all of the windup, I was surprised to see that the ultimate sentence imposed wasn't ridiculously lenient. Guidelines calculation is 108-135 months with the 100:1 ratio and 30-37 months with the 1:1 ratio, and Judge Bennett ultimately settled on 84 months. I was expecting to see probation at the end of all of the rhetoric.

The tone of the opinion is just bothersome because it uncritically reiterates all of the standard anti-100:1 arguments while giving short
shrift to the arguments on the other side. It's also clear that he has next to no respect for the US Attorney's office (whether this is deserved or not, I have no idea).

To be clear, his reading of Kimbrough/Spears is obviously right, but I find his explanation of his decision to use a 1:1 ratio in every case to be unpersuasive and tendentious.

Posted by: anonymous | May 19, 2009 12:00:01 PM

anonymous --- do you also think the US Sentencing Commission in 1995 and the current DOJ has also given "short
shrift to the arguments on the other side"?

Put simply, one can have a great policy debate over and reach different reasonable conclusions whether and why crack and powder cocaine should be treated differently --- just like one can have a great debate and reach different reasonable conclusions over whether and why pot plants and pot seeds should be treated different. This issue now is NOT whether one can have a reasonable debate, but rather what should be the outcome of that debate.

In 1995, the USSC decided 1:1 was the best "final answer," though it never convinced Congress to adopt this answer. Now the current DOJ has decided 1:1 is the best "final answer," and time will tell if DOJ can convince Congress to adopt this answer. In the meantime, given that not even members of Congress endorse the status quo of 100:1, what should district judges do in actual cases while the new policies get debated. I think Judge Bennett make a good case for the idea of adopting 1:1 and he did so only after giving the local prosecutors a chance to argue alternatives.

The fact that Judge Bennett (and/or the USSC and/or DOJ) adopts a 1:1 answer now is not alone evidence that other arguments have been given short shrift, just evidence that these folks were not persuaded by these arguments.

Posted by: Doug B. | May 19, 2009 12:15:57 PM

The House Judiciary Committee is holding a hearing on the crack/cocaine disparity this Thursday - see http://judiciary.house.gov/hearings/hear_090521.html.

Posted by: anon | May 19, 2009 12:22:52 PM

anonymous -- from reading this opinion it does not sound like there were any arguments on the other side - have you read the briefs to see if what you claim Judge Bennet ignored was even argued by the Government? As for your "venom" comment - that was a light glancing blow hardly worhty of "venom." As for glossing over the difference between crack and powder- I thought Judge Bennet nailed it - baking soda and water - every other difference in a specific case can be handeled through the 3553a factors.!!!!!!!!

Posted by: Lawdog | May 19, 2009 12:36:47 PM

Prof. Berman, thanks for the response.

I'll read the opinion more closely. I came away with the impression that the USSC's current views are something on the order of 5:1 as a suitable ratio and that the current DOJ has said that the 100:1 ratio is wrong but has been equivocal about what the correct ratio should be. As such, I'm not sure whether the DOJ or the Sentencing Commission gave short shrift to the arguments for giving *any* differential treatment to crack and powder because I did not have the impression that those groups had rejected those arguments entirely.

It's certainly clear that Judge Bennett is free to use a 1:1 ratio if he wants, and it's reasonably clear that both sides dropped the ball when he gave them a chance to argue about a proper ratio. That said, he took it upon himself to explain why he adopted a 1:1 ratio and, while I found his anti-100:1 arguments persuasive, I didn't find his pro-1:1 arguments persuasive. If the DOJ and the Sentencing Commission are actually in full agreement with that, then it makes Judge Bennett's arguments more persuasive than I thought, but that wasn't my impression.

Posted by: anonymous | May 19, 2009 12:48:29 PM

DEJ:

First, there are many other examples in the guidelines where the substantive guideline itself considers criminal history to calculate a base offense level or a specific offense characteristic. Just look to the hefty enhancement for prior felonies in the reentry guideline and the career offender provisions. These provisions have been repeatedly determined not to be double counting because the enhancement, as with the higher ratio for crack, serves a specific purpose to gradiate the seriousness of that specific offense. This applies also when accounting for other specific factors such as sale in protected places and use of a weapon, sure you can (and do) have specific offense characteristics for such conduct, but there is nothing barring those considerations being factored into another characteristic as well.

And in fact, if you look historically at the 100:1 ratio these are the very factors that were discussed when Congress made it's determination.

As with many who want 1:1 out of "fairness" you gloss over the facts that identify offender characteristics and posit an unsupported premise about these two types of conduct being the same.

The statistics clearly show that the crack offender population has a MORE violent criminal history, MORE likely to have large quantities of the drug, and MORE likely to have weapons as compared to powder.

These are all factors to be considered when determining the ratio because, ONCE AGAIN, we're not punishing the drug, we're punishing the conduct. Clearly crack trafficking defendants are different from typical powder defendants, depite your feeling otherwise, and the reason the ratio was first introduced was to reflect this serious difference.

Your rebuttal, as with most arguments to the contrary, also pre-supposes a population of offenders that simply doesn't exist except in your imagination, and you still want to talk about how these offenders are not "categorically" different?!?

I'm at a loss on how to discuss a serious issue with someone so militantly opposed to looking at the facts.

Posted by: CrackFacts | May 19, 2009 1:01:30 PM

CrackFacts,

The guidelines are based on individual sentencing. If we had to do sentencing en mass, based on limited information (e.g., we were just told the offense date and the weight and identity of the substance trafficked), your generalizations about the prevalance of aggravating factors in crack trafficking might have some force. But, as has been pointed out repeatedly, the guidelines *already provide* for severe escalations in sentencing where an offender "has a MORE violent criminal history, . . . [has] large quantities of the drug, and . . . [has] weapons." They also provide enhancements for things such as "running a criminal organization, engaging in assault, murder, and mayhem," not to mention that those activities are subject to separate, severe criminal liability. The whole point of the guidelines is *not* to paint with a broad brush based on aggregate characteristics of demographics like the "crack offender population," but to attempt to match each individual's punishment to that individual's culpability.

I am sorry, I don't mean to seem condescending by reiterating the basic purposes of the guidelines; you are obviously well versed in the system. But I feel that it is necessary as you seem to be operating as if this system did not exist.

In the end, if you are correct about the aggregate characteristics of crack offenders, crack offenders as a group still will be much more severely punished than powder offenders, so I am not really sure why you are so provoked by the change. I suppose that from a certain perspective there is a loss in terms of the political and symbolic message of the 100:1 ration, but I would argue that such political messages should be divorced from, not endorsed by, judicial proceedings.

Posted by: Observer | May 19, 2009 1:27:01 PM

Lawdog writes:
[anonymous -- from reading this opinion it does not sound like there were any arguments on the other side - have you read the briefs to see if what you claim Judge Bennet ignored was even argued by the Government? ]

No. The opinion strongly suggests that the briefs on both sides were pretty weak, so he did his own research. E.g. p. 9 ("The parties’ responses do not even remotely address the full scope of the question
of whether a 1:1 ratio (or some other ratio less than 100:1) is appropriate in this case, let
alone the implicit question of whether a 1:1 ratio is appropriate in “crack” cases generally.").

What follows is a weighing of the policy arguments for and against varying degrees of differential treatment for crack and powder. The "crack is more addictive" argument is acknowledged in the opinion, easily found through some research, and--in my view--brushed aside without much explanation in the opinion.

I re-read the opinion. I don't know if Judge Bennett is correct in suggesting that the 1995 Commission recommendation of 1:1 was the most forthright statement from the Commission and later versions suggesting higher ratios only did so because of a practical concern for what Congress would tolerate. "[T]hwarted by Congress" is an interesting way to describe the interaction between the Sentencing Commission and Congress.

I also don't read the DOJ's statements quoted in the opinion as saying that a 1:1 ratio is any kind of "best 'final answer.'"

Posted by: anonymous | May 19, 2009 1:37:33 PM

In regard to the violence spike in the late 80s associated with the introduction of crack, everything I've seen on that would seem to indicate that it was due in great part to the lack of existing criminal organization in the emerging markets. If that is true, regardless of whether current offenders continue to arm more heavily from remembered bad times, it would at least undercut some of the argument for blaming the drug itself.

Given how much the murder rate has come down despite the continuing presence of crack in the criminal market leads me to believe that this argument can not be dismissed out of hand.

Posted by: Soronel Haetir | May 19, 2009 1:53:23 PM

Observer: But your point and the point DEJ previously made assume that crack and powder defendants are in the same "category". I suggest that the statistics, the history of the '80's and '90's epidemic, and the determination of Congress was that they were not the same at all.

To reiterate, since it seems to be lost, there is plenty of permissible "double counting" in much of the guidelines. It doesn't matter if crack and powder are ostensibly the same substance (and many would argue they are not), the facts clearly show the CONDUCT of those trafficking these two substances is entirely different.

Lets take the 1:1 parity argument many of you have tendered to its logical conclusion. Why not have parity with marijuana, heroin, and every other drug? Why are they not in the same "category"? Why have drug sentences so different from fraud, for example?

Why? Because Congress, the courts, and the USSC have made comparative determinations. Even crack defendant apologists would tend to agree that murder merits more punishment than theft. So how would one determine these differences? Well, as the public defender community so slavishly points out in every motion, brief, and bated breath: the Supreme Court suggests the basis should be (in part) through empirical evidence.

Using the all-important empirical evidence a reasonable sane person cannot conclude that crack offenders are in the same "category" as powder defendants.

Does all of this suggest a 100:1 ratio?

Probably not. But there is no room for a parity argument unless one chooses to ignore all the empirical evidence to march in lockstep with the party line.

It is endlessly amusing to see progressive sentencing reformers tout the empirical data mantra only conditionally when it suits their emotional need to lower all sentences all the time. When the facts are against you we devolve into "fairness" and "individual sentencing" which are code words for "exceptionalism over parity".

Posted by: CrackFacts | May 19, 2009 1:56:37 PM

Oh, Steve S: there are no merits to this opinion.

There is certainly also no merit to a government that fails to make the obvious argument for their own well established policy.

I find the judge's reasoning embarrassing because it focuses on the nature of the two controlled substances rather than the conduct of the defendant the judge was sentencing in the context of crack trafficking overall.

The judge is either purposefully ignorant of the legislative and judicial development of crack sentencing policy (there are only a half dozen 200+ page reports from Congress and the USSC on the topic), or blatantly uninterested in assuming his constitutional role of implementing the intent of Congress.

You choose.

Posted by: CrackFacts | May 19, 2009 2:15:52 PM

CrackFacts and anonymous --

Thank you for your posts.

The one thing missing from this debate is any mention of the return of gross and gratuitious disparity in sentencing. Judge Bennett goes his own way. The defense bar applauds. But the applause won't last long.

An identical defendant in an identical case down the hall from Bennett's courtroom could get three or four times the sentence, and under the new, anything-goes (oooooooops, I mean "advisory") guidelines, a defendant has no recourse. Supreme Court caselaw is quite clear that a judge may, but by no means has to, base his sentence on his view that the 1:100 ratio is wrong.

There are plenty of judges who think it's right, however. They are free to do as they wish.

This kind of freakish disparity may be many things, but justice it is not. Without mandatory guidelines, this was bound to happen, and it has only just begun.

We can have either each judge doing his own personal thing, or we can have something that is recognizable as law, but we can't have both.

Posted by: Bill Otis | May 19, 2009 3:40:42 PM

Cracfacts...interesting posts but I think you mis the mark. I practice in the N.D. of Iowa in the Eastern part of the state. You calim the judge was not focused on the conduct of the defendant but Gully got 84 months almost 3 times the bottom of his guidline range - and the judge made clear his specific reasons for applying the 3553a factors to increase the sentence from the 1:1 ratio exactly what you calim he did not do. Crack is nothing more than powder with water, baking soda and heat. Any aggravating factors can be used to increase a sentence using the 3553a factors exactly as the judge did here. And as for the last comment -- I suggest a 100:1 ratio is the real "freakish" disparity - at least now if other judges follow suit some crack defendants will be treated fairly - that's better than NONE !!!!

Posted by: ShawnG | May 19, 2009 3:58:53 PM

Great debate everyone, though there is still a lot more worth saying. Let me add a few points:

1. DOJ is now saying expressly that "The Administration believes Congress’s goal should be to completely eliminate the sentencing disparity between crack cocaine and powder cocaine." That sounds like a clear endorsement of a 1:1 ratio.

2. Because powder cocaine can be (and often is) made into crack, the argument for parity seems stronger here than elsewhere. Though there can and always will be debates about how sentencing law treats possessing/selling different illegal substantances (pot v. cocaine v. LSD v. bombs v. kiddie porn), it seems quite strange to punish very differently the same basic item in different forms (e.g., wouldn't it seem strange to punish differently those who possesses the same child porn picture based on whether it was printed on a 4x6 or a 8x10 photo paper?).

3. In my view, it is fundamentally misguided to have the weight of drugs be THE primary driver of a sentence no matter how that weight is measured/assessed. So, a big problem with any disparate crack/powder ratio is that it adds another problematic factor to the already problematic emphasis on drug weights.

4. Bill's point about disparity shoudl not be overlooked, though it ultimately presents a critical reason why Congress and the USSC should move quicker on getting the system to 1:1 so that this issue need not create continuing unwarranted disparity.

Posted by: Doug B. | May 19, 2009 4:41:40 PM

Professor:

1. I totally agree that the current DOJ is playing politics and has abandoned all principle in this debate.

2. I must point out again that the difference is not a difference based on what the drug's recipe is, the difference is in the offenders and their offense conduct. Crack offenders are demonstrably NOT analogues to powder offenders even if their product is (and that is debatable also). I don't want to rehash all the stats again, but I find it hilarious that defense counsel jump up and down about empirical evidence to underpin sanction policy until it hits them, and their gun-toting, multi-felon defendants, right between the eyes. This is the long-winded way of saying that comparing drugs misses the point completely and ignores the clear empirical data surrounding crack offenders.

3. Weight is the perfect proxy for drug trafficking severity. The common complaint from the defense bar is that "little guys" get caught up in these cases. The facts herein debated belie that canard. Additionally, if you remove this proxy in the post-Booker world look for the white defendants to get an even bigger break and disparity, the real gift of Booker, will increase even more.

4. Disparity will not die with the abolition of drug mand. mins, nor even with the re-drafting of guidelines like child porn. Disparity is growing and will only continue to grow regionally (even inter-courthouse) and along racial lines. It's really a shame that so much of the sentencing discourse in the last few years has been rah-rah boosterism about what Booker means. A hard look at the data shows that the vast majority of defendants still get what they would have under the mandatory system (75%~) and that will not likely change much anytime soon. Booker really doesn't mean much to those outside a narrow category of cases judges dislike (crack, fraud, child porn). For those lucky enough to draw the "right" judge their sentences are lower, others? Tough luck. I don't know if the USSC has the breakdown on who the "new" downward variances are, but does anyone want to take bets on their crimes (child porn, fraud) and their backgrounds? People forget that the SRA was a bipartisan effort and not simply a "lock 'em up" reform. The ugly side of judicial sentencing freedom is the untold story here - the more than doubling of upward variances/departures post-Booker (from .07% of cases in 2004 to 1.7% of cases in 2008). That small little percentage point equals thousands of real living people that have reaped the whirlwind of Booker... so far.

Posted by: CrackFacts | May 19, 2009 5:30:20 PM

Shawn: Yes, I see the tight reasoning in using specific, empirically based "factors" like "conduct that would warrant enhancement."

What a bright future sentencing by judicial fiat has in the USA. Glory be.

Posted by: CrackFacts | May 19, 2009 5:38:15 PM

"An identical defendant in an identical case down the hall from Bennett's courtroom could get three or four times the sentence, and under the new, anything-goes (oooooooops, I mean "advisory") guidelines, a defendant has no recourse. Supreme Court caselaw is quite clear that a judge may, but by no means has to, base his sentence on his view that the 1:100 ratio is wrong." Quote from Bill Otis above

I have a case coming up for sentencing on June 2nd that involves the judge "down the hall" from Judge Bennett in the Northern District of Iowa. Two defendants involved in the same undercover crack transaction were separately indicted, and assigned to different judges. One has already been sentenced by Judge Bennett (after Kimbrough) and received a downward variance to the 5 year mandatory minimum (he initially went even lower until told that the mandatory minimum applied). My client is in front of the other judge for sentencing.

Judge Bennett has now clearly announced is position of applying a 1:1 ratio. The other judge has not yet announced her position, although historically she has applied a 100-1 ratio. It is my understanding that she recently took a 1:1 ratio argument under advisement in another sentencing.

There are some differences between the two defendants regarding offense conduct and criminal history, but they are reasonably similarly situated. The key question is that since one has already received a downward variance, will unwarranted sentencing disparity be created if the other does not also receive a reduction?

Posted by: Webb Wassmer | May 19, 2009 5:44:29 PM

Webb: Given the recent Supreme Court precedent, I don't see how any disparity will be "unwarranted" if the judge follows the proceedural rules for sentencing and articulates a reason under 3553(a). Substantive review appears to be DOA.

Posted by: CrackFacts | May 19, 2009 6:00:34 PM

Why the base offense level should be so dramatically different for different (100:1)weights of the same drug plus (baking soda for crack) never made any sense to me. All Judge Bennett did was equalize the base offense level for drug quantity and then use the 3553a factors to arrive at a sentence that fits the facts of the case.Crackfacts has this backwards. Webb your defendant may get screwed but at lest one co-defendant got a fair sentence - you seem to suggest that all defendants would be treated more fairly by getting the higher sentence from "the judge down the hall" maybe that's because you do not seem committed to criminal defense work. Remember, Judge Bennett was the district court judge that used the 20:1 ratio that the 8th Circuit reversed and the Supreme Court then reversed the 8th Circuit - so much for this Judge being the "defense bar's representitive on the judiciary" - it's a sad state of affairs when a criminal defendant has to rely on a very, very conservative Supreme Court for justice denied by the Circuit - over and over again. E.g. Gall,Spears,Kimbrough,Rita etc and the latest identity fraud case reversing the 8th Circuit 9-0.some justice is better than none as a prior post pointed out.

Posted by: SheliaB | May 19, 2009 6:09:06 PM

What is all the fuss about? All the judge did was to equalize the base offense level for what is essentially the same drug and then adjust the sentence upward for the specific facts of this case. Crackfacts you obviously don't like the Supreme Court decisons starting with Blakely up to last weeks 8th circuit's most recent sentencing reversal in the identity theft case. There is NO logical reason why the Base Offense level should be different for crack/powder cocaine. All the other factors you moan about in crack cases can be adjusted for if they are present in the case. To punish a crack defendant who is not violent because some are is like punishing a person who commits a assualt like a murderer because some assualts result in murder. The specifc facts of each crime and each defendant should drive a sentence not whether you add water and baking soda to x grams of powder cocaine. Thank God there are judges willing to exercise their constitutional duty of sentencing on the specific facts of each case and not automatically defering to the USSC.

Posted by: SheliaB | May 19, 2009 7:16:50 PM

Crackfacts,

Your argument about double counting proves my point. An item gets accounted for twice in the GL calculation only if it in fact exists. It's not reflected in the base offense level. For example, when an illegal re-entry defendant gets two enhancements for his prior conviction (once because of the specific offense characteristic and again in his CH calculation), it is only because that particular offender, in fact, has such a prior conviction. All illegal re-entry offenders start with the same base offense level, then the sentence is enhanced based upon the prior conviction.

The same should be true about the base offense level for crack and cocaine. The drugs are the same; the base offense level should be the same. Then, you use enhancements to account for guns, violence, school-zones, prior offenses, etc.

You insist that you want to punish "conduct." Agreed. If a cocaine dealer has a gun and sells near a school, he should receive an enhancement based on this conduct. Similarly for crack dealers. But if a crack or cocaine dealer does not engage in such activity, then the base offense level for the crack dealer should not prematurely reflect such characteristics.

You say "clearly crack trafficking defendants are different from typical powder defendants ... and the reason the ratio was first introduced was to reflect this serious difference." First, the word "clearly" usually means it's not clear. Please cite me to this empirical data you find so convincing. Second, the rationale for 100:1 when it was "first introduced" has been soundly repudiated. It's not a strong point to reference such reasoning. Third, even if MOST crack offenders are different than the typical cocaine offender, then let’s account for that through enhancement that would apply in MOST crack cases; let’s not apply a blanket de facto enhancement through a more severe crack base offense level.

You say I "pre-suppose[] a population of offenders that simply doesn't exist except in [my] imagination." I can tell with absolute certainty that I have seen crack offenders in Criminal History category I, who did not use a gun or violence, but who got sentenced to 20+ years due in large part to the 100:1 ratio. I've seen it because I've reviewed many, many crack cases as a part of the crack retroactivity amendment. By no means does this offender exist only in my imagination.

In essence, I think we both agree that we should be sentencing based on conduct and offender history. You just seem to think that all crack offenders should be pre-supposed to use violence, have a gun, run crack houses, have a long criminal history. I make no pre-supposition.

Finally, in furthering my idea that we should be focusing on conduct, I think Prof. Berman is absolutely correct that the weight of drugs should not be "THE primary driver of a sentence." It should certainly be a factor, but the seriousness of a person's conduct is better determined by examining other factors besides weight.

Posted by: DEJ | May 20, 2009 2:04:15 AM

Crackfacts,

Your argument about double counting proves my point. An item gets accounted for twice in the GL calculation only if it in fact exists. It's not reflected in the base offense level. For example, when an illegal re-entry defendant gets two enhancements for his prior conviction (once because of the specific offense characteristic and again in his CH calculation), it is only because that particular offender, in fact, has such a prior conviction. All illegal re-entry offenders start with the same base offense level, then the sentence is enhanced based upon the prior conviction.

The same should be true about the base offense level for crack and cocaine. The drugs are the same; the base offense level should be the same for same quantities. Then, you use enhancements to account for guns, violence, school-zones, prior offenses, etc.

You insist that you want to punish "conduct." Agreed. If a cocaine dealer has a gun and/or sells near a school, he should receive an enhancement based on that conduct. Similarly for crack dealers. But if a crack or cocaine dealer does not engage in such activity, then the base offense level for the crack dealer should not prematurely reflect such characteristics.

You say "clearly crack trafficking defendants are different from typical powder defendants ... and the reason the ratio was first introduced was to reflect this serious difference." First, the word "clearly" usually means it's not clear. Please cite me to the data you find so convincing. Second, the rationale for 100:1 when it was "first introduced" has been soundly repudiated. It's not a strong point to reference such reasoning. Third, even if MOST crack offenders are different than the typical cocaine offender, then let’s account for that through enhancements that would apply in MOST crack cases; let’s not apply a blanket de facto enhancement to all crack offenders through a more severe crack base offense level.

You say I "pre-suppose[] a population of offenders that simply doesn't exist except in [my] imagination." I can tell with absolute certainty that I have seen crack offenders in Criminal History category I, who did not use a gun or violence, but who got sentenced to 20+ years due in large part to the 100:1 ratio. I've seen it because I've reviewed many, many crack cases as a part of the crack retroactivity amendment. By no means does this offender exist only in my imagination.

In essence, I think we both agree that we should be sentencing based on conduct and offender history. You just seem to think that all crack offenders should be pre-supposed to use violence, have a gun, run crack houses, have a long criminal history. I make no pre-supposition.

Finally, in furthering the idea that we should be focusing on conduct, I think Prof. Berman is absolutely correct that the weight of drugs should not be "THE primary driver of a sentence." It should certainly be a factor, but the seriousness of a person's conduct is better determined by examining other factors besides weight.

Posted by: DEJ | May 20, 2009 2:50:31 AM

So, I guess we should punish possession of marijuana brownies less severely than possession of marijuana joints? I mean, after all, I'm sure there's some study or statistics that show defendant's who possess marijuana brownies are less violent (and don't burn holes in the upholstery with matches) than those who possess marijuana joints.

Posted by: Mark#1 | May 21, 2009 12:16:23 AM

I have read all the posts on this debate and spent many years thinking on this subject. Many of the legal briefs filed over the past 22 years contain many of these same arguments for correcting a skewered sentencing scheme. It is not just "crack" vs. "powder" that should be the debated subject, but any and all disparity's in sentencing, as that was the primary goal of the passage of the Sentencing Reform Act, to eliminate the vast disparity's in sentences being meted out by the Judge's and the US PAROLE COMMISSION.
Instead Congress enacted the matrix known as the Sentencing Guidelines, quantifying many factors that "should" be considered in considering a sentence for someone convicted of the myriad criminal statutes. At one point the Sentencing Guidelines contained special procedures for imposing sentences on LSD resulting in huge disparity's in sentences based upon the weight of the carrier medium.
Julie Stewart from FAMM, in a Herculean effort to free her brother from an unjust sentence for LSD, helped get this glaring disparity overturned.
A Justice System like ours, founded upon pure principles, should not be allowed to imprison an entire nation of users for the sake of the appeasment of puritent values of a few.
I have been screaming about the disparity's of this system for years, however have failed miserably to get out from under this political quagmire, as those in power follow the age old principle, power corrupts, absolute power corrupts absolutely.

Judge Bennett's reasoned and thoughful approach to the sentencing of this man echo's many of those same sentiments used in countless sentence proceedings over the past two decades, forcing some of our lifetime appointed Judges to retire early due to their disagreement with the sentences they were FORCED by law to mete out, by Congress' thoughtless and economically devastating enactment of this sentencing scheme.

http://criminaljustice.change.org/blog/view/an_end_to_sentencing_inequality

http://criminaljustice.change.org/blog/view/bring_back_federal_parole

http://criminaljustice.change.org/actions/view/end_this_sentence

Posted by: mark schmanke | May 21, 2009 7:18:09 AM

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