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November 25, 2007 - Citizens' Voice (PA)

New Crack Sentencing Guidelines Called 'Almost Inconsequential'

By Erin L. Nissley, Staff Writer

Return to Drug War News: Don't Miss Archive

Get caught dealing five grams of crack and you will get at least five years in a federal prison.

It would take a case involving 500 grams of powder cocaine to get the same minimum sentence.

It's a discrepancy critics say leads to harsher punishments for minorities and the poor, who experts say are more likely to buy and sell crack because it's cheaper and more potent than powder.

The U.S. Sentencing Commission eased the sentencing guidelines for crack dealers and users this month, dropping sentencing guidelines two levels for crack offenders. That's good news for the 350 people imprisoned on crack charges in the Scranton-based U.S. Middle District of Pennsylvania, all of whom could be eligible for early release.

What it does not affect, however, is mandatory minimum and maximum sentences for powder and crack. Those have to be changed by an act of Congress. And until then, the two-level drop in sentencing guidelines for crack cases is, as local attorney Joseph D'Andrea puts it, "almost inconsequential."

The mandatory minimums treat crack offenders 100 times more harshly than powder cocaine offender, and can only be changed through legislation.

Here in the Middle District of Pennsylvania, which includes Lackawanna, Luzerne, Wayne, Monroe and Susquehanna counties, there were sentencings in 133 crack cases from Oct. 1, 2006 through Aug. 30.

In the same time period, there were 70 sentencings in cocaine cases.

Almost 70 percent of defendants in those crack cases were black, and about 19 percent were Hispanic. About 12 percent were white, according to data kept by Len Bogart, chief U.S. probation officer in Scranton.

The mandatory minimum sentences for crack and cocaine were passed by Congress in 1986, just after crack began emerging in urban areas. Dealing crack was often associated with levels of violence that were unprecedented at the time, according to Columbia Law School Professor Daniel C. Richman, J.D., as dealers fought for territory and customers.

"There was a feeling in Congress that a crack epidemic was about to hit and we had to be prepared," Richman said.

Those fears never really came true, though, according to a 2002 report by the U.S. Sentencing Commission.

"The current penalty structure was based on many beliefs about the association of crack cocaine offenses with certain harmful conduct -- particularly violence -- that are no longer accurate," the report reads.

"In 2000, for example, three-quarters of federal crack cocaine offenders had no personal weapon involvement, and only 2.3 percent discharged a weapon."

No Significant Difference

Cocaine, or hydrochloride salt, is snorted or injected. Crack is made by dissolving powder cocaine in a mixture of water and ammonia or baking soda.

The mixture is boiled until a solid substance forms. The process removes the salt, which concentrates the drug, making it more attractive to users because crack is both cheaper and more potent.

But experts, including the U.S. Sentencing Commission, have concluded there's not much difference between crack and powder cocaine, though powder cocaine poses a lesser risk of addiction because it is usually snorted.

"There's no rational reason for the disparity ... and everyone knows it," said U.S. Rep. Robert C. Scott, D-Va., chairman of the House Judiciary Committee's Subcommittee on Crime, Terrorism and Homeland Security.

Scott is one of many who say the harsher penalties for crack offenses target minorities and the poor.

"On its face, the legislation doesn't target minorities," U.S. District Judge Thomas I. Vanaskie said. "But data shows that most crack defendants are minorities."

In its 2007 report to Congress, the U.S. Sentencing Commission noted that about 82 percent of crack offenders in 2006 were black and about 9 percent of crack offenders were white.

Making the Sentence Fit

Scott, who says he plans to hold hearings on the issue early next year, is not alone in calling for a harder look at legislation to close the gap between crack and powder cocaine sentencing minimums.

Sens. Orrin Hatch, R-Utah, and Patrick Leahy, D- Vt., have both asked the U.S. Sentencing Commission to examine federal cocaine penalties and study certain specific issues.

Scott, like many, feels the solution lies with getting rid of mandatory minimum and maximum sentences altogether, because the one-size-fits-all approach isn't sound.

Scott argues mandatory minimum and maximum sentences don't take into account the details of each individual case, nor do they allow for leniency when a defendant has made efforts toward rehabilitation after being arrested.

"Courts across the country are really struggling with this," Vanaskie said. "A 2002 report from the U.S. Sentencing Commission recommended that crack be treated the same as methamphetamine, a 20-to-1 ratio instead of 100-to-1."

That recommendation was never acted upon, Vanaskie said, and a federal appellate court said judges have to look at each case individually, though they cannot sentence someone to less time than the mandatory minimum sentence or more time than the mandatory maximum because those are set by legislators.

It's a ridiculous to have legislators making those decision, Scott said, because "they can't know how well that sentence fits" the particular circumstances surrounding any particular case.

Despite concerns from Scott and other members of Congress, local officials and national experts say it's unlikely that legislation lowering or abolishing mandatory minimum sentences for crack cocaine offenders will pass -- at least in the near future.

"Ninety-nine out of 100 people running for re-election won't vote to decrease penalties," D'Andrea said. "That's political suicide, even if it's the right thing to do."

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