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May 21, 2009

The persistent and enduring challenges of cracking the crack disparity in Congress

As detailed on this official hearing page, this morning the Subcommittee on Crime, Terrorism, and Homeland Security of the House Judiciary Committee has been holding a hearing on crack sentencing.  As I predicted in this prior post, it does appear from the written testimony (now linked from the hearing page) that everyone involved in the hearing is speaking out against the current 100:1 drug weight ratio that now exists in federal statutory sentencing provisions.  But while the status quo 100:1 ratio is being universally criticized, exactly what should take its place is subject to continuing debate.

Specifically, consider this passage from the written testimony of Joseph Cassilly, the President of the National District Attorneys Association:

I am testifying on behalf of the National District Attorneys Association, the oldest and largest organization representing State and local prosecutors. I have attached a resolution adopted by NDAA regarding the sentencing disparity between crack and powder cocaine. NDAA agrees that some adjustment is warranted, but just as the 100:1 disparity cannot be justified by empirical data we believe that the proposed 1:1 realignment of Federal penalties for crack versus powder cocaine also lacks any empirical or clinical evidence.  A random adjustment will have severe negative consequences on the efforts of this nation’s prosecutors to remove the destructive effects of crack and violence from our communities....

The nation’s prosecutors urge Congress to adopt a sentencing scheme with regard to the destruction caused by crack cocaine to our communities.  If there is a need to reduce the disparity between crack and powder cocaine then perhaps the solution is to increase sentences for powder cocaine.

Similarly, consider this passage from the written testimony of Bob Bushman on behalf of the National Narcotics Officers Association Coalition:

We have been asked, repeatedly, over the past few years about our views on legislative proposals to reduce the crack-powder disparity.  While we believe that the existing law has been a valuable tool in reducing the impact of crack on communities, we realize that it has also had a negative impact on some people’s perception of law enforcement. So, while we agree that it is appropriate for Congress to review the law, we also believe that Congress should consider a solution to narrow the disparity between crack and powder cocaine that includes lowering the threshold quantity for powder cocaine. We do not believe the best approach is to dramatically increase the threshold amount of crack that triggers the minimum penalty.

In other words, even though it does not appear anyone will come out in full-throated support for the current 100:1 crack/powder statutory status quo, there are still strong voices calling for preserving some significant disparity in crack/powder sentencing provisions and/or advocating that the solution is to make powder cocaine sentences harsher instead of making crack sentences softer.

This persistent and enduring reality — namely the robust policy debate over exactly how the current 100:1 disparity should be addressed — accounts for why I remain, as expressed here, depressingly skeptical that major federal sentencing changes in this area (or others) is imminent.  One of the fascinating lessons of modern sentencing reforms over the last few decades (especially at the federal level) is that it is relatively easy to enact legislation to increase sentences and extremely hard to enact legislation to reduce sentences.  

So, while advocates for lower sentence can and should remain hopeful in light of recent development, they also must be realistic about the political challenges of achieving broad and significant sentencing reforms in the legislative arena.  That is why I have been saying since November that federal sentencing reformers should focus principally on the USSC and courts, because status quo biases and the challenges of legislative inertia do not as directly prevent them from engineering major reforms (as Blakely and Booker highlighted so dramatically).

Some related recent posts on crack sentencing debates:  

May 21, 2009 at 01:28 PM | Permalink


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What would correct the situation? Hmmm, if only kids on college campuses would smoke more crack, the powder-crack disparity would disappear in a second.

Posted by: David in NY | May 21, 2009 3:04:11 PM

Professor: I'm glad to see from this post that you're coming around to the idea that rejecting parity and retroactivity isn't the same as embracing 100:1.

But it's still ironic to see crack sentencing critics sieze upon the lack of empirical underpinnings to the 100:1 ratio and in the same breath embrace parity and retroactivity which are equally naked in their lack of data support.

Posted by: CrackFacts | May 21, 2009 5:06:31 PM

While "National District Attorneys Association" is a plenty impressive title, does one not notice that District Attorney's do not prosecute under the Federal Sentencing Guidelines? Could we perhaps pass a "No DA Left Behind" Law and find out what percentage of DA's could pass a standardized test regarding federal guidelines? Probably a little higher than the Dallas Cowboy cheerleaders (Post Michael Irvin).

You know who could pass that test? Justice Department Attorneys. So here's hoping the Department's position is afforded more significance than other prosecutors.

Posted by: Matt | May 21, 2009 5:51:14 PM


I do not think I have ever suggested that "rejecting parity and retroactivity is the same as embracing 100:1." Rather, I have asserted repeatedly --- based on the fine work of the USSC, which has access to a lot more data than you or me --- that 100:1 is bad policy. Based also on the USSC's 1995 report and DOJ's current views, I also tend to think 1:1 is the most sensible alternative, though I readily acknowledge that folks can reasonably assert that another ratio would be better policy.

Moreover, even if the goal was to set the ratio at 1:1, that could be achieved by RAISING the sentences for powder cocaine. It is unclear whether you, CrackFacts, would oppose parity under those circumstances.

Finally, none of these approaches are "naked" in terms of data. We have lots and lots of data that allow us to make reasonable (but not perfect) predictions of what will flow from various approaches. And, especially on the retroactivity front, we have the nearly 15 months experience with the retroactive reduced crack guidelines. So, again, I hope you will focus on the facts, CrackFacts, rather than just be aggravated by what you fear is being said or suggested by others.

Posted by: Doug B. | May 21, 2009 5:55:04 PM

I reject parity because the trafficking of crack and the trafficking of cocaine doesn't encompass the same conduct by the same type of offenders (i.e. CHC) even if the chemical makeup of the product is similar. I think I've been pretty clear about that and provided my statistical reasoning for it.

Posted by: CrackFacts | May 21, 2009 6:21:49 PM

Pre Law Student: To me if seems that no one did any fact findings. Had there been some fact findings long time ago, we wouldn't be in this situation. I am all for them lowering the ratio to 1:1 and apply it retroactively. However, it they are going to raise it, then it needs to be retroactively also. Are they going to raise the people serving time on powder charges? It's a wonder why the criminal justice system is a joke. There isn't any fairness in this law and the way the prosecution stack charges for certain people is ridiculous. The DA has more power than the judges, so why even have a judge? The way they are trying to rationalize the difference in the two drugs is still a joke. Cocaine is cocaine no matter what form it is in. The laws aren't affecting any "kingpins", if it were, then the prison would not be filled with low-level street dealers. I would love to hear about one kingpin that has gotten 25 years without the charges being stacked. You don't hear about those, because its easy for them to catch the little fish.

Posted by: Jubria | May 21, 2009 8:20:27 PM

Jubria: Cocaine may be cocaine in whatever form (some would disagree - but fine), but the crack offender is empirically different. The average crack offender has a serious criminal history and is twice as likely to have used a firearm in the commission of his offense. The drugs that they traffic may be very similar, but the conduct is very different. A mule caught backpacking powder across the desert with no gun and no criminal history is engaging in conduct that is much different from the pistol-packing thug terrorizing an urban street corner where families live.

Must it be reduced to a soundbite so you'll get it?


Posted by: CrackFacts | May 22, 2009 8:54:16 AM

So punish the CONDUCT, not the PRODUCT differently, CrackFacts. All of your points continue to essentially reinforce what the USSC said way back in 1995 --- namely that we can/should use other means to punish more serious traffickers, and the 100:1 is bad policy because it bases punishment on the PRODUCT, not the CONDUCT.

Are you genuinely fearful that going to 1:1 parity will prevent federal prosecutors and judges from seeking to punish harshly the pistol-packing thug terrorizing an urban street corner? I have faith that out federal prosecutors and judges will punish these types of criminals harshly, and that's why the significant symbolism of 100:1 versus 1:1 may matter more than anything else when it comes to the broader debate.

Posted by: truth shall set you free | May 22, 2009 9:06:40 AM

To Jubria - while I assume you're just engaging in hyperbole, there is a little thing called the "ex post facto" clause that prohibits raising sentences retroactively. To Matt - while the DA's Ass'n. does not practice in federal court, there are MANY fed/state, fed/county task forces, where feds and locals work hand in hand. Whether accurate or not, the DA's like having the club of heavy sentencing to wave over a crack arrestee's head to obtain cooperation, whether it results in the arrestee either reciving a lower federal sentence for substantial assistance, or being prosecuted on the state, as opposed to federal charges. So, they do have some stake in the matter.

Posted by: anon | May 22, 2009 9:42:10 AM

Crack Facts approach typifies what is a current and continuing problem in Federal sentencing after Booker. When you incorporate "associated conduct" like gun toting and criminal history into a guideline implicitly, it is not like the sentencing judge will ignore those factors because they are already taken into account. The Judge will calculate a guideline (which implicitly incorporates criminal history) and then is very likely to give a person with the very criminal history that "justified" that harsher guideline range the top of the range or even go over it.

Posted by: KRG | May 22, 2009 11:34:46 AM

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