Federal Crack Cases   

In 1986, Congress made a policy decision that powder and crack cocaine should be treated as two distinct drugs.  By creating this distinction, Congress justified a two tiered sentencing scheme wherein individuals convicted of powder cocaine would receive significantly lower sentences than those similarly convicted of crack cocaine.  This policy decision was codified by Congress with the Anti-Drug Abuse Act of 1986 which instituted mandatory minimum sentences for a variety of drugs including crack and powder cocaine. 

Under the Anti-Drug Abuse Act, a first-time trafficking offense involving five grams of crack cocaine requires a mandatory minimum sentence of five years.  However, the equivalent five year mandatory minimum sentence for powder cocaine requires 100 times the amount of cocaine.  In other words, to be subject to the same five year mandatory minimum sentence, an individual must traffic 500 grams of powder cocaine as compared to 50 grams of crack.  This 100:1 ratio is equally reflected in the 10 year mandatory minimum sentencing scheme of the Anti-Drug Abuse Act.  Under that scheme, a case involving 50 grams of crack cocaine requires a mandatory minimum sentence of 10 years whereas 5,000 grams of powder cocaine is required before the same 10 year mandatory minimum sentence is invoked. 

At the same time the Anti-Drug Abuse Act was enacted, the United States Sentencing Commission was in the process of developing its first set of federal sentencing guidelines.  The sentencing guidelines incorporated the same 100:1 crack/powder ratio found in the Anti-Drug Abuse Act of 1986.  The primary purpose of the federal sentencing guidelines was to create uniform sentencing throughout the federal court system.  Before the guidelines were established, federal court judges were given extremely wide latitude to sentence criminal defendants and were constrained only by the maximum penalty prescribed by federal law.  Under this system, however, judicial discretion was often exercised in a racially discriminatory fashion.  The guidelines set out to eliminate this discrimination by providing narrowly tailored sentencing ranges based on specific offense-related factors and varying criminal histories.  These narrowly prescribed sentencing ranges became binding on federal court judges and, in large part, thwarted judicial sentencing discretion.

Although the guidelines were created to reduce racial discrimination in federal sentencing, the guideline’s 100:1 sentencing disparity between crack and powder cocaine resulted in equally discriminatory sentences.  According to the American Bar Association (“ABA”), 82 % of those sentenced under federal crack cocaine laws have been African-American despite the fact that 66% of those who use crack cocaine are Caucasian or Hispanic.  Consequently, African-Americans have spent substantially more time in federal prison for drug offenses than their Caucasian counterparts.  In addition, since crack cocaine is made from powder cocaine, the crack/powder disparity ends up penalizing low-level crack dealers with greater severity than big time powder suppliers.  Therefore, by inventing a distinction between crack and powder cocaine and assigning disparate sentences to each, Congress effectively undermined the goal of the sentencing guidelines by re-institutionalizing the same de facto discrimination.  As a result, the Anti-Drug Abuse Act of 1986 and the federal sentencing guidelines have attracted enormous criticism over the last 20 years. 

In an attempt to address this long standing inequity, Congress directed the Sentencing Commission to conduct empirical studies on the overall impact of sentencing crack and powder cocaine separately.  Since 1995, the Sentencing Commission has submitted four reports to Congress all of which acknowledge that the 100:1 crack/powder cocaine disparity, resulting in highly disproportionate sentences, is unwarranted.  The first report, authored by the Commission in May of 1995, recommended that Congress give equal treatment to crack and powder cocaine.  Congress rejected this recommendation. 

Recently, however, the United States Supreme Court chastised Congress for creating this artificial distinction between crack and powder cocaine exposing the fact that Congress based its two-tier system on “assumption” rather than quantitative science.  In Kimbrough v. United States, __ U.S. __, 128 S. Ct. 558, 568-69 (2007), the High Court acknowledged that empirical data now shows that crack and powder cocaine are two forms of the same drug; that the active ingredient in powder and crack cocaine is the same; and that the two forms of the drug also have the same physiological and psychotropic effects.  Consequently, the Court in Kimbrough concluded that federal district courts could ignore guideline ranges which fix crack cocaine sentences significantly higher than powder cocaine sentences.                    

Similarly, on November 1, 2007, the Sentencing Commission amended the guidelines by providing a two level reduction in most crack cocaine cases.  By making this amendment retroactive, the Sentencing Commission invited federal inmates convicted of trafficking crack cocaine to re-open their sentences and argue for a discretionary two level reduction.  While the guidelines claim that a federal court is limited to a two level reduction, other case law suggests that, once the sentence is re-opened, federal court judges retain full discretion to sentence anywhere within the statutory range set by Congress.  

The Legal Appeals Group has become an expert in this litigation representing defendants on a national basis.  In all cases, the Legal Appeals Group has been able to successfully reduce our client’s federal sentences and, in many instances, we have compelled immediate release.