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January 12, 2006 - Wall Street Journal (US)

Judges Show More Leniency On Crack Cocaine

By Gary Fields, Staff Reporter of The Wall Street Journal

Return to Drug War News: Don't Miss Archive

WASHINGTON -- In the wake of the Supreme Court's decision a year ago making sentencing guidelines advisory rather than requirements to be followed, some federal judges appear to be giving more lenient sentences in cases involving crack cocaine, according to an analysis released yesterday.

The study by the Sentencing Project, a Washington research and advocacy group for criminal-justice policy, may reinvigorate the debate about the racial disparity in sentences for crack-cocaine defendants, who are primarily minorities, and powder-cocaine defendants, who are more likely to be white and more affluent.

The study examined 24 crack-cocaine cases in which judges explicitly discussed the reasoning behind their sentencing decisions in the context of the 2005 Supreme Court ruling that allowed them to use the sentencing guidelines as advisory rather than as requirements.

In 21 of the 24 cases, the judges sentenced defendants to less time than they likely could have received under the sentencing guidelines. Under the guidelines, for instance, a person who possesses five grams of crack cocaine will get the same sentence as someone who sells 500 grams of powder cocaine -- although there is little physiological difference in the two.

Sen. Jeff Sessions, an Alabama Republican, said he intended to introduce a bill this year that will propose changing the law to reduce the disparity between the amounts of crack cocaine and powder cocaine necessary to give a defendant the same sentence. He and Utah Republican Sen. Orrin Hatch co-authored a bill in 2003 that would have reduced the disparity to 20-to-1 -- from 100-to-1 -- but it got little support.

"I still believe the guidelines are not appropriate on crack and powder cocaine," said Sen. Sessions. "I think we need to make some improvements there based on the reality of what's going on in the courts of America. This study does seem to indicate that judges would tend more to the 20-to-one ratio rather than 100-to-one."

The Sentencing Commission, which declined to comment on the study, has long supported altering its guidelines on crack-cocaine crimes to bring the penalties and amounts more in line with powder cocaine. In 1995, the Sentencing Commission sent Congress an amendment which would have equalized the penalties on the two forms of cocaine, but Congress rejected the amendment. Similar recommendations from the commission in 1997 and 2002 were ignored by Congress.

At least two of the cases highlighted in the study have been overturned by appeals courts in the past week. In one case, Rhode Island Chief District Court Judge Ernest Torres sentenced a crack-cocaine defendant to just over five years in prison, although the sentencing guidelines called for him to be sentenced to between seven and 12 years.

In handing down the sentence, the judge wrote that the 100-to-1 ratio was "excessive" and "not reasonable." However, a three-judge panel on the First Circuit Court of Appeals in Boston ruled last week that Mr. Torres had erred in handing down the sentence.

"Laboring in uncharted waters, the lower court jettisoned the guidelines and constructed a new sentencing range," the appeals court wrote.

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