Posted 4:30 PM by Howard Bashman

VIEW OF COMMISSIONER TACHA JOINED BY COMMISSIONERS GOLDSMITH AND CARNES, DISSENTING, IN PART, FROM AMENDMENT FIVE AND RELATED LEGISLATIVE RECOMMENDATION
We respectfully dissent and write separately to express our dismay that this question has been publicly framed by some as a racial issue. In our view, the sentencing issue turns on trying to craft a race-neutral sentencing policy that appropriately accounts for the societal harms associated with a particular crime. We deplore the socioeconomic factors associated with crack cocaine (as opposed to powder) that lead to different marketing patterns, different street-level dosages and prices, and the exploitation of vulnerable populations. We cannot, however, ignore the harms that are peculiarly associated with crack. The market, the dosages, the prices, and the means of distribution are elements of the drug's harm, and they cannot be discounted by simply saying that crack and powder cocaine are the same substance pharmacologically.

We joined in the Commission's Special Report to Congress: Cocaine and Federal Sentencing Policy, in which the Commission concluded, "the 100-to-1 quantity ratio that presently drives sentencing policy for cocaine trafficking offenses should be re-examined and revised."[FN.1] We write separately on Amendment Five and the proposed legislation to equalize statutory mandatory minimum penalties for crack and powder cocaine offenses, however, because we cannot endorse the proposed one-to-one quantity ratio for distribution offenses.[FN.2] Sentencing crack distribution offenses identically to powder cocaine distribution offenses fails to account for the increased harms associated with crack. Moreover, adjusting crack distribution sentences downward to parallel powder cocaine sentences provides for penalties that are, in our opinion, often too low.

FN.1: U.S. Sentencing Commission, Special Report to Congress: Cocaine and Federal Sentencing Policy 197 (Feb. 1995) [hereinafter Special Report].

FN.2: The reasons for retaining differential penalties for crack and powder cocaine distribution offenses, see infra, do not apply to possession offenses. Thus, we fully endorse equalization of sentences for crack and powder cocaine possession offenses.

In the Special Report, the Commission concluded that an inference can be drawn that "crack cocaine poses greater harms to society than does powder cocaine."[FN.3] At that time, the Commission stated that it may be possible to develop specific guideline enhancements to account for some or all of the increased harms associated with crack.[FN.4] The Commission also indicated, however, that "[i]f guideline enhancements cannot sufficiently account for harms associated with crack, the guidelines can provide an increased ratio through the base offense level."[FN.5]

FN.3: Special Report, supra note 1, at 195.

FN.4: Id. at 198-200.

FN.5: Id. at xv.

The Commission has now completed its self-appointed task of developing guideline enhancements. While the Commission has proposed new enhancements that take into account the use of a firearm and a defendant's use of a juvenile in the offense, in addition to bodily injury departure language, the Commission has been unable to account fully for the increased harmfulness of crack through guideline enhancements. Thus, consistent with the Special Report, a differential quantity ratio is required.

In the Special Report, the Commission identified several dangers associated to a greater degree with crack than with powder cocaine. Most importantly, the Commission found that, based upon common route of administration, crack is more addictive than powder cocaine.[FN.6] Because smoking crack produces more intense physiological and psychotropic effects than snorting powder cocaine, the Commission found that the crack user is more vulnerable to binging and dependency than persons who snort powder cocaine.[FN.7] Moreover, although powder cocaine, if injected, is equally as addictive as crack, injection of powder cocaine does not pose the same danger to society as does crack. Indeed, over three times as many people smoke crack than inject powder cocaine.[FN.8] This statistic confirms the common sense observation that a substance that can be smoked will always be inherently more appealing, particularly to first time users, than one which must be injected through a vein with a hypodermic needle.

FN.6: Id. at vi, 24-28.

FN.7: Id. at 28, 195.

FN.8: Id. at vi.

Addictiveness, however, is but one of the harms associated to a greater degree with crack than with powder cocaine. Another significant danger of crack is that, because of its ease of manufacture and relatively low cost-per-dose, crack is more readily marketable than powder cocaine to a greater segment of the population.[FN.9] That crack can be administered easily and sold cheaply has made it particularly appealing and accessible to the most vulnerable members of our society--i.e., the poor and the young.[FN.10] Indeed, 12- to 17-year-olds choose crack over powder cocaine more than any other age group.[FN.11] Additionally, more criminal activity, including violent crime, is associated with crack than with powder cocaine.[FN.12] Crack is also accountable for more emergency room visits than powder cocaine,[FN.13] and evidence suggests a high correlation between crack and a host of social harms including parental neglect, child and domestic abuse, and high risk sexual behaviors.[FN.14]

FN.9: Id. at viii.

FN.10: Id. at 195.

FN.11: Id. at 187.

FN.12: Id. at viii.

FN.13: Id. at 184. Although our Special Report also found, based upon very limited data, that "most cocaine-related deaths result from injection of powder," id., this factor alone does not convince us that crack is less dangerous to society than powder cocaine. In comparing the relative harms of these two substances, we have considered a variety of factors, some of which may offset one another. In our view, the higher death rate associated with powder cocaine is one of the factors that justifies bringing crack and powder penalties more in line with each other. In other respects, however, the higher death rate from powder is outweighed by the multitude of increased harms occasioned by crack.

FN.14: See id. at 189-91.

The Commission was unable to account for all of these harms through guideline enhancements. Indeed, the proposed enhancements only address, to a limited extent, the systemic crime associated with crack. Thus, a one-to-one quantity ratio allows crack distributors to go virtually unpunished for the addictiveness, ease of use, marketability, and physical and social harms associated to a greater degree with crack than with powder cocaine.[FN.15] We cannot support this result.[FN.16]

FN.15: The majority asserts that under a one-to-one ratio, "crack offenders will receive sentences that are, on average, generally at least twice as long as powder cocaine offenders involved with the same amount of drug." Statement of Commission Majority in Support of Recommended Changes in Cocaine and Federal Sentencing Policy 3 (May 1, 1995) [hereinafter Commission Majority]. This difference reflects the fact that crack defendants are more likely to have extensive criminal histories and are more likely to use weapons than powder cocaine defendants. The difference does not, however, reflect the fact that crack offenders sell a substance that is far more dangerous than powder cocaine.

FN.16: Interestingly, in the Special Report, the Commission indicated that crack's addictiveness and ease of use alone could support heightened penalties for crack distributors. See id. at 183 ("the higher addictive qualities associated with crack combined with its inherent ease of use can support a higher ratio for crack over powder").

Moreover, a one-to-one quantity ratio at the powder cocaine penalty level provides for insufficient punishment of crack distributors.[FN.17] For example, under a one-to-one quantity ratio, a criminal history category I mid-level dealer who distributes 100 grams of crack to other mid- or street-level dealers and pleads guilty,[FN.18] will face a guideline sentence of only eighteen to twenty-four months imprisonment. In addition, if the proposed one-to-one quantity ratio had been applied to federal crack defendants in 1994, over 73% would have been eligible for quantity-based sentences of less than five years imprisonment, and only 10% would have been subject to sentences of ten or more years.[FN.19] Conversely, of the federal powder cocaine defendants sentenced in 1994, less than 19% were eligible for quantity-based sentences of less than five years imprisonment, and over 45% were subject to sentences of ten or more years. Indeed, under a one-to-one penalty scheme, crack distributors may be eligible for lesser sentences than similarly situated powder cocaine defendants.[FN.20]

FN.17: The sentence calculations in this paragraph are guideline sentences based solely upon drug quantity. They do not take into account the current statutory 100-to-1 quantity ratio which, for example, subjects a crack dealer who distributes fifty or more grams of crack to a mandatory ten-year sentence.

FN.18: In 1994, over 75% of all crack defendants and over 80% of all powder cocaine defendants received sentence reductions for acceptance of responsibility.

FN.19: By comparison, under the 100-to-1 ratio, only 15% of federal crack defendants sentenced in 1994 were eligible for guidelines sentences of less than five years imprisonment, while 59% were eligible for sentences of ten or more years.

FN.20: This is so because, based upon Commission data, crack traffickers who occupy roles similar to their equally culpable powder cocaine counterparts, distribute smaller quantities of drugs. See View of Commissioner Goldsmith Dissenting from Amendment Five 3-4 (May 1, 1995).

Furthermore, even if Congress retains the current 100-to-1 statutory ratio for purposes of mandatory minimum sentencing, the proposed one-to-one ratio still has the potential of dramatically decreasing sentences for some crack distributors. Under §5C1.2 ("the safety valve"), drug offenders meeting certain criteria are exempt from statutory mandatory minimums and are instead sentenced directly under the guidelines. In the legislation authorizing the Commission to promulgate a safety valve guideline, Congress indicated that the guideline "shall call for a guideline range in which the lowest term of imprisonment is at least 24 months." Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, § 80001, 108 Stat. 1985, 1986 (1994) (emphasis added). But, under the proposed one-to-one ratio, many crack defendants who qualify for the safety valve will not, as Congress intended, receive guideline sentences of at least twenty-four months. Instead, all safety valve crack defendants who distribute less than 100 grams of crack (a quantity associated with more than 40 percent of federal crack defendants in 1994) will be eligible for prison terms of less than twenty-four months. In our opinion, this is contrary to both congressional intent and sound public policy.

The majority's rationale for a one-to-one quantity ratio appears to be that fairness dictates identical treatment of crack and powder cocaine defendants because crack and powder cocaine are pharmacologically the same drug.[FN.21] This is not the end of the inquiry, however. Penalties for drug offenses are not solely based on pharmacology. Instead, penalties are fashioned to account for the amount of societal harm attributable to a particular drug or form of drug.[FN.22]

FN.21: See Commission Majority, supra note 15, at 4-5.

FN.22: Indeed, providing varying penalties for different forms of the same drug based upon relative harmfulness is not unprecedented in the guidelines. See, e.g., U.S.S.G. §2D1.1(c) (assigning base offense levels for Methamphetamine, as compared to "Ice" [a different form of Methamphetamine] at a ten-to-one quantity ratio). We note that Methamphetamine bears a five-to-one ratio to powder cocaine and that "Ice" has a ten-to-one ratio to Methamphetamine, or a fifty-to-one ratio to powder. Thus, if a one-to-one ratio between powder and crack is adopted, crack will be punished at a ratio of fifty times less than "Ice."

Sentencing policy is not an exact science. It can only reflect our best judgment as to the appropriate sentences for particular criminal acts, taking into consideration the harms resulting from those acts and the related societal interests in deterrence and prevention. Regrettably, statistical evidence demonstrates that sentencing policy based on thoughtful, appropriate, and race-neutral factors may result in differing impacts on defendants according to race, socioeconomic group, and geographic area. These disparities in impact, however, cannot divert attention from our objective judgments about the underlying criminal activity and the attendant societal interests. In sum, because, as the Commission unanimously concluded in the Special Report, crack poses a greater threat to society than does powder cocaine, and because a one-to-one quantity ratio provides insufficient punishment for crack distributors, we respectfully dissent.