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Impact of the Fair Sentencing Act of 2010 United States Sentencing Commission Report to the Congress: Impact of the Fair Sentencing Act of 2010 United States Sentencing Commission Patti B. Saris Chair Charles R. Breyer Vice Chair Dabney L. Friedrich Commissioner Rachel E. Barkow Commissioner William H. Pryor, Jr. Commissioner Jonathan J. Wroblewski Ex Officio J. Patricia Wilson Smoot Ex Officio August 2015 Table of Contents SECTION ONE………………………………………………….……1 SECTION FOUR…………………….…………………...….………31 Executive Summary……………………………………………………3 Increased Fine Penalties for Major Drug Traffickers…32 Historical Background…………….…………………………………4 SECTION FIVE……………………….…………………...….…..….33 SECTION TWO……………………….…………………...….…..…9 Enhancements for Acts of Violence during the Course of a Drug Trafficking Offense …………….…………………...……34 Cocaine Sentencing Disparity Reduction……………...……10 Increased Emphasis on Defendant’s Role & Certain . What has been the impact of the FSA on federal Aggravating Factors …………….…………………...………….…34 prosecutorial practices? …………….……………….…………11 Increased Emphasis on Defendant’s Role & Certain . Are crack cocaine sentences more similar to powder Mitigating Factors …………….…………………...................……35 cocaine sentences? …………….……………….…………...……23 . What has been the impact of the FSA on the federal prison population? …………….……………….…………...……26 CONCLUSION …………….…………………..………………...……37 . Has there been an increase in use of crack cocaine after the FSA? …………….………………………….….…………...……27 Endnotes …………………….…………………..………………...……39 SECTION THREE……………………………………...….…....…29 Appendix ...………………….…………………..………………...……43 Elimination of Mandatory Minimum Sentence for Simple Possession ……...………….……………….…………...……30 i Section One Section One of this report highlights the Commission’s primary findings on the impact of the Fair Sentencing Act of 2010. This section also provides a historical overview of federal cocaine sentencing policy since 1985. Report to the Congress: Fair Sentencing Act of 2010 1 Report to the Congress: Fair Sentencing Act of 2010 2 Executive Summary The United States Sentencing Commission • they overstated the relative regarding the impact of the changes in Federal (“the Commission”) submits this report to harmfulness of crack cocaine compared sentencing law under this Act and the Congress in response to a congressional to powder cocaine; amendments made by this Act.”8 The report directive contained in section 10 of the Fair • they swept too broadly and applied generally follows the structure of the FSA, first Sentencing Act of 2010, Pub. L. No. 111–220, most often to lower level offenders; analyzing the FSA’s changes to crack cocaine 124 Stat. 2372 (“FSA”), and pursuant to the • they overstated the seriousness of most penalties, then turning to its changes to Commission’s general authority under 28 U.S.C. crack cocaine offenses and failed to penalties for federal drug trafficking offenses §§ 994-995. provide adequate proportionality; and more broadly. • their severity mostly impacted For more than twenty years, the minorities.3 The Commission’s study finds that the FSA reduced the disparity between crack and Commission has consistently worked with the As a result of these findings, the powder cocaine sentences, reduced the federal legislative, executive, and judicial branches of Commission recommended that Congress prison population, and appears to have government and other interested parties to reduce crack cocaine penalties so that the resulted in fewer federal prosecutions for ensure that cocaine sentencing policy crack-to-powder drug quantity ratio was no crack cocaine. All this occurred while crack promotes the goals of the Sentencing Reform more than 20-to-1, and that Congress repeal 1 cocaine use continued to decline. Act, including avoiding unwarranted sentence the mandatory minimum penalty for simple disparities among defendants with similar possession of crack cocaine.4 In 2007, the criminal records who have been found guilty of Commission reduced the crack cocaine similar criminal conduct and promoting guideline by two levels as an interim measure proportionate sentencing. Prior to the FSA, the to alleviate some of the problems its reports Primary Observations Commission submitted four reports to identified.5 Congress regarding cocaine sentencing, in 1. Many fewer crack cocaine offenders 1995, 1997, 2002, and 2007, based on Consistent with the Commission’s have been prosecuted annually since legislative history, scientific and medical recommendations, the FSA reduced the the FSA, although the number is still literature, extensive analysis of the statutory penalties for crack cocaine offenses substantial; Commission’s own data, public comment, and to produce an 18-to-1 crack-to-powder drug 2. The crack cocaine offenders who have 2 quantity ratio and eliminated the mandatory expert testimony. been prosecuted since the FSA are, on minimum sentence for simple possession of average, not more serious offenders Since 1995, the Commission consistently crack cocaine.6 The FSA also increased than those prosecuted before the FSA; took the position that the 100-to-1 drug statutory fines and directed the Commission quantity ratio of crack to powder cocaine to amend the U.S. Sentencing Guidelines to 3. Rates of crack cocaine offenders significantly undermined the congressional account for specified aggravating and cooperating with law enforcement objectives set forth in the Sentencing Reform mitigating circumstances in drug trafficking have not changed despite changes in Act. The Commission reached this conclusion offenses involving any drug type, not only penalties; and, based on its core findings regarding crack crack cocaine.7 cocaine penalties as they existed before the 4. On average, crack cocaine sentences are closer to powder cocaine sentences. FSA: The FSA also directed the Commission to “study and submit to Congress a report Report to the Congress: Fair Sentencing Act of 2010 3 Historical Background Federal Cocaine Sentencing Policy 1985 through 2000 Report to the Congress: Fair Sentencing Act of 2010 4 Historical Background Federal Cocaine Sentencing Policy 2000 through 2015 Report to the Congress: Fair Sentencing Act of 2010 5 Historical Background The question of how severely to punish In response to the 1986 Act the Commission powder drug quantity ratio and also crack cocaine offenders has vexed Congress, incorporated the mandatory minimum recommended that Congress revisit the the Commission, the courts, and the penalties into the guidelines by setting the penalties applicable to crack cocaine simple Department of Justice for almost three decades. drug quantity thresholds in the Drug Quantity possession.18 Crack cocaine entered the nation’s Table so as to provide base offense levels Acting on its 1995 findings, the Commission consciousness with the death of University of (levels 26 and 32) corresponding to guideline voted to amend the guidelines to adopt a 1-to-1 Maryland basketball player Len Bias on June ranges that were above the statutory crack-to-powder drug quantity ratio and added 19, 1986, two days after he had been drafted mandatory minimum penalties.13 new sentencing enhancements for violence and by the Boston Celtics. Early, but incorrect, Congress acted again by passing the Anti- other harms associated with crack cocaine.19 reports suggesting that Bias’ death was due to Drug Abuse Act of 1988, which among other Before the guideline amendment took effect, crack cocaine use, among other reports of things made first time simple possession of Congress rejected the proposed amendment increased danger from the new form of crack cocaine an offense punishable by a and directed the Commission to again study cocaine, raised concern in Congress.9 mandatory minimum penalty, the only drug so federal cocaine sentencing policy.20 Congress specifically addressed crack punished.14 In response to this directive, the cocaine as part of the Anti-Drug Abuse Act of In the Violent Crime Control and Law Commission issued its 1997 report, reiterating 1986.10 Among other things, the 1986 Act Enforcement Act of 1994, Congress directed the 1995 Report’s recommendation that created statutory mandatory minimum the Commission to study and report on federal Congress revisit both the 100-to-1 crack-to- penalties that differentiated between powder cocaine sentencing policy.15 Concurrently, the powder drug quantity ratio and the mandatory cocaine and crack cocaine.11 Specifically, the Commission worked with Congress to minimum penalty for simple possession of 1986 Act set 5- and 10-year mandatory implement a statutory “safety valve” provision crack cocaine.21 minimum penalties for trafficking in crack and that would permit courts to sentence certain powder cocaine based on the amount of the In 2002, responding to congressional low-level, non-violent drug offenders below drug. The 1986 Act required 100 times as interest, the Commission published its third the otherwise applicable mandatory minimum much powder cocaine as crack cocaine to report on federal cocaine sentencing policy.22 penalty, including crack cocaine offenders.16 trigger the same mandatory minimum penalty; In the 2002 Report, the Commission hence, the 1986 Act’s penalties are described In February 1995, the Commission sent to recommended a crack-to-powder drug as setting a 100-to-1 crack-to-powder drug Congress the first of four reports on federal quantity ratio of not more than 20-to-1 and quantity ratio. The 1986 Act’s mandatory cocaine sentencing policy.17 In the 1995 that Congress repeal the mandatory minimum minimum penalties were the first since
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