Crack sentences face new scrutiny in federal courts
3/31/06
Since the landmark Booker decision that gave federal judges increased sentencing discretion, some judges have imposed sentences in crack cocaine cases that fall well below the recommended guideline sentence.
A January report by the Sentencing Project, “Sentencing with Discretion: Crack Cocaine Sentencing After Booker,” analyzes 24 federal cases involving crack cocaine offenses in which the court issued sentences below the recommended guideline range.
The report found one of the main issues the courts are confronting is how much influence the guidelines’ recommended sentence should have. The Supreme Court’s decision in Booker is silent on this issue; it only instructs lower courts to “take account of the guidelines together with other sentencing goals.”
Many district courts have opted to weigh the guidelines equally with other sentencing factors, such as the goals of punishment, circumstances of the offense and the likelihood of rehabilitation. For example, the court in Simon v. U.S., 361 F.Supp.2d 35 (E.D. N.Y. 2005) reasoned that to give the guidelines more weight would draw the court closer “to committing the act that Booker forbids,” by instituting “a de facto mandatory sentence.” The court held that Simon’s guideline range of 324-405 months was too severe and sentenced the defendant to 262 months (21 years and 10 months).
A number of courts in the report concluded that the recommended guideline ranges produced sentences in individual cases that would have been grossly disproportionate to the sentencing goals of in 18 U.S.C. § 3553(a)(2)(A-D), that sentences by “sufficient but not greater than necessary.” Before Booker, courts had no choice but toapply the guideline range. Booker removed the language that made the guideline range mandatory but left the other factors. The report finds some courts are reexamining the guideline range in light of the goals of sentencing.
In U.S. v. Perry, 389 F.Supp.2d 278 (D.R.I. 2005), U.S. District Judge William E. Smith -- appointed by President George W. Bush – sentenced Perry to the mandatory minimum of 120 months (10 years). Judge Smith held that the 100:1 ratio between powder and crack cocaine produced a guideline range (188 to 235 months) that “cannot stand up to the scrutiny of analysis under 18 U.S.C. § 3553,” and “is substantially greater than is necessary to reflect the seriousness of the offense, to promote respect for the law, and to provide adequate general and specific deterrence.” Instead, the court would have chosen a sentence using a ratio of 20:1, but it was still forced to issue a mandatory minimum sentence of 10 years for the charge of distributing crack cocaine within 1,000 feet of a school. The government has appealed this decision.
Also gaining new relevance is the § 3553(a)(1) provision that the court consider “the nature and circumstances of the offense and the history and characteristics of the defendant …” FAMM and other sentencing reform organizations have long decried the inability of the guideline scheme to adequately incorporate these considerations.
In U.S. v. Nellum, 2005 U.S. Dist. LEXIS 1568 (N.D. Ind. 2005), the court considered the defendant’s record as an Army veteran, his long period of drug-and crime-free activity, his medical history, and his history of addiction. The court also contemplated the defendant’s age (57 years) with respect to his likelihood to re-offend. “Under the guidelines, the age of the offender is not ordinarily relevant in determining the sentence. But under § 3553(a)(2)(c), age of the offender is plainly relevant to the issue of ‘protect[ing] the public from further crimes of the defendant.’” As a result, the court sentenced the defendant to 108 months (nine years) as opposed to the recommended guideline range of 168-210 months. (Appeal was dismissed by motion of the U.S. attorney.)
Finally, the report concluded most judges considering crack guideline departures are relying on the sentencing commission’s previous calls for revising the 100:1 ratio between crack and powder cocaine. It takes just 1/100th the amount of crack cocaine to receive the same sentence as for powder cocaine: a mere five grams of crack triggers a five-year guideline sentence (and mandatory minimum sentence) while 500 grams of powder triggers the same sentence.
In U.S. v. Smith, 359 F.Supp.2d 771 (E.D. Wisc. 2005) U.S. District Judge Lynn Adelman expansively scrutinized the history and relevance of the 100:1 ratio, citing commission testimony and studies, and found the ratio lacked justification. He 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.” Considering the commission’s recommended 20:1 ratio along with other sentencing factors and a substantial assistance departure, Judge Adelman issued a term of 18 months, significantly lower than the recommended guideline range of 121-151 months. (Appeal dismissed on motion of the U.S. Attorney).
For a copy of the Sentencing Project’s report, contact The Sentencing Project, 514 10th St. N.W., Suite 1000, Washington, DC 20004 (202) 628-0871, www.sentencingproject.org