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February 19, 2006 - Worcester Telegram & Gazette (MA)

Cracks Exist In Drug Sentencing

By Lee Hammel

Return to Drug War News: Don't Miss Archive

Federal judges who believed that the U.S. Supreme Court's historic Booker decision freed them from the requirement to treat crack cocaine as 100 times more dangerous than powder cocaine have gotten a sharp rejoinder from the 1st U.S. Circuit of Appeals that the law of the land still penalizes blacks out of proportion.

Under federal law, possession of only 5 grams of crack cocaine, a crime for which blacks are disproportionately sentenced, sets off the same mandatory minimum penalty, 5 years in prison, as possession of 500 grams of powder cocaine, for which mostly whites are convicted. That means the same federal mandatory minimum of 5 years is given to someone dealing an average of 25 doses of crack cocaine as to someone dealing an average of 1,000 doses of powder cocaine, by Worcester police estimates.

The same 100-to-1 ratio is at work for an automatic 10-year ticket to federal prison, 50 grams of crack or 5 kilograms of powder cocaine, made only stranger by the fact that sentencing law in 36 states, including Massachusetts, makes no distinction between crack and powder cocaine.

A three-judge panel of the Appeals Court last month ordered a Rhode Island judge who ruled that he could substitute what he thought was a fairer 20-to-1 ratio to re-sentence two Rhode Island men in accordance with the mandated 100-to-1 ratio. The U.S. attorney in Rhode Island appealed the decision of U.S. District Judge Ernest C. Torres, who sentenced crack defendants in two unrelated Rhode Island cases to 14 months and 47 months, respectively, less than if he had applied the 100-to-1 ratio.

Federal judges from Worcester to Wisconsin have expressed anguish over the mandated formula: While in Worcester it is applied, lawyers have cited a Wisconsin federal judge's decision not to follow the 100-to-1 formula. Unless the appeals panel's decision is overturned by the full appeals court or the U.S. Supreme Court, it must be followed by federal courts in Massachusetts, Rhode Island, New Hampshire, Maine and Puerto Rico.

Three attempts by the U.S. Sentencing Commission to eliminate or reduce the ratio in the Anti-Drug Abuse Act of 1986 have fallen on deaf ears in Congress.

Notwithstanding complaints that the law was enacted two decades ago during near hysteria over the threat of crack cocaine to American cities and that it discriminates against blacks, the U.S. Justice Department has defended the measure against changes promoted by many, from the American Civil Liberties Union to the U.S. Sentencing Commission to an Alabama senator, Republican Jefferson B. Sessions III, who is a former U.S. attorney and former state attorney general.

As long as Congress keeps the law intact, not even the U.S. Supreme Court's Jan. 12, 2005, United States v. Booker decision that rendered federal sentencing guidelines advisory rather then mandatory has been able to protect crack cocaine defendants from lengthy incarceration. The 1st Circuit Appeals Court overturned Judge Torres when he ruled that the crack penalty under the 100-to-1 ratio is excessive and not reasonable.

No decision has been made on whether to appeal the Appeals Court decision in the cases of Rhode Island crack defendants Sambath Pho and Shawn Lewis, said Edward C. Roy Jr., Mr. Pho's public defender, on Friday.

Congress has faced political as well as legal arguments to reduce the discrepancy between crack cocaine and powder cocaine sentences.

Citing statistics that it said came from the U.S. Department of Health and Human Services and the U.S. Sentencing Commission, the Sentencing Project reported, Despite the fact that less than half of crack cocaine users in the general population are African American, more than 80 percent of persons convicted in federal court for crack cocaine offenses are African American. The Sentencing Project, a Washington-based nonprofit organization, advocates for alternatives to incarceration and sentencing reform.

The statistics did little good for Tyrone Shine William.

Mr. William, of 5 East Kendall St., Worcester, was charged in U.S. District Court in Worcester with conspiracy to distribute more than 50 grams of cocaine base, which the sentencing guidelines define as crack cocaine. With a previous narcotics conviction on his record, Mr. William faced not just 10 years, but a mandatory minimum of 20 years in prison.

His lawyer, Beverly B. Chorbajian, argued prior to the U.S. Appeals Court ruling that sentencing guidelines cannot be ignored that crack cocaine prosecutions are carried out primarily against minority defendants. She urged that a?ojudicial discretion and caution should be exercised in applying minimum mandatory of 20 years in order to avoid the decimation of the black male population in the United States.

Unfortunately for Mr. William, who is black, he was not sentenced until Jan. 27, after the Appeals Court ruled on the Rhode Island cases. By then, Assistant U.S. Attorney David H. Hennessy had placed into the William case file a copy of the Appeals Court decision and its ruling that the Supreme Court's Booker decision does not allow a district court to impose a sentence outside the guideline sentencing range based solely on its categorical rejection of the guidelines, disparate treatment of offenses involving crack cocaine, on one hand, and powdered cocaine, on the other hand Judge F. Dennis Saylor IV did not appear to be much happier than Mr. William over the two decades in a penitentiary to which he condemned Mr. William. There isn't the slightest doubt in my mind that I would not sentence Mr. William to 20 years in jail, but for the mandatory minimum, the judge said.

In fact, I am very unhappy to have to do that, he said, and if it were up to me, the crack cocaine-powder disparity would not be 100 to 1.

Kevin J. Fitzgerald, the Rhode Island federal public defender who represented Mr. Lewis, said he does not think he will continue to petition judges to treat crack cocaine compared with powder cocaine with the 20-to-1 ratio that Judge Torres employed.

With the Appeals Court noting that Judge Torres said the only reason for the reduced sentences was unhappiness with the 100-to-1 ratio, Mr. Fitzgerald said he will urge judges to look at other factors that he said remain valid, such as the nature of crack cocaine and the racial differential involved, and whether the crime involved violence.

Some lawyers have said judges can still evade the minimum mandatory sentence so long as they do not flout the U.S. Appeals Court dictate not to ignore the 100-to-1 ratio. Judge Saylor told Ms. Chorbajian, "The problem I'm having here is, I'm caught between my unhappiness at imposing this long sentence and the fact that I feel I need to play it straight.

Before being sentenced to 20 years, Mr. William regrettably took the opportunity to remind the judge that he had said 16 months earlier, at his investiture, that he would not substitute his personal views for the oath of office he took. Judge Saylor replied, "My personal view is that I would not sentence you to 20 years, and I feel that the law compels me to do that.

I do that with no enthusiasm, but because that's what I think I need to do to be faithful to the oath I took.

The Sentencing Project points out the racial discrepancies that show up in the federal courts. In a 2000 report, the Project quoted Sentencing Commission figures that about two-thirds of crack cocaine users are white or Hispanic, yet the vast majority of people convicted of possession in federal courts in 1994 were African-American.

Sentencing Commission figures show that in 2000, 84.7 percent of crack cocaine offenders are black, 9 percent are Hispanic, and 5.6 percent are white. By comparison, 30.5 percent of powder cocaine offenders in 2000 are black, 50.8 percent are Hispanic, and 17.8 percent are white.

The result of the combined difference in sentencing laws and racial disparity is that black men and women are serving longer prison sentences than white men and women, according to the Sentencing Project.

The U.S. Sentencing Commission believes the law is a mistake. It has made three unsuccessful recommendations to Congress to reduce the sentencing disparity between crack and powder.

In 1995, the Commission recommended that the 100-to-1 ratio enacted in the Anti-Drug Abuse Act of 1986 be eliminated entirely. After Congress refused, the Commission recommended a 5-to-1 ratio two years later. Congress took no action and the commission came back in 2002 with a recommendation of 20-to-1.

While Congress again ignored the commission's formula, at least a few federal judges have adopted it in their sentencing decisions.

For its position on the matter, the U.S. Justice Department still refers to the March 2002 testimony of Larry D. Thompson, then-deputy attorney general.

Mr. Thompson said two months before the Sentencing Commission's 2002 recommendation that the Justice Department believes the current federal sentencing policy and guidelines for crack cocaine offense are proper. It would be more appropriate to address the differential between crack and powder penalties by recommending that penalties for powder cocaine be increased.

"Reducing crack cocaine penalties would represent a retreat in our nation's fight against illegal drugs," Mr. Thompson said. He said the Justice Department had in mind the fact that minorities are more likely than others to be the victims of crime spawned by drugs, with blacks being the victims of 50 percent of the country's homicides.

While acknowledging that crack and powder are chemically similar, the deputy attorney general said crack causes more harm because of the way it is ingested and marketed. Being smoked rather than snorted, crack is more addictive, with one study showing 66 percent of crack addicts using it daily, compared with 18 percent of powder users snorting daily.

"Less expensive than powder cocaine, crack is particularly attractive to some of the more vulnerable members of our society," he said. He also said that weapons were involved in 21.3 percent of federal crack cocaine convictions in 2000, double the 10.6 percent rate for powder cocaine convictions.

The Sentencing Commission's 2002 report said that even though smoking crack is more addictive than snorting powder, the 100-to-1 ratio overstates the difference. It said that many of the predictions about crack, such as its effect on babies during pregnancy, were exaggerated in the overheated atmosphere of the 1980s. It said crack's negative prenatal effects are identical to those of powder cocaine and significantly less than previously believed. It said they are similar to those of prenatal tobacco exposure and less severe than those of prenatal alcohol exposure.

Use of crack by youth and students, especially as compared with powder, did not meet the dire predictions, it said. It recommended that, in tandem with reducing the mandatory sentence trigger ratios, greater penalties be assessed on the minority of defendants who sell any controlled substance to pregnant women or juveniles or in areas such as schools frequented by juveniles or who use juveniles in drug distribution.

With only 5 grams of crack cocaine triggering mandatory sentences, the commission said the effect defeats the intent of the 1986 law of targeting law enforcement resources on serious and major traffickers. Two-thirds of federal crack defendants were only street-level dealers, and only 5.9 percent of federal crack defendants subject to the 5-year minimum sentences performed manager or supervisor functions. Only 15.2 percent of those subject to 10-year minimums performed the functions of importer, high-level supplier, organizer, leader or wholesaler envisioned in the law, the commission stated.

It also said that two-thirds of crack cocaine offenders had no personal weapons involvement, and only 2.3 percent discharged a weapon.

The law is the sort of thing that happens when Congress acts in a panic, whether it is crack cocaine or the Sept. 11, 2001, attacks, said Ronal C. Madnick of the Central Massachusetts Chapter of the American Civil Liberties Union. "The solution is, put the discretion back into the hands of the judges," he said.

Appeals Court Judges Bruce M. Selya, Kermit V. Lipez and Jeffrey R. Howard ruled in the Rhode Island case that in our constitutional system, the power to define penalties for federal crimes belongs to the legislative branch of government, not the judicial branch. The decision of which ratio to employ is a policy judgment, pure and simple, Judge Selya wrote, and the district court's categorical rejection of the 100-to-1 ratio impermissibly usurps Congress judgment about the proper sentencing policy for cocaine offenses.

Ironically, for those seeking uniformity between crack and powder offenses, the appeals court ruled that if each judge could decide which ratio to use, it would undermine congressional intent to promote uniformity in federal sentences.

"Congress intended that particular disparity to exist, and federal courts are not free to second-guess that type of decision," Judge Selya wrote. "While we share the district court's concern about the fairness of maintaining the across-the-board sentencing gap associated with the 100-to-1 crack-to-powder ratio, the proper place to assuage that concern is in the halls of Congress, not in federal courtrooms.

Apparently that's exactly what will happen. Michael Brumas, a spokesman for Mr. Sessions, a member of the Senate Judiciary Committee, told the Telegram & Gazette last week he plans to introduce a bill to reduce the disparity in sentencing for crack and powder this year.

Sen. Sessions was a former federal prosecutor, and he saw the impact firsthand that harsh mandatory sentencing has on the friends and family members of those who dealt with large quantities of cocaine. Many times, a mother or a girlfriend would be sentenced to a mandatory prison sentence because their son or boyfriend had simply left drugs at their house.

"Although these people played a minimal role, they were sentenced to time in prison," Mr. Brumas said. "And many times prosecutors couldn't get the person who was actually dealing drugs for this very reason."

Sen. Edward M. Kennedy, D-Mass., also a member of the Judiciary Committee, has voted against merely reducing the disparity, because he favors eliminating it entirely because of the massive racial discrimination that results, a spokeswoman said.

Worcester lawyer James J. Gribouski said, "It's unfortunate that Congress hasn't taken the initiative to change the laws."

In the meantime, an end to the arguments about the injustice of the law is not likely, despite the ruling of the Appeals Court last month. "If there are contrary decisions in other circuits, we'll continue to raise the issue in order to preserve it, to see if the Supreme Court will straighten it out," said Framingham lawyer John H. LaChance.

"Everybody will continue to raise the issue in their sentences, pending a final determination of that case," he said.

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