New Guidelines to Reduce Sentences in Crack-Cocaine Cases

A federal panel has approved changes to the sentencing guidelines for defendants convicted in crack-cocaine cases, taking another step toward shrinking the disparity between crack- and powder-cocaine sentences.

The changes could have a particular impact in Philadelphia because many more federal drug defendants here – 32 percent as opposed to 22 percent nationally in fiscal 2009 – have been charged with crack offenses rather than powder-cocaine offenses.

Crack convictions have generally drawn longer prison terms, with the average sentence for crack being 10 years, as opposed to seven for powder.

Among defendants convicted of crack offenses, the overwhelming majority are black.

In response to a new law, the U.S. Sentencing Commission approved a temporary, emergency amendment to sentencing guidelines last week effective Nov. 1. (It will expire on Nov. 1, 2011, but the commission will consider a permanent amendment in the coming year.)

The law – the Fair Sentencing Act of 2010 – was signed by President Obama on Aug. 3.

It reset the quantities of crack that trigger mandatory minimum prison sentences of five and 10 years, respectively, from five grams to 28 grams, and from 50 grams to 280 grams.

The law and amendment address what many in the criminal-justice system call an injustice.

"It further educates people about disparity and the recognition of disparity," said Leigh M. Skipper, the chief federal defender in Philadelphia.

The disparity dates to a drug-abuse law passed in 1986.

At the time, crack – a cheap way to get high – had become the rage. Congress responded with a law that produced a 100-to-1 ratio: Get caught with five grams of crack – roughly the weight of two sugar cubes – and get a mandatory five-year prison sentence. By comparison, it would take 500 grams of powder cocaine to get the same sentence.

The new law reduces the ratio to 18-to-1 but doesn't apply to defendants currently incarcerated on crack offenses.

"The first test is whether Congress will finish the job on crack reform and apply the law retroactively," so that those already incarcerated and serving stiff sentences get "due relief," said Julie Stewart, president of Families Against Mandatory Minimums.

The Department of Justice said that the law makes the federal criminal-justice system "more fair" and urged the Sentencing Commission in a letter this month to hew explicitly to the law in implementing guidelines.

The commission estimates that the new average sentence for trafficking in crack will be 101 months, or a 14 percent decrease in average sentence length. (Under current guidelines, the average crack-trafficking sentence in the federal district court here is 121 months.)

The sentencing law also repealed the five-year mandatory minimum for simple possession of crack, and increased sentences for drug offenses involving vulnerable victims, violence and other aggravating factors.

Judges have been paring crack sentences for several years.

In December 2007, the U.S. Supreme Court ruled that judges could impose shorter sentences for crack, and the Sentencing Commission reduced by two levels the recommended range of sentences to be considered by a judge.

Many crack defendants subsequently asked courts to reduce their sentences.

According to a Sentencing Commission report last month, 217 of the 266 applications filed in the Eastern District of Pennsylvania since 2008 have been approved, resulting in an average sentence reduction of 26 months.

The report said that nationally, 86 percent of the petitioners were black, meaning African-Americans are mostly getting disparate prison sentences for crack convictions.

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