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June 10, 2009

Another district judge adopts 1-to-1 crack/powder sentencing plan

In this post last month, I reported on the thoughtful opinion in US v. Gully, No. CR 08-3005-MWB (N.D. Iowa May 18, 2009), Judge Mark Bennett explaining why  he adopted a 1:1 ratio for crack sentencing cases.  Thanks to a helpful reader, I can now post another thoughtful district court opinion, this one from Judge Paul Friedman of the U.S. District Court for the District of Columbia, that also mebraces a 1-to-1 crack-to-powder ratio.  The opinion in US v. Lewis, No. 04-0430 (D.D.C. June 9, 2009), can be downloaded below, and here is the key part of Judge Friedman's explanation for his sentencing plans:

For all of these reasons, this Court disagrees, as a matter of policy, with both the amended 100-to-1 crack-to-powder ratio currently embodied in the Sentencing Guidelines and the 20-to-1 ratio the Sentencing Commission more recently endorsed for practical political reasons.  The Court instead concludes that the appropriate ratio is 1-to-1.  Thus, in the future, this Court will apply the 1-to-1 ratio in all crack cocaine cases and then will separately consider all aggravating factors applicable in any individual case, such as violence, injury, recidivism or possession or use of weapons.

Henceforth this Court will employ a three-step approach – or where mandatory minimum sentences are implicated, a four-step approach – to sentencing in crack cocaine cases.  First, it will calculate the sentencing range under the existing Sentencing Guidelines (i.e., it will use the amended 100-to-1 ratio found in the Guidelines and then factor in any appropriate adjustments or departures contained within the Guidelines).  Second, it will calculate an alternative sentencing range using a 1-to-1 ratio (by using the powder cocaine Guidelines) and then factor in any appropriate adjustments or departures contained within the Guidelines.  Third, it will consider whether it is appropriate to vary from the alternative 1-to-1 sentencing range based on the Court’s consideration of the relevant factors set forth in 18 U.S.C. § 3553(a) as they apply to the individual defendant and the particular case – including, but of course not limited to, any aggravating factors such as violence, injury, recidivism or possession or use of weapons.  See United States v. Gully, 2009 WL 1370898 at *9.  While theoretically this could lead to a downward variance, in view of the Court’s approach it would more likely lead to an upward variance in an individual case to take account of the defendant’s history of violence, the use of violence in a particular case, injury to others, the presence or use of firearms or other weapons, or the defendant’s recidivism.  As a fourth and final step, the Court will of course implement any statutory mandatory minimums applicable to the case – even though the statutory mandatory minimums themselves embody the now-discredited 100-to-1 ratio between crack and powder cocaine offenses.

Download Lewis on crack

UPDATE:  I now see that The BLT has this coverage of the Lewis opinon

June 10, 2009 at 08:39 AM | Permalink


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So, the ratio is 1-to-1 if the defendant draws a judge who believes that is the correct policy, or it could be 100-to-1 if he draws a judge who still believes that was correct.

Step right up, spin the wheel, and take your chances in the sentencing lottery.

Congress, get off your butt and fix this.

Posted by: Kent Scheidegger | Jun 10, 2009 11:11:03 AM

Interesting. (1) as Mr. Scheidegger points out, in many ways the courts are resurrecting the problems the Guidelines were intended to solve (though, admittedly the courts are allowed to do this after Spears and Kimbrough). (2) most of the bolder opinions rejecting the 100:1 ratio still result in pretty stiff sentences--this guy gets nearly 13 years in prison.

Posted by: anonymous | Jun 10, 2009 12:22:35 PM

As Kent correctly notes, this is lottery justice. Only lottery justice ain't justice at all.

Either we have a law of sentencing or we have this luck-of-the-draw, gruesomely arbitrary travesty. Take your pick.

Posted by: Bill Otis | Jun 10, 2009 3:58:52 PM

I pick a flip of a coin and a good argument over the circular rationale and justification of the guidelines by the sentencing commission. I'd prefer to appeal to a judge's reasoning than her ability to consult a grid.

Posted by: -- | Jun 10, 2009 5:32:09 PM

I'd be happy to have mandatory guidelines, if only the facts driving their calculation had to be proven BRD and with evidentiary rules in play (the remedy rejected in the remedial portion of Booker). That would make both prosecution-oriented folks like Kent, and defense lawyers like me, happy. Kent would have his uniformity, and I would have protection against my clients' guidelines being ratcheted up based on unreliable evidence that a judge finds to be "probably" true.

Posted by: prairie dog | Jun 10, 2009 6:04:01 PM

An offense of conviction system solves the sentencing guidelines sixth amendment infirmities. I would much prefer to jettison the relevant conduct conduct provision to keep the guidelines mandatory and restore some semblance of the rule of law.

Posted by: mjs | Jun 11, 2009 12:36:51 PM


If we were to go to pure offense of conviction then every convict would get the maximally possible sentence because there would be no room to judge the offender. Every offender would end up getting treated as the worst possible scum rather than at least having their scuminess examined. Is that really the system you desire?

Posted by: Soronel Haetir | Jun 12, 2009 9:09:32 PM

i have a close friend in pennslvania fed prision with a crack charge an he is hoping an praying to get a good judge that believes in the law .the sad irony is till they pass it as a law these poor guys are gonna get more time when they spin the wheel...my niece wants her daddy back an i want my friend back if you ask me its entirely wrong to charge different ways when there is no additives to crack exact same as cocaine besides the form of it...come on an pass it already im not tryin to wait till 2015

Posted by: mooen francis | Aug 4, 2009 8:17:09 AM

Personally I do not understand how any Judge can put a person in prison for long periods of time due to the selling of illegal drugs. I think that the government allows this because they are not receiving profits off of these sales. Liquor is killing inncoent people everyday all over the world but since it is legal and the government has its hands involved, it is ok? It is costing tax payers more money to house these offenders than the amount they were making off the streets, they took all that they purchased with the drug money but that isnt enough we have to pay for the rest. Sorry but it does not make much sense to me.

Posted by: Blac or White | Aug 28, 2009 10:34:16 PM

I feel that drug laws are too stiff. You have sex offenders that gets a 5 year sentence and comes out and does the same thing over again. Killing another child's childhood but yet a drug dealer who sold drugs to someone gets 15-20 years. This is BS!
I am a college student!

Posted by: Laura | Nov 3, 2009 11:32:08 PM

I feel that this law should have been established and passed a long time ago considering the judges have been handing out life sentences to those dealin drugs and others basically walk away if they've murdered someone. Im not understanding this thing called LAW!! It is time for a change, help needs to be in placed for ones that will be getting let out so they will be able to get jobs and shelter for ones self. Everyone, I believe deserves a second chance at life.In God We Trust!!

Posted by: Rensation | Nov 4, 2009 1:58:46 AM

I think that the sentencing is too harsh for families, because people use poor judgements to sell drugs for whatever reasons, mainly because of financial situation to support family. I know it is against the law but thoses who judge them as stating it is okay to sentence them to multiple years in prison for such a crime, as selling drugs opposed to offenders that are sentenced to such a minium time for raping or murder. It is a severe problem. I believe that it need to be a change. I am a single mother of two, hard working, have been raising my children for 11 years because of their father being sentenced for selling drugs with a amount least than 500 grams. I think that it is not right the children and families around the world to have to suffer for such a crime. People do not realize how the econmy is, most people are not blessed to have a mother and a father in their homes or have the inheritance of homes and money left to them. That is the only way the average person lives comfortable. I have worked 4 jobs at one time to make our family through this hard times. It is time for a change. People do things not because they want to, but because they have too. I know my children father does not deserve this sentence, his parents died both at the age of 8 years old. Tell me what would you have done to make it through, just when he got where he could get a job to support his family they take him away. People can judge only if they are not in the situation.

Posted by: Red | Nov 6, 2009 9:36:19 AM

I am an educated woman that works in a University setting. I have a couple of friends that have been incarcerated in Federal Correctional Facilities for crack cocaine distribution. They were handed down life sentences for crimes that relied upon willing, adult participants. I am not saying that I condone illegal drug activities, but I find that this 100:1 ratio is extremely unfair and prejudicial. One point that I am not seeing addressed is that this law violates the 8th Amendment of our Constitution which protects against the Federal government "from imposing excessive bail, excessive fines or cruel and unusual punishments." Is it not cruel and unusual to impart a sentence of 100:1 over a drug that is the same? Crack is not comprised of any illegal substance additive aside from cocaine. Therefore, how can the sentencing be so different other than that the law is geared towards Blacks, Hispanics and the impoverished? By not changing the law to 1:1, this law is in violation of the very Constitution we challenge our children to have faith in. And where is the discrepancy regarding drugs that are killing people everyday such as meth, ecstasy and heroin?
Another problem I have in regards to this law is that there are worse offenders out there that are killing people and raping little children who receive lighter sentences. There was a recent case in Oklahoma about a repeat criminal named David Earls. He just got out of prison and moved in with a woman and her two small children, ages 4 and 5. He raped and sodomized both children, male and female. The judge in the case sentenced him to twenty years with one year in prison and nineteen to be suspended! Are you kidding me? He killed these children's innocence and possibly their ability to reproduce and he serves one year while my friend is serving a life sentence for selling drugs to a willing participant?
This country claims that justice is blind and fairly imparted, this is what we teach our children, but justice is not being served fairly with our disproportionate drug laws. Where is the democracy this country was founded on? It is evident by these laws that it is only fair and partial when you are not Black, Hispanic or poor.
I am not going to address the impact on the families as many others do. I feel that the offenders should have thought about that before committing their crimes. But I will say that civil rights are being violated with this law. What's more, the Bible says an eye for an eye. I pray for those that are in power positions who have allowed their greed and prejudice to deny other's the right to a fair sentence.

Posted by: ASC | Nov 25, 2009 11:50:36 AM

I am a ex-felon which was incarcerated 9 months ago in Federal Prison and seen no lenacy toward the crack law which was a guideline sentence but this 1to1 ratio is where it shows that laws are all the same there is no difference in crack and cocaine just one is pure drug and the other is cut with baking soda. The thing is this its about giving a person a second chance and some of my partners are locked up with alot of time and its their fist time getting in trouble so do let this pass and go in retroactive is showing some consideration toward giving peopl a second chance is where its at

Posted by: Joseph I Patterson III | Dec 1, 2009 8:42:23 PM

To whom this may concern i was indiated in lincoln nebraska and here its so bad all you have to do to get indiated is by someone else saying that your dealing drugs then we have a 97% conviction rate of losing if we go to tral and then we end up with 20 years or more so its like a lose lose situation. In other states in america you at least have to have a possession charge i just think that its crazy how you can do time in prison for nothing that they have proof of and then i had a job aet a time cut.t that i just dont think its right and this had been going on for years here its not rite just for someone else to get a time cut on their sentence. Thanks for reading

Posted by: Andajaun Divers | Apr 1, 2010 11:50:46 AM

I have 2sons in federal prisons. I know selling crack cocaine is wrong. I don't think spending 10 years in jail is going to help them be productive citizen in this society. My sons need rehabilitation not to spend the rest of their lives in jail.I pray for boys my very night.I was a single mom raising 4 children it was hard for them and me. I went back to college to try to keep myself busy so I won't think about my sons being incarcerated.

Posted by: Regina Thompson | Jul 19, 2010 11:05:32 AM

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