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A Positive Development in All the Sentencing Insanity
How The Supreme Court and the U.S. Sentencing Commission Have Begun to Correct the Damage Done by the War on Drugs
12/19/07|FindLaw.com| by Mark Allenbaugh

Since the Nixon Administration, our nation has been engaging in a relentless, yet futile War on Drugs--not on crime, but specifically on drugs. This war has not only been costly, but also done virtually nothing to stem the influx of drugs into our nation or Americans' drug use. In fact, some have argued that the War on Drugs has actually created incentives for illicit drug manufacturers to develop new products such as methamphetamine and Ecstasy, as well as to develop better and more efficient distribution channels through Mexico, and perhaps even China.

And yet, despite clear indications that we long ago lost this war (at least as defined by the ways we are fighting it and the rhetoric we use), we mindlessly continue along the same path.

But despite all this despairing history, there now is a glimmer of hope for more sane drug sentencing - in the form of two December 10 decisions from the Supreme Court.

The Cost, and the Failure, of the War on Drugs

What this War on Drugs has accomplished is nothing short of shocking and disheartening. Of the estimated nine million persons incarcerated worldwide, over two million, or over 22%, are located here in the United States--a country that makes up less than five percent of the world's population and purports to be the leader of the free world.

Not surprisingly, we also lead the world in incarceration rates, at 714 per 100,000 persons. In contrast, according to the World Prison Population List commissioned by King's College of London, the median prison population rates for African countries is 52 to 324, the Americas 152 to 324, Asia 55 to 386, and Europe 80 to 184. And this is to say nothing of the gross racial disparities we continue to see with respect to the incarceration rates of certain minority groups in this country.

The Culprit for the U.S.'s Staggering Incarceration Rate: Mandatory Minimums

These outrageous statistics primarily are the result of simplistic, overly-punitive drug sentencing policies, first promulgated in the 1980s, known as mandatory minimum sentences. These mandatory minimum laws require, as I discussed in a prior column, a mandatory five years of imprisonment for a mere five grams of crack cocaine, and ten years for ten grams.

But along with these draconian mandatory sentences also came an inherent disparity: For what is virtually the same drug--powder cocaine--the penalties were 100 times less severe. This led to extreme racial disparities in prosecutions and sentences, with African-American men suffering the brunt of these ill-conceived laws.
Given the length of these sentences and the resources devoted to the War on Drugs, it comes as no surprise that, according to the latest statistics from the Federal Bureau of Prisons, over half the inmates in the federal penal system--which is, by the way, 34% over capacity--are serving time for drug offenses. In contrast, only 11% are serving time for violent crimes such as homicide, aggravated assault, kidnapping, sex offenses and the like.

Virtually since the inception of mandatory minimum sentencing laws, many have called for their repeal. In fact, in a 2003 address to the American Bar Association, Justice Anthony Kennedy stated that "I can accept neither the necessity nor the wisdom of federal mandatory minimum sentences. In too many cases, mandatory minimum sentences are unwise and unjust."

Likewise, in a concurrence in part and concurrence in the judgment in Harris v. United States--a case that found the mandatory minimums constitutional-- Justice Stephen Breyer also stated, "Mandatory minimum statutes are fundamentally inconsistent with Congress' simultaneous effort to create a fair, honest, and rational sentencing system through the use of Sentencing Guidelines. Unlike Guideline sentences, statutory mandatory minimums generally deny the judge the legal power to depart downward, no matter how unusual the special circumstances that call for leniency. They rarely reflect an effort to achieve sentencing proportionality--a key element of sentencing fairness that demands that the law punish a drug 'kingpin' and a 'mule' differently. They transfer sentencing power to prosecutors, who can determine sentences through the charges they decide to bring, and who thereby have reintroduced much of the sentencing disparity that Congress created Guidelines to eliminate." (Citations omitted).

Ultimately it was this removal of judicial sentencing discretion that created such enormous problems with mandatory minimum sentencing schemes. And because the U.S. Sentencing Commission decided to overlay the drug sentencing guidelines onto the five and ten-year mandatory minimums, the same fundamental unfairness transferred onto them, including the infamous 100-to-1 powder/crack cocaine sentencing disparity.

Fortunately, two very recent Supreme Court decisions promise to at least improve the situation.

The Kimbrough and Gall Decisions: A Victory for Judicial Sentencing Discretion

On December 10 of this year, the Supreme Court further clarified its 2005 holding in Booker v. United States that the Federal Sentencing Guidelines were merely advisory. The Court held in Kimbrough v. United States that the drug sentencing guidelines were no different than any of the other sentencing guidelines: they too were merely advisory.

The majority of Justices held that it was permissible for a judge to impose a sentence outside the recommended Guidelines range, even if the judge's decision in part arose from his or her disagreement with the Congressionally-created 100-to-1 quantity ratio. The Judge's duty, the Court reasoned, is to impose a sentence that will parsimoniously advance the purposes sentenceing listed in the sentencing statute. The fact that Congress imposed a particular ratio between different drugs, and that the Commission incorporated this ratio into the guidelines, does not preclude the sentencing judge from finding that the ratio results in an inappropriate sentence in a particular case. Of course, sentencing judges still are bound by the statutory mandatory minimum and maximum sentences, but they retain the discretion to impose a reasonable sentence while staying within the applicable statutory range.

Similarly, in Gall v. United States, decided the same day and also a drug sentencing case, the Court upheld a sentence of straight probation where the Guidelines had called for a sentence of 30 to 37 months. (There was no mandatory minimum applicable.) Again, clarifying the Booker holding that the guidelines are merely advisory, the Court overturned an opinion by the U.S. Court of Appeals for the Eight Circuit that had held that such a significant departure from the Guidelines required "extraordinary" circumstances. The Court held that sentencing judges are to be afforded a high level of discretion when imposing a sentence, even a sentence significantly different from what the Guidelines call for. The extent or strength of the justification for a non-Guidelines sentence, the Court said, does not depend on the mathematical distance of the sentence from the advisory guidelines range.

As a result of the Kimbrough and Gall decisions, much of the discretion that had long ago been lost to sentencing judges, during the War on Drugs, has been restored. The decisions shift the power to determine sentences away from the Sentencing Guidelines, prosecutors and circuit courts of appeal, which, since Booker, had often rejected particular grounds upon which judges have based their sentences. These decisions rightly place that power back in the hands of the district court judges most familiar with the facts of the offense and the offender upon whom they are imposing a sentence.

While sentencing judges still must properly calculate the Guidelines advisory sentencing range, and carefully consider it, the Court emphasized that, while the Sentencing Commission is in the best institutional position to formulate general sentencing policy guidance, the sentencing judge is in the best position to evaluate the sentencing outcome of the individual case before him or her.

The Commission's Amendment and Retroactive Application of the Crack Sentencing Guidelines

While the Commission had incorporated into the crack sentencing guideline the 1:100 quantity ratio established by the mandatory minimums, it had argued for twelve years that the ratio could not be justified. Crack and powder cocaine are pharmacologically- equivalent drugs that differ only in their method of ingestion. The harms of crack are found with powder as well, and even crack's addictiveness, which is a consequence of its being smoked, can be found with powder cocaine when it is smoked or injected. All crack is initially imported and distributed as powder. So the harsher treatment of crack, which falls disproportionately on African-Americans, cannot logically be justified.

After years of attempting to convince Congress to change the statutory ratio, the Commission this year decided to act. Earlier this year, in an effort to address what it saw as an "urgent and compelling" need to address the 100-to-1 sentencing disparity, it amended the Guidelines to lower the Guidelines range associated with crack by two offense levels, which translates into sentence decreases averaging 27 months. At the same time, the Commission advised Congress that this Amendment was only a partial solution to the problem of the 100:1 quantity ration, and asked Congress to amend the statutes to reflect more just and fair treatment of the two forms of cocaine at sentencing.

While this amendment took effect on November 1, 2007, it offered no relief to persons currently incarcerated before that date. The question before the Commission at its December meeting, therefore, was whether to make this amendment retroactive to the nearly 20,000 offenders currently imprisoned who could have potentially benefited from this change had the amendment been in effect at the time of their sentencing.

Fortuitously, the day after the Kimbrough and Gall decisions, the U.S. Sentencing Commission voted unanimously to make retroactive the recent change it had made to the drug Guidelines. This amendment became effective November 1, 2007, and the Commission voted to make it retroactive effective March 8, 2008.

According to the Commission, "[c]urrent data and information continue to support the Commission's consistently held position that the 100-to-1 drug quantity ratio significantly undermines various congressional objectives set forth in the Sentencing Reform Act and elsewhere."

While the amended crack sentencing guidelines are still mapped onto the mandatory minimum sentences, they do offer at least "an interim solution to some of the problems associated with the 100-to-1 drug quantity ratio. . . . Any comprehensive solution to the 100-to-1 drug quantity ratio requires appropriate legislative action by Congress."

What Will Congress Do?

Now that the Supreme Court has moved toward restoring significant sentencing discretion in the district courts, and the Commission has done what it can to mitigate the onerous impact of mandatory minimum drug sentences, it is time for Congress to finally act to finish the reforms that the Court and the Commission have started.

Unfortunately, history suggests that the time may not be right for Congress to act, given that this is an election year, although some presidential candidates have at least made efforts to address our national addiction to incarceration.

In all events, it is far past time for politicians to cease talking about the "War on Drugs" and being "Tough on Crime." Such rhetoric has only led the U.S. to becoming the "Incarceration Nation."

What we need, instead, is strong Congressional and Executive leadership that is willing to stop the madness of the War on Drugs and change our approach from "tough" to "intelligent." Rather than incarcerate, we should educate, motivate, and innovate. There are better, less expensive, and more effective ways to minimize and prevent drug abuse than replacing judicial sentencing discretion with mindless mandatory minimums and overcrowded prisons. Apparently, we are the only nation on earth that has not yet figured out this out.

 

Kushable

Although this probably wont change much because most judges are old and tend to resist change this is one step forward, not for the legalization of marijuana, but for a better America.

Yana Usdi

Just passing by, but this post caught my attention.

The International Centre for Prison Studies out of Kings College, London is a resource I use fairly often, the stats they list of 714 per 100k has been out of date for a while now. According to what they list at the moment it's 750 per 100k and we're still growing at a steady clip with every report higher than the last for years now.

To check it for yourself visit the following link.

http://www.prisonstudies.org/

Select Language, click World Prison Brief on the left hand side of the screen, click the Highest to Lowest link on the left, then select rates from the drop down list. The Kings College reference (same source as in the article) is on the top right of every page.

In case anyone isn't aware of the cost of this stuff, the racial disparities both in crack/powder and the effects of things like safe school zones which hit crowded city neighborhoods harder than the more sparsely populated suburbs, the following link might help to spell the cost out some.

PrisonSucks.com: Research on the prison industrial complex

In principle they have it down pretty well though. Right now our biggest problem seems to be the leadership of the House. There's been some noise about it in the Senate but word is that the leadership of the House has asked members not to even bring the subject up. Afraid to look soft I guess and they don't realize that the fear itself makes them look weak too.

That's going to cost them and more than they know, and it already has in the past. The rise of the drug war and the fall of the democratic party didn't just happen to coincide, they were related. When large chunks of their traditional base became either disenfranchised or too disheartened to believe anyone was on their side anymore the dems lost support at the polls and in no small part due to laws they themselves helped to pass. It wasn't that the nation as a whole was shifting that fast and that far to the right, but that those showing up at the polls was. They participated in their own suicide as a party and haven't managed to see it yet. Engineered a good part of that rightward shift we've all heard so much about themselves.

If they ever want to get out from under it they've got to change the way they act. This would be a good place to start.

__________________
LEAP Current and former members of law enforcement who support drug regulation rather than prohibition.
Drug Policy Alliance Alternatives to Marijuana Prohibition and the Drug War

Viper420

I got no sympathy for Crack dealers. If anything, they should have increased the penalties for powder cocaine to match that of crack.

Yana Usdi

I don't think anyone asked for sympathy, from you or anyone else, and certainly not for dealers. Just fairness in the way laws are applied. 500 grams of powder draws the same penalty as a 5 gram rock, that's a 100 to 1 disparity which puts real dealers in the same cell as a stupid kid shopping for the weekend party.

Out of respect for the rules about discussing other drugs here I'll leave it at that but I'll offer anyone interested a couple of outside links to consider. First is to a rather long debate attached to a video from Law Enforcement Against Prohibition and the debate covers the doubts of what skeptics were there to post at the time, concerns about could it work and what might happen. Didn't hit every possible angle but it covered a few.

Cops say legalize drugs, ask them why

Second link connects a few dots most people aren't used to thinking about, was highly critical of our record and the impact on the democratic party and got a pretty good reception, on a democratic board. This is, at least in part, what it's been costing us, and even if their leadership isn't ready to see it growing parts of their base does seem to be..

The problems of today are built on the mistakes of yesterday

If anyone can look at those and come away still not caring I don't know what to tell them. Unless there's something important to answer I think I'll leave it there.

 

Viper420

I can't see any serious law enforcement officer in favor of legalizing crack or meth or any other DEADLY drug. MJ is one thing, crack is a bird of a different color. Attempting to tie all drugs together in some sort of grand legalization scheme is doomed to totally fail and would be a complete waste of time. I'm completely satisfied with the sentences that crack dealers are getting. They deserve every minute they are in jail. As far as the contrast between the crack and cocaine sentences is concerned....easy fix. Just raise the sentences for cocaine to match those of crack.

Yana Usdi

My guess would be that it's because death rates have climbed several times rather than fallen, prices adjusted for inflation have fallen rather than climbed, we've hurt no enemy in any way worth counting with every cartel we remove being quickly replaced by one or more at least as dangerous as the last, rather than driving them away they are now located on our borders, because in a market we created with those laws we're actually financing our own enemies, or maybe because they saw those results and realized what To Protect and Serve really means.

Take your pick. I can't have the discussion here due to the rules but if you read the outside threads you were pointed to it should be clear enough how someone else could consider options, even if you don't agree. Yeah, they are real.

Buzzby

I find it hard to believe that you really think that some college kid with five grams of powder cocaine for a weekend party deserves to spend a minimum of five years behind bars for it if caught. The punishment in no way fits the crime.

__________________

Jake

Prohibition of cocaine is the same as prohibition of marijuana, which is the same as the prohibition of alcohol.

Positive news on the cocaine front is positive news for marijuana also.

__________________

Viper420

When people hear that you want to legalize cocaine along with marijuana, the only thing you'll do is achieve neither. If your cause is to end MJ prohibition, drop the "legalize cocaine" mantra. I believe that MJ should be legalized but if it means that cocaine will also be legal then I'm for the status quo. (Me and 99% of america)