The most noteworthy development of 2007, as far as drug policy goes, is the substantive approach to the issues of (some of) the Supreme Court Justices in their opinions. In Kimbrough v. United States (2007), Justice Ginsburg continued to ponder the old issue of the degree of applicability of the Sentencing Commission’s guidelines to courts’ sentencing procedures; however, she was also willing to talk about the actual reasons behind the sentencing revisions:

Although the [Sentencing] Commission immediately used the 100-to-1 ratio to define base offense levels for all crack and powder offenses, it later determined that the crack/powder sentencing disparity is generally unwarranted. In a series of reports, the Commission identified three problems with the crack/powder disparity.

First, the Commission reported, the 100-to-1 ratio rested on assumptions about “the relative harmfulness of the two drugs and the relative prevalence of certain harmful conduct associated with their use and distribution that more recent research and data no longer support.”, see United States Sentencing Commission, Report to Congress: Cocaine and Federal Sentencing Policy 8 (May 2007), available at http://www.ussc.gov/r_congress/cocaine2007.pdf (hereinafter 2007 Report) (ratio Congress embedded in the statute far “overstates” both “the relative harmfulness” of crack cocaine, and the “seriousness of most crack cocaine offenses”). For example, the Commission found that crack is associated with “significantly less trafficking-related violence . . . than previously assumed.” 2002 Report 100. It also observed that “the negative effects of prenatal crack cocaine exposure are identical to the negative effects of prenatal powder cocaine exposure.” Id., at 94. The Commission furthermore noted that “the epidemic of crack cocaine use by youth never materialized to the extent feared.” Id., at 96.

Second, the Commission concluded that the crack/powder disparity is inconsistent with the 1986 Act’s goal of punishing major drug traffickers more severely than low-level dealers. Drug importers and major traffickers generally deal in powder cocaine, which is then converted into crack by street-level sellers. […]

Finally, the Commission stated that the crack/powder sentencing differential “fosters disrespect for and lack of confidence in the criminal justice system” because of a “widely-held perception” that it “promotes unwarranted disparity based on race.” 2002 Report 103. Approximately 85 percent of defendants convicted of crack offenses in federal court are black; thus the severe sentences required by the 100-to-1 ratio are imposed “primarily upon black offenders.”

Previously, the Justices largely avoided discussing the “real-word” ramifications of the legislative approaches to tackling drug use and trafficking. It seems like some of them are actually willing to address the actual issues in drug policy. It comes as a welcome break from the usual formalistic approach that tended to characterize some of the Court’s previous decisions involving drugs.

Originally written on March 26, 2008

I already wrote about U.S. Sentencing Commission’s recommendation to reduce the disparity between cocaine powder and crack-cocaine minimum sentencing schemas. The Commission recommends lighter minimum sentences for crack – since, under the current statute, trafficking in crack-cocaine will result in substantially greater minimum sentence than trafficking in the equivalent amount of coke powder. The idea is that the offenders will now be punished equally for trafficking in equal amounts of the same substance.

Douglas A. Berman, a professor of law at the Ohio State University, thinks that it is an important development, legally speaking. Alex Coolman of the Drug Law Blog has a less legalese, albeit a more common-sense approach to the issue, pointing out that the proposed changes would have a virtually cosmetic impact on “roughly 70% of crack sentences will be reduced, on average, from just over 10 years to just under 9 years” (He actually got the numbers from a Professor Berman blog post).

Obviously, there are many ways to look at this development. My brain here is with Professor Berman, while my heart sides with Alex Coolman. The problem here is not disparate sentences meted out to crack and coke powder dealers, but the harsh excessiveness of the punitive solution itself. The Sentencing Commission has to operate within the framework of the punitive model supplied to us by Congress. Obviously, as Alex mentions in plain-speak, striving for equitable results in a system the facets of which are grossly inequitable to begin with won’t result in a profound change for the better. But, I suppose, a sensible thing at the moment would be abandoning a quest for fairer across-the-board general paradigms and working to make the existing system fairer one positive step at a time. Think about it: the Sentencing Commission could have eliminated the sentencing disparity by raising the penalties for cocaine powder trafficking, instead of lowering the penalties for crack.

Originally written on May 18, 2007

An 83-year-old Florida woman was forced to smoke crack cocaine by her housemate, so that the latter could steal personal information to get a credit card in the old woman’s name. After successfully obtaining the credit card, the ingenious thief racked up more than $3,000 in charges before being arrested on April 28. She is charged with:

“[…] criminal use of personal identification, use of another person’s ID without permission and retail theft, according to jail records.
[…]

The sheriff’s office said more charges were pending…”

Source: CNN: Thief made woman, 83, smoke crack, police say

If the article is wholly true, the additional charges that are pending could include:

• possession of a controlled substance;
• distribution of a controlled substance;
• battery (possibly aggravated, since either crack would be considered a “deadly weapon” or, in this context, involuntary crack smoking by an 83-year-old woman would be considered severe injury);
• domestic violence (the article says the woman got the old lady to smoke crack at least twice);
• elder abuse (if they have that in that jurisdiction – New York is currently trying to increase the penalties for elder abuse legislatively).

Some people really have a knack for complicating their lives. Had the crack “administrator” simply stole $3,000, she would be charged (under New York law) with larceny in the fourth, or possibly in the third degree. Instead, with one fell swoop, she has racked up an impressive criminal record.

Originally written on May 8, 2007

Since 1986, a defendant convicted in federal court of trafficking in crack would get the same five-year minimum sentence as a defendant trafficking in cocaine powder. The only difference is that a defendant trafficking in cocaine powder would need 500 grams of it to warrant the minimum five-year prison sentence, while the other defendant would only need 5 grams of crack to get the same sentence. Crack is mainly used by inner-city poor; due to its higher cost, cocaine powder has, until recently, been a drug prevalently used by the rich(er) members of society. Both are essentially the same drug. It doesn’t take a sharp mind to realize the social effect of the disparity in sentencing guidelines.

But, finally, something is being done about it:

“The U.S. Sentencing Commission voted to lower the recommended sentencing range for those caught with 5 grams or more of crack cocaine from 63 months to 78 months to a range of 51 months to 63 months. Those with at least 50 grams should serve 97 months to 121 months in prison, not 121 months to 151 months, as the guidelines now say, the commission said late Friday. ”

COMMISSION RECOMMENDS LIGHTER MINIMUM SENTENCE FOR CRACK COCAINE CONVICTION

Unfortunately, it seems that the Commission’s recommendations might not carry as much weight as it might seem from the article:

“This is the fourth time the commission, an independent agency in the judicial branch, has recommended that Congress narrow the sentencing gap. Previous recommendations, which were not adopted, have included raising the penalties for powder cocaine and lowering them for crack.”

Quoted from the article above

Turning to our nation’s highest court would confirm how toothless the Commission’s recommendations can be. In Neal v. United States (1996), Justice Kennedy writes:

“Once the Court has determined a statute’s meaning, it adheres to its ruling under stare decisis and assesses an agency’s later interpretation of the statute against that settled law. It is the responsibility of Congress, not this Court, to change statutes that are thought to be unwise or unfair.”

So, the ball is squarely in Congress’ court (no pun intended, I suppose). I wonder how many Congressmen would vote for [sic] softer punishments for crack dealers…

For more on the impact of this disparity in sentencing guidelines, see the excerpts from the dissent by Justice Stevens in United States v. Armstrong et al. (1996).

Originally written on May 2, 2007