Judge Adelman strikes again

Wisconsin US District Judge Lynn Adelman — who helped define the post-Booker debate with his Ranum opinion (basics here, commentary here and here), and added great insight with his subsequent Galvez-Barrios opinion (basics here, commentary here) — has added another impressive effort with US v. Smith, No. 02-CR-163 (E.D. Wisc. Mar. 3, 2005). 

Smith — which can be downloaded below and merits a close read for all its insights — deals with post-Booker judicial fact-finding, departures based on substantial assistance and other important issues.  But the fireworks come in Smith's discussion the disparity between crack and powder cocaine.  Here are just some of the some highlights:

As is now notorious, the guidelines create a 100 to 1 ratio between crack and powder cocaine.  In other words, the guidelines treat possession of 50 grams of crack cocaine the same as they treat possession of 5000 grams (5 kilograms) of powder cocaine.... Courts, commentators and the Sentencing Commission have long criticized this disparity, which lacks persuasive penological or scientific justification, and creates a racially disparate impact in federal sentencing....

The Commission has studied the issue in depth and concluded that the assumptions underlying the disparity between crack and powder are unsupported by data.... [N]one of the previously offered reasons for the 100:1 ratio withstand scrutiny.  Perhaps most troubling, however, is that the unjustifiably harsh crack penalties disproportionately impact on black defendants....

Primarily as the result of the different penalties for crack and powder cocaine, and contrary to one of the Sentencing Reform Act's primary goals, the sentencing guidelines have led to increased disparity between the sentences of blacks and whites.... [T]he disparity in sentences involving crack and powder brings irrationality and possibly harmful mischief into the criminal justice system.

To its great credit, the Commission has repeatedly sought to reduce the disparity....  Only Congress can correct the statutory problem, but after Booker district courts need no longer blindly adhere to the 100:1 guideline ratio.

In the present case, I concluded that adherence to the guidelines would result in a sentence greater than necessary and would also create unwarranted disparity between defendants convicted of possessing powder cocaine and defendants convicted of possessing crack cocaine.  The question then became what ratio to apply. Everyone seems to agree that 100:1 is too high.... The Commission has studied this issue and acquired expertise [and proposed a 20:1 ratio], [and thus] I gave its recent recommendation heavy weight.

Download adelman_smith_crack_opinion.rtf