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2002 Report on Cocaine and Federal Sentencing Policy

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2002 Report on Cocaine and Federal Sentencing Policy Chapter 1 BACKGROUND A. INTRODUCTION This report updates and supplements much of the research and data presented in the United States Sentencing Commission’s 1995 Special Report to Congress: Cocaine and Federal Sentencing Policy1 [hereinafter the 1995 Commission Report] and referred to in the Commission’s 1997 Special Report to Congress: Cocaine and Federal Sentencing Policy2 [hereinafter the 1997 Commission Report]. The Commission submits this report pursuant to both its general statutory authority under 28 U.S.C. §§ 994-95 and its specific responsibility to advise Congress on sentencing policy under 28 U.S.C. § 995(a)(20).3 As discussed in more detail below, Congress disapproved the Commission’s guideline amendment addressing crack cocaine penalties submitted on May 1, 1995, and has not acted on the statutory recommendations set forth in the 1995 Commission Report and the 1997 Commission Report.4 Federal sentencing policy for cocaine offenses continues to come under substantial criticism from various public officials, private citizens, criminal justice practitioners, researchers, and interest groups. The Commission renewed its assessment of federal cocaine sentencing policy in part to consider and address those concerns. 1 United States Sentencing Commission [USSC], 1995 SPECIAL REPORT TO CONGRESS: COCAINE AND FEDERAL SENTENCING POLICY (as directed by section 280006 of Public Law 103–322) (February 1995). 2 USSC, 1997 SPECIAL REPORT TO CONGRESS: COCAINE AND FEDERAL SENTENCING POLICY (as directed by section 2 of Pub. L. 104–38) (April 1997). 3 The Sentencing Reform Act of 1984 created the Commission as an independent agency in the judicial branch of government. Pub. L. No. 98–473 (1984). The Act directed the Commission to establish and maintain sentencing policies and practices for the federal criminal justice system through a detailed framework of sentencing guidelines. See generally 28 U.S.C. § 994. In addition, the Act requires the Commission to monitor and report periodically on the operation of the sentencing guidelines and gives the Commission ongoing sentencing and crime policy research responsibilities. See 28 U.S.C. § 995(a)(8), (9), (12)(A), (13)-(16), (21). Specifically, the Commission is required to “make recommendations to Congress concerning modification or enactment of statutes relating to sentencing, penal, and correctional markers that the Commission finds to be necessary to carry out an effective, humane, and rational sentencing policy.” See 28 U.S.C § 995(a)(20). The Commission’s duties and authorities are fully set forth in chapter 58 of title 28, United States Code. 4 The commissioners who authored the 1995 and 1997 Commission Reports no longer sit on the Commission, having left on a staggered basis, either by expiration of term or resignation, by October 1998. 1 Critics typically focus on the differences in federal penalty levels between the two principal forms of cocaine – cocaine hydrochloride [hereinafter referred to as powder cocaine] and cocaine base [hereinafter referred to as crack cocaine].5 For example, the Commission received a statement from 28 United States Circuit Court of Appeals and District Court judges who had previously served as United States Attorneys stating that the “current disparity between powder cocaine and crack cocaine, in both the mandatory minimum statutes and the guidelines, cannot be justified and results in sentences that are unjust and do not serve society’s interest.”6 That statement echoed the sentiments expressed in a similar letter sent to the U.S. Senate and House Judiciary Committees in September 1997. See Judge John S. Martin, Jr. et al.’s September 16, 1997 statement on Powder and Crack Cocaine to the Senate and House Judiciary Committees.7 The statements of those 28 federal judges are in accord with the results of a survey of federal judges recently conducted by the Commission. The Commission surveyed federal judges for their views on whether the federal guideline system is achieving the purposes of sentencing as established in 18 U.S.C. § 3553(a)(2).8 A total of 562 judges completed the multiple choice 5 As explained in more detail below, 100 times as much powder cocaine as crack cocaine is required to trigger the same five-year and ten-year statutory mandatory minimum penalties. As a result, based solely on drug quantity the sentencing guideline penalties for crack cocaine offenses generally are three to over six times as long as the sentence guideline penalties for powder cocaine offenses involving equivalent drug quantities. 6 Statement by Certain United States Circuit Court of Appeals and District Court Judges who Previously Served as United States Attorneys, regarding the penalties for powder and crack cocaine, to the U.S. Sentencing Commission (April 16, 2002). 7 Statement on Powder and Crack Cocaine to the Senate and House Committees on the Judiciary, 105th Cong. (1997) (letter from Judge John S. Martin, Jr. et al., p. 1). This statement was signed by 27 federal judges, each of whom had served as United States Attorney. The judges stated: It is our strongly held view that the current disparity between powder cocaine and crack cocaine, in both the mandatory minimum statutes and the guidelines, cannot be justified and results in sentences that are unjust and do not serve society’s interest. At either end of the distribution chain, the substantially greater sentences for those who are involved with crack cocaine do not appear to have any greater deterrent impact than that achieved by the lower powder cocaine penalties. Thus, the differences in the current mandatory minimums and guidelines for powder and crack cocaine result in the imposition of overly severe sentences on those who are involved with relatively small amounts of crack at the lowest levels of the distribution chain, without providing any corresponding benefit to society. 8 As the Sentencing Guidelines approach their 15th year anniversary, the Commission is undertaking a study of various aspects of the federal guideline system. One component of this study is a 2 questionnaire. Almost half of the respondents (276) took the additional step of providing written responses regarding what they view as specific challenges facing the guideline system. Of the 276 judges who provided written comments, 56 judges stated that a major challenge is drug sentencing and an additional 37 judges specifically identified cocaine sentencing as that challenge. Other critics assert that the current penalty structure disproportionately impacts minority populations. See, e.g., written statement by Wade Henderson, Executive Director, Leadership Conference on Civil Rights,9 citing Commission statistics that show 84.7 percent of federal crack cocaine offenders sentenced in fiscal year 2000 were black, 9.0 percent were Hispanic, and 5.6 percent were white; written statement by Charles Kamasaki, Senior Vice President, National Council of La Raza,10 citing Commission statistics that show the proportion of Hispanic powder cocaine federal offenders has increased from 39.8 percent in fiscal year 1992 to 50.8 percent in fiscal year 2000. Since receiving the 1997 Commission Report, members of Congress have continued to express interest in exploring possible changes to the federal cocaine penalty structure, and a number of different approaches have been proposed. Several bills have been introduced that proposed equalizing the quantity-based penalties for the two forms of cocaine, either by increasing the penalties for powder cocaine11 or by decreasing the penalties for crack cocaine.12 In 2000, the Senate passed by one vote an amendment to the Bankruptcy Reform Act of 2000 offered on behalf of Senator Abraham that, among other things, would have established a 10-to-1 survey of federal district and circuit court judges soliciting their views on whether the guidelines are achieving the purposes of sentencing set forth in 18 U.S.C. § 3553(a)(2). 9 Written statement by Wade Henderson, Executive Director, Leadership Conference on Civil Rights, to the U.S. Sentencing Commission regarding Drug Penalties (February 25, 2002). 10 Written statement by Charles Kamasaki, Senior Vice President, National Council of La Raza, to the U.S. Sentencing Commission regarding Drug Penalties (February 25, 2002). 11 See, e.g., S. 1162, 105th Cong. (1997) introduced by Sen. Wayne Allard; S. 209, 105th Cong. (1997) introduced by Sen. John Breaux; S. 1593, 105th Cong. (1998) introduced by Sen. Allard; H.R. 332, 105th Cong. (1997) introduced by Rep. Gerald Solomon; H.R. 2229, 105th Cong. (1997) introduced by Rep. William Pascrell, Jr.; and H.R. 4026, 107th Cong. (2002) introduced by Rep. Roscoe Bartlett. 12 See, e.g., H.R. 2031, 105th Cong. (1997) introduced by Rep. Charles Rangel; H.R. 939, 106th Cong. (1999) introduced by Rep. Rangel; H.R. 1241, 106th Cong. (1999) introduced by Rep. Maxine Waters; and H.R. 697, 107th Cong. (2001) introduced by Rep. Rangel. 3 drug quantity ratio by reducing the five-year powder cocaine trigger quantity from 500 grams to 50 grams.13 More recently, Senators Jeff Sessions and Orrin Hatch introduced Senate Bill 1847, the Drug Sentencing Reform Act of 2001, which among other things, would reduce the 100-to-1 drug quantity ratio to 20-to-1 by increasing the statutory mandatory minimum penalties for powder cocaine and decreasing the statutory mandatory minimum penalties for crack cocaine.14 In addition, Senators Patrick Leahy and Hatch, Chairman and Ranking Member of the Senate Judiciary Committee, respectively, recently wrote the Commission requesting that it examine federal cocaine penalties and study certain specific issues.15 The Commission welcomes this renewed congressional interest and hopes to work with Congress and other representatives of the criminal justice system to develop appropriate modifications to the federal penalty structure for cocaine offenses. B. CURRENT PENALTY STRUCTURE FOR FEDERAL COCAINE OFFENSES The Anti-Drug Abuse Act of 198616 [hereinafter the 1986 Act] established the basic framework of statutory mandatory minimum penalties currently applicable to federal drug trafficking offenses.
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