The tremendous and unfair disparity between crack and powder cocaine in the Federal Sentencing Guidelines is no more! For many years, the Federal Sentencing Guidelines for offenses involving the possession or sale of crack cocaine were exponentially more severe than the guidelines for offenses involving only powder cocaine. For example, a defendant with no prior criminal record who possessed a kilo of crack cocaine would face a guidelines sentence of between 15 – 20 years without parole. That same defendant would face a sentencing range of between 5 – 6 years if he possessed a kilo of cocaine powder.
For years, criminal defense attorneys, interest groups, and even many federal judges objected to the disparity, noting that there was no rational basis to treat crack cocaine differently from powder cocaine. Statistics revealed that the disparity adversely affected African Americans, who were most often charged with offenses involving the crack cocaine guidelines.
On December 12, 2007, the United States Sentencing Commission announced that it was retroactively reducing the sentencing guidelines for crack cocaine offenses. While there was still a substantial disparity between crack and powder cocaine, the Sentencing Commission’s actions were promising and were the first official recognition that the disparity between crack and powder cocaine was a problem that needed to be resolved.
On May 1, 2009, the Department of Justice (DOJ) did just that. In a memorandum to all United States Attorney’s offices across the country, the DOJ instructed all federal prosecutors to “inform courts that the Administration believes Congress and the U.S. Sentencing Commission should eliminate the crack powder disparity . . .” That is, federal prosecutors are now instructed to inform sentencing courts that they agree that the disparity between crack and powder cocaine should be eliminated. The impact of this new policy is going to be dramatic.
This has also given federal criminal defense lawyers a powerful new weapon in federal sentencing hearings. Defense lawyers need to be vigilant and make sure that AUSAs comply with the new directive from the DOJ and tell thee Court that the DOJ believes that the disparity between crack and powder cocaine is unfair and should be eliminated. Federal defense lawyers should also be vigilant to prevent AUSAs from circumventing the new directive by arguing for sentences within the disparate crack guidelines for reasons set forth in 18 U.S.C. 3553. Because AUSAs have been so completely reliant on the guidelines to dictate sentencing recommendations, it will likely be very difficult to articulate aggravating sentencing factors in non-violent narcotics cases.
The bottom line is that federal criminal defense attorneys need to be prepared to make effective use of this sea change in the DOJ’s approach to cocaine prosecutions. The attorneys at Silverman, Thompson, Slutkin & White are all experienced courtroom lawyers whose skills have been consistently recognized as outstanding by our peers. I have spent almost 20 years in federal courts – first as a federal prosecutor and then as a federal criminal defense attorney. Our courtroom results have been significant and we stand ready to help clients through the difficult times of federal investigations and prosecutions. You can contact Andrew C. White directly at (410) 576-2200 if you have questions or wish to discuss a case in any district in the United States.