Pubdate: Wed, 24 Oct 2007
Source: Times and Democrat, The (SC)
Copyright: 2007 by the American Forum
Author: Kara Gotsch
Note: Kara Gotsch is the director of advocacy at the Washington-based 
Sentencing Project.
Bookmark: (Cocaine)
Bookmark: (Mandatory Minimum Sentencing)


This month the Supreme Court heard a case that touched on a 20-year-old 
controversy involving justice and crack cocaine.

The court will rule early next year in Kimbrough vs. United States whether 
a federal district judge's more lenient sentencing decision, based on his 
disagreement with policy that punishes crimes involving crack cocaine more 
harshly than those involving powder cocaine, is reasonable.

The case will help judges determine their ability to sentence below an 
advisory guideline range. Unfortunately, the outcome will leave in place 
the excessive mandatory penalties that the Kimbrough judge found unjust.

The case of Derrick Kimbrough stems from his 2005 guilty plea in Virginia 
for possession with intent to distribute 56 grams of crack cocaine and 
possession of a firearm. Kimbrough, a Desert Storm veteran with no previous 
felony convictions, was prosecuted in federal court where penalties 
involving crack cocaine are harsher than in state systems. As a result, 
instead of receiving a sentence of about 10 years under Virginia law, he 
faced a federal sentencing guideline range between 19 and 22 years.

Federal District Judge Raymond A. Jackson, who presided over Kimbrough's 
case, called the recommended guideline sentence "ridiculous" and instead 
sentenced Kimbrough to 15 years, the minimum required by mandatory 
sentencing laws.

The sentencing range in this case and many other drug-related cases is tied 
to mandatory minimum sentences passed by Congress in the 1980s. Lawmakers 
intended to impose tough penalties on high-level drug market operators, 
such as heads of drug organizations and major drug traffickers.

However, the small quantities that trigger mandatory minimum sentences for 
crack cocaine offenses largely entangle defendants with bit roles in the 
crack trade. In 2006, more than 60 percent of federal crack cocaine 
defendants had only low-level involvement in drug activity, such as 
street-level dealers, couriers or lookouts. State criminal justice systems 
are well equipped to handle these kinds of cases but are unable to pursue 
the importers and international traffickers who bring drugs into the country.

Stopping drugs from crossing America's borders is the domain of federal law 
enforcement, but federal resources are being misdirected.

Had the drugs Kimbrough possessed been solely powder cocaine the amount 
would not have triggered a mandatory minimum sentence or the lengthy 
sentencing guideline range. Indeed, it takes 5,000 grams of powder cocaine, 
100 times the amount of crack cocaine Kimbrough possessed, to warrant a 
10-year mandatory. This dramatic sentencing disparity exists despite the 
fact that the drugs are pharmacologically identical -- crack is made by 
cooking powder cocaine with baking soda and water. Both drugs produce 
equally harmful effects on the body.

Is 10 years in prison for a nonviolent drug offense money well spent? The 
U.S. Justice Department says yes, but many in Congress disagree and a 
bipartisan group is seeking to change the crack cocaine sentencing law. 
Since May, three proposals to reform sentencing laws have been introduced 
in the Senate. Each bill would reduce the quantity disparity between crack 
and powder cocaine necessary to trigger a mandatory minimum sentence.

One proposal that would equalize the penalties for crack and powder cocaine 
goes the farthest to shift federal law enforcement focus from street level 
dealers, like Mr. Kimbrough, toward high-level traffickers.

The momentum in Congress is buoyed by a recent report from the U.S. 
Sentencing Commission which finds the penalties for cocaine offenses 
"overstate the relative harmfulness of crack cocaine" and "sweep too 
broadly and apply most often to lower level-offenders." The commission has 
recommended statutory reforms to Congress and has proposed an amendment to 
decrease the guideline offense level for crack cocaine offenses.

The amendment could reduce crack sentences by 15 months on average and 
would go into effect Nov. 1 as long as Congress does not act to reject it. 
However, it would not change the statutory mandatory minimums.

The Supreme Court's consideration of the magnitude of discretion afforded 
to federal judges is a step towards creating a more just sentencing system. 
However regardless of the Court's action on this case, without Congress 
altering the harsh mandatory penalties for crack cocaine offenses, 
America's sentencing policy will remain unreasonable.

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Kara Gotsch is the director of advocacy at the Washington-based Sentencing 
Project. Copyright 2007 by the American Forum.
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