Comments on Current Events In Criminal Law from the Federal Criminal Courts in Texas

December 24. 2007

SUPREME COURT CRACKS BARRIER ON CRACK SENTENCING

Houston Criminal Defense Attorney John T. Floyd Discusses Significant Developments Effecting Crack Cocaine Sentences from U.S. Supreme Court and U.S. Sentencing Commission

The United States Supreme Court on December 10, 2007 issued a ruling in a case that will effectively reduce some of the crack cocaine sentences for nearly twenty thousand federal inmates – 85 percent of them African-American. See: Kimbrough v. United States, No. 06-6330 (2007). The following day the U.S. Sentencing Commission voted to allow these inmates to immediately apply for sentence reductions. Slightly more than 2500 of them will be eligible for early release over the next year.

Two of those inmates are the well-publicized brothers Lamont and Lawrence Garrison who were arrested in 1998 just months after graduating from Howard University. Lamont received 19 years and Lawrence received 15 years after being convicted of conspiring to distribute crack and powder cocaine. Both brothers could receive sentence reductions of between three and four years.

“We can get back to doing the things we used to do,” said Karen Garrison, the mother of Lamont and Lawrence, who has waged a tireless battle for justice for her two sons. “I can just plan some kind of life [now].”

Family Justice, an advocacy group, praised the ruling, saying it will bring together African-American families torn apart by long prison terms.

“We know that people in poor neighborhoods, people of color have really borne the brunt of our drug policies,” said Carole Shapiro, executive director of the advocacy group.

The Supreme Court ruling and the Sentencing Commission vote could bring about the early release of 40 of the 342 persons convicted crack cocaine offenses in the Southern District of Texas. An additional 200 could be released over the next five years.

Assistant U.S. Attorney Don DeGabrielle was not pleased by this prospect, saying the Supreme Court decision will put violent people back on the streets in the Southern District too early.

“We thought it would unduly release what were considered to be violent criminals sooner than they should have been,” DeGabrielle said, referring to the opposition by the U.S. Justice Department in the Kimbrough case. “They are usually dealers of crack, not just people with a few rocks in their pockets. We do very few purely possession-of-crack cases.”

While DeGabrielle’s assessment may be accurate for the Southern District of Texas, it does not reflect the larger realities of the crack cocaine sentencing issue nationwide. In 2000 only one in five crack cocaine offenders satisfied the statutory criteria of being a “major” or “serious” trafficker. That year 73 percent of the crack cocaine offenders were “street level” dealers or users while another 21 percent were “mid-level” importers, suppliers or managers. Only 6 percent should be classified as the “highest-level” offenders. See: U.S. Sentencing Comm’n, Report to Congress: Cocaine and Federal Sentencing Policy 63 (2002).

The Supreme Court in reality was forced to act. The U.S. Sentencing Commission has repeatedly sent reports to Congress urging lawmakers to address the inequities spawned by 100-1 differential treatment of crack cocaine and powder cocaine sentencing. Congress refused to act on the issue. The Supreme Court set out the history of this differential as follows:

“The crack/powder disparity originated in the Anti-Drug Abuse Act of 1986 (1986 Act), 100 Stat. 3207. The 1986 Act created a two-tiered scheme of five- and ten-year mandatory minimum sentences for drug manufacturing and distribution offenses. Congress sought ‘to link the ten-year mandatory minimum trafficking prison term to major drug dealers and to link the five-year minimum term to serious traffickers.’ The 1986 Act uses the weight of the drugs involved in the offense as the sole proxy to identify ‘major’ and ‘serious’ dealers. For example, any defendant responsible for 100 grams of heroin is subject to the five-year mandatory minimum, see 21 U. S. C. §841(b)(1)(B)(i) (2000 ed. and Supp V), and any defendant responsible for 1,000 grams of heroin is subject to the ten-year mandatory minimum, see §841(b)(1)(A)(i).

“Crack cocaine was a relatively new drug when the 1986 Act was signed into law, but it was already a matter of great public concern: ‘Drug abuse in general, and crack cocaine in particular, had become in public opinion and in members' minds a problem of overwhelming dimensions.’ Congress apparently believed that crack was significantly more dangerous than powder cocaine in that: (1) crack was highly addictive; (2) crack users and dealers were more likely to be violent than users and dealers of other drugs; (3) crack was more harmful to users than powder, particularly for children who had been exposed by their mothers' drug use during pregnancy; (4) crack use was especially prevalent among teenagers; and (5) crack's potency and low cost were making it increasingly popular.

“Based on these assumptions, the 1986 Act adopted a ‘100-to-1 ratio’ that treated every gram of crack cocaine as the equivalent of 100 grams of powder cocaine. The Act's five-year mandatory minimum applies to any defendant accountable for 5 grams of crack or 500 grams of powder, 21 U. S. C. §841(b)(1)(B)(ii), (iii); its ten-year mandatory minimum applies to any defendant accountable for 50 grams of crack or 5,000 grams of powder, §841(b)(1)(A)(ii), (iii).” [Internal citations referencing Sentencing Comm’n reports omitted].

This statutory differential immediately created horrific sentencing disparities. Based on a gram-by-gram scale, low-level crack dealers are punished 300 times more harshly than high-level powder cocaine traffickers, and serve more time than any other drug offender in the federal prison system (an average of 120 months). See: Sterling, Eric E., Getting Justice Off Its Junk Food Diet, White Paper (July 17, 2006); U.S. Sentencing Comm’n, Sourcebook of Federal Sentencing Statistics, Fig. L (2006).

The U.S. Justice Department effectively endorsed this grossly unjust sentencing practice with its arguments to the Supreme Court. The government argued that the 1986 Act prohibits both the Sentencing Commission and the sentencing courts from departing from the 100:1 ratio. While the government conceded that Congress did not explicitly direct the Sentencing Commission to incorporate the 100:1 ratio in its Sentencing Guidelines, the government reasoned that the Act “implicitly” requires the commission and sentencing courts to apply the 100:1 ratio.

“This argument encounters a formidable obstacle,” the Supreme Court said. “It lacks grounding in the text of the 1986 Act. The statute, by its terms, mandates only maximum and minimum sentences: A person convicted of possession with intent to distribute 5 grams or more of crack cocaine must be sentenced to a minimum of 5 years and the maximum term is 40 years. A person with 50 grams or more of crack cocaine must be sentenced to a minimum of 10 years and the maximum term is life. The statute says nothing about the appropriate sentences within these brackets, and we decline to read any implicit directive into that congressional silence. See Jama v. Immigration and Customs Enforcement, 543 U. S. 335, 341 (2005) (‘We do not lightly assume that Congress has omitted from its adopted text requirements that it nonetheless intends to apply ... .’). Drawing meaning from silence is particularly inappropriate here, for Congress has shown that it knows how to direct sentencing practices in express terms. For example, Congress has specifically required the Sentencing Commission to set Guidelines sentences for serious recidivist offenders ‘at or near’ the statutory maximum. 28 U. S. C. §994(h). See also §994(i) (‘The Commission shall assure that the guidelines specify a sentence to a substantial term of imprisonment’ for specified categories of offenders.).

“Our cautious reading of the 1986 Act draws force from Neal v. United States, 516 U. S. 284 (1996). That case involved different methods of calculating lysergic acid diethylamide (LSD) weights, one applicable in determining statutory minimum sentences, the other controlling the calculation of Guidelines ranges. The 1986 Act sets mandatory minimum sentences based on the weight of ‘a mixture or substance containing a detectable amount’ of LSD. 21 U. S. C. §841(b)(1)(A)(v), (B)(v). Prior to Neal, we had interpreted that language to include the weight of the carrier medium (usually blotter paper) on which LSD is absorbed even though the carrier is usually far heavier than the LSD itself. See Chapman v. United States, 500 U. S. 453, 468 (1991). Until 1993, the Sentencing Commission had interpreted the relevant Guidelines in the same way. That year, however, the Commission changed its approach and ‘instructed courts to give each dose of LSD on a carrier medium a constructive or presumed weight of 0.4 milligrams.’ Neal, 516 U. S., at 287 (citing USSG §2D1.1(c), n. (H) (Nov. 1995)). The Commission's change significantly lowered the Guidelines range applicable to most LSD offenses, but defendants remained subject to higher statutory minimum sentences based on the combined weight of the pure drug and its carrier medium. The defendant in Neal argued that the revised Guidelines and the statute should be interpreted consistently and that the ‘presumptive-weight method of the Guidelines should also control the mandatory minimum calculation.’ 516 U. S., at 287. We rejected that argument, emphasizing that the Commission had not purported to interpret the statute and could not in any event overrule our decision in Chapman. See 516 U. S., at 293-295.

“If the Government's current position were correct, then the Guidelines involved in Neal would be in serious jeopardy. We have just recounted the reasons alleged to justify reading into the 1986 Act an implicit command to the Commission and sentencing courts to apply the 100-to-1 ratio to all quantities of crack cocaine. Those same reasons could be urged in support of an argument that the 1986 Act requires the Commission to include the full weight of the carrier medium in calculating the weight of LSD for Guidelines purposes. Yet our opinion in Neal never questioned the validity of the altered Guidelines. To the contrary, we stated: ‘Entrusted within its sphere to make policy judgments, the Commission may abandon its old methods in favor of what it has deemed a more desirable 'approach' to calculating LSD quantities.’ Id., at 295. If the 1986 Act does not require the Commission to adhere to the Act's method for determining LSD weights, it does not require the Commission--or, after Booker, sentencing courts--to adhere to the 100-to-1 ratio for crack cocaine quantities other than those that trigger the statutory mandatory minimum sentences.” Id.

The government next argued that Congress rejected a 1995 recommendation by the Sentencing Commission that there be a 1:1 ratio in crack/powder cocaine cases. The government pointed out that Congress instructed the Sentencing Commission that the 1986 Act required the commission and sentencing courts to consider drug quantities in a manner that respects the 100:1 ratio. The Court responded to this argument:

“It is true that Congress rejected the Commission's 1995 proposal to place a 1-to-1 ratio in the Guidelines, and that Congress also expressed the view that ‘the sentence imposed for trafficking in a quantity of crack cocaine should generally exceed the sentence imposed for trafficking in a like quantity of powder cocaine.’ Pub. L. 104-38, §2(a)(1)(A), 109 Stat. 334. But nothing in Congress' 1995 reaction to the Commission-proposed 1-to-1 ratio suggested that crack sentences must exceed powder sentences by a ratio of 100 to 1. To the contrary, Congress' 1995 action required the Commission to recommend a ‘revision of the drug quantity ratio of crack cocaine to powder cocaine.’ §2(a)(2), id., at 335.

“The Government emphasizes that Congress required the Commission to propose changes to the 100-to-1 ratio in both the 1986 Act and the Guidelines. This requirement, the Government contends, implicitly foreclosed any deviation from the 100-to-1 ratio in the Guidelines (or by sentencing courts) in the absence of a corresponding change in the statute. See Brief for United States 35-36. But it does not follow as the night follows the day that, by calling for recommendations to change the statute, Congress meant to bar any Guidelines alteration in advance of congressional action. The more likely reading is that Congress sought proposals to amend both the statute and the Guidelines because the Commission's criticisms of the 100-to-1 ratio, see Part II-B, supra, concerned the exorbitance of the crack/powder disparity in both contexts.
“Moreover, as a result of the 2007 amendment, see supra, at 10-11, the Guidelines now advance a crack/powder ratio that varies (at different offense levels) between 25 to 1 and 80 to 1. See Amendments to the Sentencing Guidelines for United States Courts, 72 Fed. Reg. 28571-28572. Adopting the Government's analysis, the amended Guidelines would conflict with Congress' 1995 action, and with the 1986 Act, because the current Guidelines ratios deviate from the 100-to-1 statutory ratio. Congress, however, did not disapprove or modify the Commission-initiated 2007 amendment. Ordinarily, we resist reading congressional intent into congressional inaction. See Bob Jones Univ. v. United States, 461 U. S. 574, 600 (1983). But in this case, Congress failed to act on a proposed amendment to the Guidelines in a high-profile area in which it had previously exercised its disapproval authority under 28 U. S. C. §994(p). If nothing else, this tacit acceptance of the 2007 amendment undermines the Government's position, which is itself based on implications drawn from congressional silence.” Id.

The government then pressed its final argument: if the sentencing courts are permitted the discretion to depart from the Sentencing Guidelines based on disagreement with the 100:1 ratio, two kinds of disparities will ensue. First, since the sentencing courts are bound by the 1986 Act’s mandatory minimum sentences, departures from the crack/powder ratio would produce sentencing “cliffs” around those quantities that mandate mandatory minimums. Second, if the sentencing courts are allowed discretion departure pursuant to 18 U.S.C. § 3553, defendants involved in identical conduct would receive markedly different sentences depending upon the sentencing judges. Id.

The Court did not find either argument persuasive:

“Neither of these arguments persuades us to hold the crack/powder ratio untouchable by sentencing courts. As to the first, the LSD Guidelines we approved in Neal create a similar risk of sentencing ‘cliffs.’ An offender who possesses LSD on a carrier medium weighing ten grams is subject to the ten-year mandatory minimum, see 21 U. S. C. §841(b)(1)(A)(v), but an offender whose carrier medium weighs slightly less may receive a considerably lower sentence based on the Guidelines' presumptive-weight methodology. Concerning the second disparity, it is unquestioned that uniformity remains an important goal of sentencing. As we explained in Booker, however, advisory Guidelines combined with appellate review for reasonableness and ongoing revision of the Guidelines in response to sentencing practices will help to ‘avoid excessive sentencing disparities.’ 543 U. S., at 264. These measures will not eliminate variations between district courts, but our opinion in Booker recognized that some departures from uniformity were a necessary cost of the remedy we adopted. See id., at 263 (‘We cannot and do not claim that use of a 'reasonableness' standard will provide the uniformity that Congress originally sought to secure [through mandatory Guidelines].’). And as to crack cocaine sentences in particular, we note a congressional control on disparities: possible variations among district courts are constrained by the mandatory minimums Congress prescribed in the 1986 Act.

“Moreover, to the extent that the Government correctly identifies risks of ‘unwarranted sentence disparities’ within the meaning of 18 U. S. C. §3353(a)(6), the proper solution is not to treat the crack/powder ratio as mandatory. Section 3553(a)(6) directs district courts to consider the need to avoid unwarranted disparities--along with other §3553(a) factors--when imposing sentences. Under this instruction, district courts must take account of sentencing practices in other courts and the ‘cliffs’ resulting from the statutory mandatory minimum sentences. To reach an appropriate sentence, these disparities must be weighed against the other §3553(a) factors and any unwarranted disparity created by the crack/powder ratio itself.” Id.

Kimbrough is the fourth in a line of significant cases by the Supreme Court interpreting the U.S. Sentencing Guidelines. In 2005 the court in Booker held that the Guidelines are advisory, not mandatory. See: United States v. Booker, 543 U.S. 220, 245 (2005). Last year in Rita v. United States, 125 S.Ct. 2456 (2007) and again this year in Gall v. United States, No. 06-7949 (Dec. 10, 2007) the court qualified Booker by holding that while the Guidelines are advisory, they are nonetheless the “starting point and the initial benchmark” in determining the appropriate sentence. The court pointed out that Kimbrough is consistent with both Rita and Gall:
“We have accordingly recognized that, in the ordinary case, the Commission's recommendation of a sentencing range will ‘reflect a rough approximation of sentences that might achieve §3553(a)'s objectives.’ Rita, 551 U. S., at ___ (slip op., at 11). The sentencing judge, on the other hand, has ‘greater familiarity with ... the individual case and the individual defendant before him than the Commission or the appeals court.’ Id., at ___ (slip op., at 18). He is therefore ‘in a superior position to find facts and judge their import under §3353(a)’ in each particular case. Gall, ante, at 13 (internal quotation marks omitted). In light of these discrete institutional strengths, a district court's decision to vary from the advisory Guidelines may attract greatest respect when the sentencing judge finds a particular case ‘outside the 'heartland' to which the Commission intends individual Guidelines to apply.’ Rita, 551 U. S., at ___ (slip op., at 12). On the other hand, while the Guidelines are no longer binding, closer review may be in order when the sentencing judge varies from the Guidelines based solely on the judge's view that the Guidelines range ‘fails properly to reflect §3553(a) considerations’ even in a mine-run case.

“The crack cocaine Guidelines, however, present no occasion for elaborative discussion of this matter because those Guidelines do not exemplify the Commission's exercise of its characteristic institutional role. In formulating Guidelines ranges for crack cocaine offenses, as we earlier noted, the Commission looked to the mandatory minimum sentences set in the 1986 Act, and did not take account of ‘empirical data and national experience.’ Indeed, the Commission itself has reported that the crack/powder disparity produces disproportionately harsh sanctions, i.e., sentences for crack cocaine offenses ‘greater than necessary’ in light of the purposes of sentencing set forth in §3553(a). Given all this, it would not be an abuse of discretion for a district court to conclude when sentencing a particular defendant that the crack/powder disparity yields a sentence ‘greater than necessary’ to achieve §3553(a)'s purposes, even in a mine-run case.” Id., (Internal citations omitted].

Kimbrough is important not only because of its legal significance but because it will serve to some degree to restore faith in the judicial system by the African-American community. Unquestionably, African-American offenders suffered far more grievously under the 100:1 ratio than Caucasian offenders convicted for powder cocaine-related offenses. The population of the nation’s penal system is more than 2 million prisoners, and is disproportionately African-American. The empirical proof is compelling: 85 percent of the nearly 20,000 crack cocaine federal inmates are African-American while African-Americans comprise less than 15 percent of the nation’s general population.

This staggering disparity does not inspire confidence in the racial fairness of the nation’s judicial system. That’s why in 1997 twenty-seven federal judges, all of whom had been U.S. Attorneys, addressed a letter to the U.S. Senate and House Judiciary Committees stating that “[i]t is our strongly held view that the current disparity between powder cocaine and crack cocaine, in … the guidelines can not be justified and results in sentences that are unjust and do not serve society’s interest.” See: Letter from John S. Martin, Jr. to Senator Orin Hatch, Chairman of the Senate Judiciary Committee, and Congressman Henry Hyde, Chairman of the House Judiciary Committee (Sept. 16, 1997), reprinted in 10 Fed.Sent’g Rep. 195 (1998).

NOTE: For additional information about the crack/powder cocaine issue, see the column entitled “Supreme Court to Decide 100;1 Crack/Powder Cocaine Radio” published on October 17, 2007 on this website.