TWO JUDGES TARGET COCAINE PENALTIES

Disparity for Crack Crimes Criticized

Federal judges are beginning to equalize punishment for crack and
powder cocaine crimes, resulting in shorter prison terms for crack
dealers and putting pressure on Congress to address a wide disparity
in how the legal system handles cocaine-related offenses.

In two recent rulings and interviews, a federal judge in the District
and one in Iowa said they had policy differences with Congress and a
judicial commission that they said did not go far enough to change
the guidelines for crack sentences in 2007.

From now on, the judges wrote, they will calculate sentences for
crack offenders by using the more-lenient sentencing guidelines for
powder cocaine crimes.

Recent Supreme Court rulings and supportive statements from top
Justice Department officials paved the way for the judges' decisions.
Nonetheless, such unilateral action from the bench is unusual. Legal
scholars said the decisions highlight the judiciary's irritation at
the slow pace of sentencing reform as Congress considers the first
major revision of crack statutes in decades.

"The decisions are a very big deal, especially if they start a
trend," said Douglas Berman, an Ohio State University law professor.
"The fact that judges are doing this, and doing it vocally, shows
they are frustrated. And it's garnering attention and could be the
catalyst for Congress to act."

In recent years, a general consensus has emerged that crack sentences
and guidelines are too stiff and unfairly affect African Americans.
Attorney General Eric H. Holder Jr. and other Justice Department
officials have said they believe that crack cocaine sentences are
unfair. "It is time to do away with the disparity," Holder told
Congress this month.

Rep. Robert C. Scott (D-Va.), chairman of the Judiciary subcommittee
that handles such matters, said he expects legislation on crack
sentences by year's end. The House is considering several proposals
to change sentencing laws. "We need to fix this problem," he said.

Stiffer penalties for crack offenders were instituted in the 1980s,
when many cities, including Washington, were plagued by violent crime
blamed on the drug trade. But over the years, as sentences were
imposed, many criticized the punitive disparity.

The law, passed without much research, dictated a 100-to-1 disparity
in punishments for crack and powder cocaine crimes. So a person
convicted of selling five grams of crack generally draws the same
five-year mandatory minimum sentence as someone convicted of
distributing 500 grams of powder cocaine.

When the U.S. Sentencing Commission, an independent agency in the
judicial branch, eased the guidelines for crack offenders in 2007, it
allowed imprisoned crack offenders to seek leniency. Adjustments have
reduced prison terms by an average of two years for more than 12,000
crack offenders.

But the two federal judges say that tweak does not go far enough.

"The unwarranted sentencing disparity between crack and powder
cocaine sentences is one that has been written into the law and the
guidelines, and there is no good reason for that," U.S. District
Judge Paul L. Friedman of the District's federal court said.

In his opinion, Friedman declared he would use a "1-to-1"
crack-powder ratio as a starting point in resentencing a convicted
crack dealer, Anthony Lewis, 37, who faced 16 to 19 years under the
old guidelines. The judge, who was already applying a 20-to-1 ratio
in crack cases, said he would consider mitigating and aggravating
factors as he applied the 1-to-1 guideline to each case.

In Lewis's case, the 1-to-1 ratio would have reduced his prison
sentence from 13 1/2 years to less than five years, but the law
required at least 10 years. The judge sentenced Lewis to 10 years and
10 months in prison. The judge cited Lewis's "significant criminal
history" in giving him more prison time than the mandatory minimum.

Friedman relied heavily on an opinion issued in May by U.S. District
Judge Mark W. Bennett of the Northern District of Iowa, who used the
guidelines for powder cocaine offenses to begin calculating the
sentence of a crack dealer. The dealer eventually received a sentence
within the two guideline ranges.

Both judges cited recent Supreme Court rulings giving the judiciary
greater leeway in sentencing. In January, the Supreme Court said
judges "are entitled to reject and vary categorically from the
crack-cocaine Guidelines based on a policy difference with those Guidelines."

"I had an absolutely legitimate basis to disagree with the guidelines
on a policy basis," Bennett said in a phone interview. "I have always
been troubled by the disparate impact of the 100-to-1 ratio."

"I'm optimistic that some judge might agree with me," he added. "We
might start a trend."

The judges also quoted congressional testimony in April by Assistant
Attorney General Lanny A. Breuer, who said the Justice Department
wants to "completely eliminate" the disparity.

Breuer said crack is not "inherently more addictive a substance than
powder cocaine," adding that authorities could find no other narcotic
"where the penalty structure differs so dramatically because of the
drug's form." Cocaine powder is usually snorted; crack is created by
boiling powder cocaine into a solid substance and is usually smoked.

Breuer noted that the sentencing gap has punished low-level crack
dealers much more harshly than powder cocaine sellers, and statistics
show that 82 percent of those sentenced in crack crimes are African
Americans. (Blacks account for 27 percent of powder cocaine
offenders.) Such statistics have "fueled the belief across the
country that federal cocaine laws are unjust," he said, adding that
most states do not treat the two forms of cocaine differently.

Justice Department officials declined to be interviewed for this
article, but they are unlikely to appeal the recent rulings.

A former U.S. attorney for the District, Jeffrey A. Taylor, a
Republican appointee, said prosecutors are concerned that judges will
begin adopting their own sentencing standards.

He added that prosecutors also are uneasy about the possibility that
Congress would reduce the sentences for crack offenses to the level
of powder offenses. That would allow dealers to handle nearly 500
grams of crack before risking a mandatory minimum sentence of five
years. To alleviate some of the disparity, Taylor said, prosecutors
would like Congress to ease up on crack while toughening powder
cocaine sentences.

"No one in this town traffics in 500-gram quantities of crack, and we
wouldn't want them to start," he said. "The dealers know exactly
where these levels are set, and they will adjust their behavior accordingly."