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July 28, 2010

House of Representatives seems poised to finally pass federal crack/powder disparity reform bill

As detailed in this new AP article, which is headlined "Congress seeks to narrow gap in cocaine sentences," it appears that the House of Representatives is today going to approve the compromise crack sentencing reform bill that made it though the Senate back in March. Here are the basics:

The House planned to vote Wednesday on the measure that would change the 1986 law under which a person convicted of crack cocaine possession gets the same mandatory prison term as someone with 100 times the same amount of powder cocaine.  The legislation would reduce that ratio to about 18-1.

The Senate has passed the legislation. House approval would send it to President Barack Obama.  "There is no law enforcement or sentencing rationale for the current disparity between crack and cocaine powder offenses," Attorney General Eric Holder said when the Senate acted in March....

Under current law, possession of 5 grams of crack triggers a mandatory minimum five-year prison sentence.  The same mandatory sentence applies to a person convicted of trafficking 500 grams of powder cocaine.  The proposed legislation would apply the five-year term to someone with 28 grams, or an ounce, of crack.  It would be the first time in 40 years that Congress has repealed a mandatory minimum sentence.

All reports suggest that President Obama would sign this compromise bill, and I assume he would do so ASAP. 

The exact timing of this bill becoming law is important for lots or reasons, especially because I believe the bill gives the US Sentencing Commission only 90 days to develop needed guideline amendments in response to the law.  That, in turn, means the USSC may have to, before the end of October, significantly rewrite a significant portion of the current drug sentencing guidelines.  And that, in turn, means everyone (and their lawyers) with current or pending federal drug offense sentences will have a lot more to be watching over the next few months than just the baseball pennant races.

Some recent related posts:

UPDATE: It is official, as detailed in this new AP article on the House vote today:

The House, by voice vote, approved a bill reducing the disparities between mandatory crack and powder cocaine sentences, sending the measure to President Barack Obama for his signature. During his presidential campaign, Obama said that the wide gap in sentencing "cannot be justified and should be eliminated." The Senate passed the bill in March....

"For Congress to take a step toward saying 'we have made a mistake' and this sentence is too severe ... is really remarkable," said Virginia Sloan, president of the Constitution Project, which in studies of sentencing practices has referred to crack cocaine mandates as a "'poster child' for the injustices of mandatory sentencing." Under current law, possession of five grams of crack triggers a mandatory minimum five-year prison sentence. The same mandatory sentence applies to a person convicted of trafficking 500 grams of powder cocaine....

The Congressional Budget Office said the bill would save the government $42 million over five years because of the reduction in prison populations.

Rep. Lamar Smith of Texas, the top Republican on the Judiciary Committee, was the only lawmaker to speak against the bill, saying the 1986 law was enacted at a time when the crack cocaine epidemic was bringing a sharp spike in violence to minority communities and it would be a mistake to change it. "Why do we want to risk another surge of addiction and violence by reducing penalties?" he asked. "Why are we coddling some of the most dangerous drug traffickers in America?"

Rep. Bobby Scott, D-Va., noted that the bill also requires the sentencing commission to significantly increase penalties for drug violations involving violence. "This way the defendant is sentenced for what he or she actually did, not the form of cocaine involved," Scott said.

July 28, 2010 at 12:54 PM | Permalink


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Criminal defense lawyer

While I fervently hope that the House will adopt the provisions of S. 1789 today, it is hard to imagine a newly enacted statute more susceptible to constitutional challenge than one that codifies an 18:1 punishment ratio for crack cocaine versus powder cocaine. Given the pronouncements by DOJ, the Sentencing Commission, the scientific community, and scores of other groups and organizations that there is no rational basis for differentiating in punishment between crack and powder cocaine, a punishment ratio of 18:1 is as illogical and irrational as a punishment ratio of 100:1.

Posted by: Gary G. Becker | Jul 28, 2010 1:21:57 PM

One important question is whether any crack Guideline reduction made in response to this legislaion will be retroactive. I hope and somewhat expect that it will be. Given that we've already had one round of crack Guideline reductions (which went quite smoothly), the second round should be that much more easier concerning "who" and "how much." Anyone who qualified before would qualify again, and since Dillon has been definitely decided arguments over how much should be minimized.

Posted by: DEJ | Jul 28, 2010 1:37:26 PM

I think the general thought is that it will not be retroactive, at least not under the current language of the bill. However, is it another question as to whether the USSC make any guideline retroactive?
Also, I think the Court of Appeals is unlikely to say there is an Equal Protection or Due Process violation. As far as I know, no one has been able to get them to touch the 100 to 1 ratio even though there have been statements regarding arbitrariness for quite some time.

Posted by: Tim Holloway | Jul 28, 2010 2:10:01 PM

According to the Sentencing Project, the House just passed the bill, which now only awaits Obama's signature.

Posted by: DEJ | Jul 28, 2010 2:23:53 PM

As I'm beginning to recall the discussion surrounding the Senate bill months-back, I just remembered the bill also has the possibility to increase some sentences based upon new enhancements. In that case, I doubt any guideline change to the base offense level would be retroactive, since the amendment is also accompanied with increases.

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