 November
20, 2005 - Providence Journal (RI)
Judge Rails Against Drug Sentencing
Federal Sentencing Guidelines Treat 5 Grams Of Crack As The
Equivalent Of 500 Grams Of Powder Cocaine
By Edward Fitzpatrick, Journal Staff Writer
PROVIDENCE -- Federal judges and prosecutors in Rhode
Island have joined a national debate over the disparity in prison
sentences for crack versus powder cocaine.
U.S. District Judge William E. Smith sentenced a Pawtucket
man in September, saying he would not "blindly apply"
federal sentencing guidelines that treat 5 grams of crack as
the equivalent of 500 grams of powder cocaine. (A packet of sugar
weighs about 1 gram).
"The growing sentiment in the district courts is clear,"
Smith wrote in a 71-page sentencing memorandum. "The advisory
guideline range for crack cocaine based on the 100-1 ratio cannot
withstand the scrutiny imposed by sentencing courts when [sentencing
goals] are applied." Smith said a 20-to-1 ratio "makes
the most sense."
But the U.S. Attorney's office for Rhode Island is rallying
to the defense of the 100-to-1 ratio. Prosecutors are appealing
Smith's sentence, and they're challenging Chief U.S. District
Judge Ernest C. Torres' decision to substitute a 20-to-1 ratio
in two similar drug cases.
The issue, prosecutors wrote, is whether it's reasonable for
judges "to adopt their own across-the-board rules regarding
the appropriate crack/powder sentencing ratio, when such rules
override Congress' judgment on how severely crack offenses should
be punished, and when the proliferation of varying ratios threatens
to yield wildly disparate sentences as judges institute their
own preferred schemes."
The 100-to-1 ratio does not mean that prison sentences for
crack are 100 times longer than those for powder. Rather, the
ratio relates to the amount of drug that triggers mandatory minimum
sentences. For example, selling 5 grams of crack carries a mandatory
minimum of five years, but it takes 500 grams of powder cocaine
to trigger the same five-year minimum. Smith said the 100-to-1
ratio results in sentences three to six times longer for crack.
The debate about that disparity is not new. In passing the
1986 Anti-Drug Abuse Act, Congress said crack was more addictive
than powder cocaine, more often linked to other serious crimes,
and more likely to be used by "vulnerable members of society"
because it's cheap, potent and easy to use. Critics challenged
those assumptions and called the disparity racist, saying it
produces harsher penalties for the black dealer selling crack
in Harlem than the white dealer peddling powder cocaine on Wall
Street.
The debate flared to life following the January U.S. Supreme
Court ruling in United States v. Booker that made federal
sentencing guidelines advisory rather than mandatory. Experts
say there's been no massive change in sentencing practice since
then. But judges in several states, including Rhode Island's
three active U.S. District judges, have varied from the sentencing
guidelines in crack cases.
Judge Smith joined those ranks Sept. 16 when he sentenced
Joshua J. Perry to 10 years in prison for possessing, with intent
to distribute, more than 5 grams of cocaine base within 1,000
feet of a school -- in this case, St. Raphael's Academy in Pawtucket.
The Supreme Court had issued its Booker ruling in January,
while the jury was deliberating in Perry's case. So once he was
found guilty, Perry faced the certainty of a 10-year mandatory
minimum sentence because he had a prior felony drug conviction.
But the rest was up to Smith. The new advisory sentencing guidelines
called for a sentence of 188 to 235 months (15 years and 8 months
to 19 years and months).
Through his lawyer, Perry argued that since the jury never
specifically determined the drug was crack, he should be sentenced
under powder cocaine guidelines, which call for just 33 to 41
months. But Smith said there was sufficient evidence to sentence
Perry under the crack guidelines.
LATER, in his analysis, Smith noted that the U.S. Sentencing
Commission has been urging Congress to overhaul crack sentencing
laws for more than a decade. For example, in 1995 the commission
voted 4 to 3 to urge Congress to equalize the penalties for crack
and powder cocaine, but Congress rejected the idea.
The commission called for narrowing crack/powder disparity
in a 2002 report, and Smith cited four findings in that report:
"First, the feared epidemic of crack cocaine never materialized
in the way it was envisioned by Congress. Second, the current
penalties sweep too broadly and apply too frequently to low-level
offenders. . . . Third, the current 100-to-1 ratio overstates
the seriousness of most crack cocaine offenses."
"Finally, the commission found that the current penalty
structure disparately impacts minorities," Smith wrote.
"While the commission conceded that it is difficult to empirically
study this issue, approximately 85 percent of the offenders sentenced
for crack cocaine violations are black (in the year 2000) and
that this leads to, at the very least, a perception that the
crack/powder disparity is racially motivated."
Smith said the commission's conclusions "are supported
by an overwhelming amount of authority -- empirical, scholarly
and otherwise. In fact, it is virtually impossible to find any
authority suggesting a principled basis for the current disparity
in sentences."
Smith said the debate about the crack/powder disparity is
no longer limited to criminal law circles. He referenced an Aug.
7 New York Times article by the authors of Freakonomics,
which noted that Congress had passed the crack laws in 1986 amid
"the national frenzy that followed the death of Len Bias,
the first-round NBA draft pick and a cocaine user." Since
then, the authors said, demand for crack has dropped, crack-related
violence has fallen, and young people have started shunning the
drug.
While the crack/powder disparity "has often been called
racist, since it disproportionately imprisons blacks . . . the
law probably made sense at the time, when a gram of crack did
have far more devastating social costs than a gram of powder
cocaine," the article stated. "But it doesn't anymore.
Len Bias would now be 40 years old, and he would have long outlived
his usefulness to the Boston Celtics. It may be time to acknowledge
that the law inspired by his death has done the same."
AS A JUDGE, Smith said he is required to consider sentencing
goals. And in Perry's case, he stated, "there is little
doubt that the advisory guideline range sentence (188 to 235
months) is substantially greater than necessary to reflect the
seriousness of the offense, to promote respect for the law and
to provide for adequate general and specific deterrence."
Smith said he recently sentenced a major cocaine dealer, Shawn
Montegio, to 188 months for the same crime that Perry was convicted
of, except the drug was powder cocaine. While Perry was caught
with 29.47 grams of crack, Montegio had 10 kilograms of powder
cocaine. "Without doubt, Montegio was a far more serious
criminal drug trafficker and a far more serious threat to the
community than Perry," Smith wrote. "Yet the guidelines
treat them as equivalent. This cannot be justified in any principled
way."
Smith concluded that the appropriate drug quantity ratio for
Perry was 20 to 1, which would yield an advisory range of 97
to 121 months (8 years and 1 month to 10 years and 1 month).
But he noted that the "floor" was set by the mandatory
minimum for being a repeat offender, so he sentenced Perry to
10 years.
Smith's ruling has been mentioned in the National Law Journal
and in Ohio State University law Prof. Douglas Berman's sentencing blog. And
that blog has noted the response of federal prosecutors in Rhode
Island.
U.S. Attorney Robert Clark Corrente's office has appealed
Smith's ruling. And while briefs haven't been filed yet, prosecutors
took aim at Smith's decision when they appealed sentences that
Chief Judge Torres issued in two similar cases, involving defendants
Shawn Lewis and Sambath Pho. On Nov. 2, Assistant U.S. Attorney
Donald C. Lockhart filed a 50-page legal brief in the Lewis and
Pho cases, including a section titled "Why Perry was wrongly
decided."
"First, the bulk of the Perry decision is devoted
to a policy discussion," prosecutors wrote, emphasizing
that policy matters should be handled by Congress, not the courts.
Also, prosecutors said, "it is simply not true that there
is no 'principled justification' for the 100-1 ratio." And,
conversely, there's no empirical basis for a 20-1 ratio, they
said.
Lewis pleaded guilty in June to possessing more than 50 grams
of cocaine base with the intent to distribute, and possessing
two handguns as a convicted felon. The guidelines called for
235 to 293 months in prison. But Torres sentenced him Lewis to
188 months. Pho pleaded guilty in June to possessing more than
5 grams of cocaine base with intent to distribute. Sentencing
guidelines called for 87 to 108 months. But Torres sentenced
Pho to 64 months.
In appealing, prosecutors said, "Conceivably, the district
court might have justified non-guidelines sentences by referring
to the facts of the particular cases and by applying the criteria
in [sentencing goals]. The sole justification that the court
gave, however, was that the 100-1 ratio was too harsh and that
it preferred a 20-1 ratio instead. That rationale, however well
meant, is unacceptable."
PROSECUTORS SAID the 100-to-1 ratio is "embedded in the
statutory mandatory minimums and maximums" and is "the
direct result of Congress' decision to punish crack offenses
more severely than powder offenses."
While the Sentencing Commission's 2002 report called for narrowing
crack/powder disparity, it also acknowledged that "differences
in intrinsic harms" associated with crack justified punishing
crack offenses more severely than powder cocaine offenses, prosecutors
wrote. For example, data compiled by the commission and the Justice
Department bore out the conclusion that crack is generally more
addictive than powder cocaine, the legal brief stated.
"Reasonable people may disagree over the relative merits
of the commission's recommendations and Congress' choices,"
prosecutors wrote. "It is beyond debate, however, that the
authority to classify the gravity of particular offense categories
and the severity of punishment rests exclusively with Congress."
Roger Williams University law school Prof. David M. Zlotnick,
whose sentencing research is cited in Smith's ruling, said he
considers the Perry sentence "rational, fair and just."
But he said Smith's ruling could be viewed as "a policy
decision" -- as opposed to a purely judicial ruling based
on case-specific facts -- that could "provoke a Congressional
backlash."
Zlotnick said a backlash would be unwarranted. Since Booker,
61.7 percent of sentences have been within guideline ranges,
compared to 65 percent before Booker, he said.
Zlotnick noted that President Bush in 2002 appointed Smith,
a longtime friend and political associate of Republican U.S.
Sen. Lincoln D. Chafee. And, he said, "The fact that it's
a Republican-appointed judge sends the message that this is not
some soft-on-crime or liberal wing of the judiciary."
Zlotnick, who has interviewed scores of federal judges about
sentencing issues, said, "The overwhelming majority of judges,
both Republican and Democrat, believe that the 100-1 ratio is
irrational." But following Booker, judges are nervous
about a congressional backlash, he said. "So crack provides
a crucible for that whole problem."
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