FIXING COCAINE SENTENCING LAWS

This month the Supreme Court heard a case that touched on a 20-year-old
controversy involving justice and crack cocaine.

The court will rule early next year in Kimbrough vs. United States whether
a federal district judge's more lenient sentencing decision, based on his
disagreement with policy that punishes crimes involving crack cocaine more
harshly than those involving powder cocaine, is reasonable.

The case will help judges determine their ability to sentence below an
advisory guideline range. Unfortunately, the outcome will leave in place
the excessive mandatory penalties that the Kimbrough judge found unjust.

The case of Derrick Kimbrough stems from his 2005 guilty plea in Virginia
for possession with intent to distribute 56 grams of crack cocaine and
possession of a firearm. Kimbrough, a Desert Storm veteran with no previous
felony convictions, was prosecuted in federal court where penalties
involving crack cocaine are harsher than in state systems. As a result,
instead of receiving a sentence of about 10 years under Virginia law, he
faced a federal sentencing guideline range between 19 and 22 years.

Federal District Judge Raymond A. Jackson, who presided over Kimbrough's
case, called the recommended guideline sentence "ridiculous" and instead
sentenced Kimbrough to 15 years, the minimum required by mandatory
sentencing laws.

The sentencing range in this case and many other drug-related cases is tied
to mandatory minimum sentences passed by Congress in the 1980s. Lawmakers
intended to impose tough penalties on high-level drug market operators,
such as heads of drug organizations and major drug traffickers.

However, the small quantities that trigger mandatory minimum sentences for
crack cocaine offenses largely entangle defendants with bit roles in the
crack trade. In 2006, more than 60 percent of federal crack cocaine
defendants had only low-level involvement in drug activity, such as
street-level dealers, couriers or lookouts. State criminal justice systems
are well equipped to handle these kinds of cases but are unable to pursue
the importers and international traffickers who bring drugs into the country.

Stopping drugs from crossing America's borders is the domain of federal law
enforcement, but federal resources are being misdirected.

Had the drugs Kimbrough possessed been solely powder cocaine the amount
would not have triggered a mandatory minimum sentence or the lengthy
sentencing guideline range. Indeed, it takes 5,000 grams of powder cocaine,
100 times the amount of crack cocaine Kimbrough possessed, to warrant a
10-year mandatory. This dramatic sentencing disparity exists despite the
fact that the drugs are pharmacologically identical -- crack is made by
cooking powder cocaine with baking soda and water. Both drugs produce
equally harmful effects on the body.

Is 10 years in prison for a nonviolent drug offense money well spent? The
U.S. Justice Department says yes, but many in Congress disagree and a
bipartisan group is seeking to change the crack cocaine sentencing law.
Since May, three proposals to reform sentencing laws have been introduced
in the Senate. Each bill would reduce the quantity disparity between crack
and powder cocaine necessary to trigger a mandatory minimum sentence.

One proposal that would equalize the penalties for crack and powder cocaine
goes the farthest to shift federal law enforcement focus from street level
dealers, like Mr. Kimbrough, toward high-level traffickers.

The momentum in Congress is buoyed by a recent report from the U.S.
Sentencing Commission which finds the penalties for cocaine offenses
"overstate the relative harmfulness of crack cocaine" and "sweep too
broadly and apply most often to lower level-offenders." The commission has
recommended statutory reforms to Congress and has proposed an amendment to
decrease the guideline offense level for crack cocaine offenses.

The amendment could reduce crack sentences by 15 months on average and
would go into effect Nov. 1 as long as Congress does not act to reject it.
However, it would not change the statutory mandatory minimums.

The Supreme Court's consideration of the magnitude of discretion afforded
to federal judges is a step towards creating a more just sentencing system.
However regardless of the Court's action on this case, without Congress
altering the harsh mandatory penalties for crack cocaine offenses,
America's sentencing policy will remain unreasonable.

Kara Gotsch is the director of advocacy at the Washington-based Sentencing
Project. Copyright 2007 by the American Forum.