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January 13, 2006 - Drug War Chronicle (US)

In the Wake of Booker, Some Small Relief for a Small Fraction of Federal Crack Cocaine Offenders

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Last year's Supreme Court decision in the Booker and Fanfan cases, where the high court held that federal sentencing guidelines would no longer be mandatory but only advisory, threatened to cause an explosion on Capitol Hill. Mass incarceration-loving congressmen worried darkly that tens of thousands of nonviolent drug offenders would not get enough time in prison if federal judges were allowed the least bit of leeway in deciding sentences. What was needed was a "fix" for Booker to ensure that low-level drug offenders got the hammering they deserved, with no opportunity for bleeding heart judges to let things like the defendant's personal history or the circumstances of the crime get in the way of decades in prison.

A study of sentencing decisions in federal crack cocaine cases released this week by The Sentencing Project suggests those worries were, for the most part, overheated. In a very small sample of some 24 cases in which judges wrote sentencing memoranda to explain their sentencing decisions, the study found that the crack offenders were still doing long prison sentences, but that those sentences were less than those called for in the federal guidelines.

More than 5,400 people were sentenced on federal crack charges in 2003, the last year for which statistics are available. In one of the drug war's most notorious inequities, those offenders are subject to the 100:1 disparity in sentencing for crack and powder cocaine cases. Under the guidelines, five grams of crack will get you a five-year sentence, while it takes a pound of powder cocaine to earn the same penalty.

"Our study clearly shows that judges are still handing down severe sentences," said Sentencing Project analyst and study coauthor Ryan King. "Any fear of a new leniency in the criminal justice system because of Booker is unfounded. If you look at the cases we examined, the average sentence for a crack offense was 11 years," he told DRCNet. "But what these cases show is that in many cases the sentencing guidelines don't take into account the circumstances of the offense or the history of the offender. Now, judges can take these things into account and calibrate the sentences in a slightly more just fashion."

Based on the results of the study, the study's authors concluded, "There is no need for a Booker "fix" since judges appear to be imposing harsh penalties in serious cases, but distinguishing these from those cases in which the defendant is less culpable."

That was a position that earned no argument from defense attorneys. "We don't need a Booker 'fix'," said Jack King of the National Association of Criminal Defense Lawyers. "What we need is to get rid of the mandatory minimum sentences, so judges can sentence fairly on the facts of the case rather than just the weight of the drugs."

Even under the post-Booker system, most crack offenders see no sentence reductions. According to the Sentencing Project, three-quarters of them have the bottom end of their sentences limited by mandatory minimums.

"Judges may have a little more discretion as a result of Booker," said Jack King, "but they can't go below statutory minimums. A lot of judges see the mandatory minimums as too high in many cases, and regret having to sentence people so severely."

"Mandatory minimums are still an obstacle," agreed Ryan King, "and that is something that still needs to be addressed in policy reform. Booker permitted judges to depart from the guidelines to bring sentences down to a more reasonable range, but because they can't do anything about mandatory minimums, judges are still having to hand down more severe sentences than they would like."

Beyond addressing mandatory minimum sentences, said King, the obvious thing to do is redress the disparity in sentences for crack and powder cocaine offenses. Indeed, in addition to recommending that there is no need for a congressional "fix" for Booker, this week's Sentencing Project report recommended that "Congress should reconsider the crack/powder cocaine sentencing disparity in order to expand the range of cases in which judges can consider individual case characteristics."

For some observers, sentencing reforms are necessary, but not sufficient. "Booker allows judges some discretion to depart downward from the sentencing guidelines, but their discretion is very limited and you still have people serving terribly long sentences," said Nora Callahan, director of The November Coalition, a drug reform group focused on the plight of federal prisoners. "The sentencing structure is terrible, the amount of time the guidelines recommend for drug offenses is just crazy, and then you have mandatory minimums, too," said Callahan.

"People keep talking about whether we need to 'fix' sentencing, but by the time you get to that point, you're screwed anyway. Sentencing reforms are trying to fix things on the back end, but we need to be looking at the front end. The root of the problem is policing," she said. "All this time, we've been running around saying how bad it was that discretion had moved from judges to prosecutors, but that discretion has really moved even further, to the police and their informants, who decide who to arrest and what charges they will face. Sentencing reform is only half of the discussion. We have to be talking about policing reform, too."

The US Sentencing Commission has expressed similar concerns. In a November 2004 report, "Fifteen Years of Guidelines Sentencing," the commission noted that police knowledge of sentencing guidelines and predictable sentences allows law enforcement to "[manipulate a] defendant's sentencing exposure during the investigation phase." The commission called this "a significant source of continuing disparity in the federal system" and gave an example of how it might work: "For example, rather than arrest a drug seller when his crime first becomes known, police could choose to make additional purchases until the quantity of drugs involved reaches the amount needed to trigger the sentence the police believe appropriate."

The whole system needs a harsh spotlight cast upon it, said Callahan. "We have created a system where the police and the prosecutors hold real power and the judges are basically just clerks, and it all happens in the dark. Did Congress intend to let police capitalize on drug crime in every town in America, let people deal drugs until the police think they have a heavy enough charge, and effectively determine how long they will be in prison?" Callahan asked.

"If we are going to fix this, there has to be transparency in policing and prosecutions. The police can't keep making secret deals with informants. Prosecutors can't do plea bargains behind closed doors," she continued. "We're already the surveillance society -- we have cameras recording us walking across the street, going to the 7-11, even in changing rooms in stores. If we can videotape dressing rooms, we can and should videotape these secret deals. If they can't stand the light, what does that tell us? Did they threaten to put his mama in prison? Did they beat him? Let's roll the tape."

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