Federal Cocaine Offenses: An Analysis of Crack and Powder

U.S. Department of Justice

FEDERAL COCAINE OFFENSES:

AN ANALYSIS OF CRACK

AND POWDER PENALTIES

March 17, 2002

FEDERAL COCAINE OFFENSES:

AN ANALYSIS OF CRACK AND POWDER PENALTIES

TABLE OF CONTENTS

EXECUTIVE SUMMARY

....................................................

iii

INTRODUCTION

............................................................

1

PART I. BACKGROUND

.................................................

2

A. Pharmacology

.....................................................

2

Dosage

..........................................................

4

UseData

.........................................................

5

Race Data

........................................................

6

F. Trafficking Data

...................................................

7

F. Data on Related Violence

...........................................

8

PART II. LEGISLATIVE AND STATUTORY BACKGROUND

................

10

A. The U.S. Sentencing Guidelines and the Mandatory Minimum Penalties

......

10

B. The Federal Sentencing Scheme

.....................................

11

C. Legal Challenges

.................................................

14

Past Legislative and Commission Proposals to Amend

....................

17

Current Proposals to Amend ........................................

18

PART III: DATA AND FINDINGS

..........................................

19

A. General Characteristics of Crack and Powder Sentences

..................

21

Comparison by Amount of Drug

.....................................

23

Comparison by Specific Offender Characteristics

........................

24

Brief Analysis of Proposals to Amend the Federal Sentencing Scheme

.......

26

CONCLUSIONS

.............................................................

29

FEDERAL COCAINE OFFENSES:

AN ANALYSIS OF CRACK AND POWDER PENALTIES

EXECUTIVE SUMMARY

Public debate over sentences for federal cocaine offenses has focused on the 100:1

differential in the amounts of powder and crack cocaine that trigger the 5-and 10-year mandatory

minimum sentences. The 100:1 differential in powder and crack cocaine amounts at sentencing is

commonly distorted to imply that sentences for crack cocaine are vastly greater than sentences for

powder cocaine. A closer examination of the federal penalty structure for cocaine offenses reveals

that the 100:1 differential is misleading. A facial comparison of the guideline ranges for equal

amounts of crack and powder cocaine reveals that crack penalties range from 6.3 times greater to

approximately equal to powder sentences.

In order to determine how this facial disparity played out in actual sentences, the Office of

Legal Policy (with assistance from the Bureau of Justice Statistics and the Criminal Division's Office

of Policy and Legislation) conducted a number of different analyses of the federal sentencing data

for cocaine offenses collected by the U.S. Sentencing Commission between 1996 and 2000. The

results of these analyses demonstrate that:

Controlling for like amounts of cocaine, in 2000, crack defendants convicted

of trafficking in less than 25 grams of cocaine received an average sentence

that was 4.8 times longer than the sentence received by equivalent powder

defendant. The ratio between average crack and powder sentences for

defendants convicted of trafficking in between 15 and 49.9 kilograms of

cocaine was 2.4:1.

For defendants who possessed weapons, the ratio between average crack and

powder sentences for lower amounts of cocaine was 2.9:1. For the highest

amounts of cocaine, the ratio was only 1.6:1.

For defendants with the highest criminal history levels, the average sentence

for crack defendants ranged from 1.6 to 1.3 times longer (depending on the

amount of cocaine) than the average sentence for similarly-situated powder

defendants.

For defendants with the lowest criminal histories, the ratio between average

crack and powder sentences for the lowest amounts of drug 8.3:1. (This

disparity affected 1,637 (or 7%) of the 22,896 crack defendants examined in

this study.) But for offenders convicted of trafficking in higher amounts of

cocaine, the ratio of average crack to powder sentences was only 2:1.

111

Crack cocaine is an especially dangerous drug. It is more likely to be psychologically

addictive than powder cocaine, and it is more likely to result in chronic, heavy use. In 1999, about

73% of all individuals admitted into those state treatment organizations that receive federal funding

used crack. Crack is often sold in small quantities - rocks for between $3 and $35. By contrast,

powder cocaine is sold by the gram (grams cost, on average, about $100). And crack cocaine use

is more associated than powder cocaine use with systemic violence. For instance, in 2000, crack

defendants were twice as likely to possess or use a weapon as powder defendants.

If the debate over the appropriate sentences for crack and powder is to have any real meaning,

it must be based on actual data, and it must take into account the more dangerous nature of crack

cocaine. This paper aims to contribute to the larger policy debate by presenting data reflecting the

actual ratio between crack and powder cocaine sentences.

INTRODUCTION

The sentences imposed in federal cocaine cases are based on a combination of sentencing

guidelines and statutory rules (referred to throughout this paper as the "federal sentencing scheme").

The U.S. Sentencing Guidelines (the "Guidelines") specify ranges of imprisonment based on offense

and offender characteristics. A set of overlapping statutes define the federal cocaine offenses -

possession of cocaine base and trafficking in cocaine base or cocaine powder - and prescribe

mandatory minimum and maximum penalties that may be imposed for these offenses.

These mandatory minimums establish two tiers of mandatory prison terms for first-time drug

traffickers:

a five-year minimum sentence for individuals convicted of trafficking

grams of

cocaine base or 500 grams of powder, and

a ten-year minimum sentence for individuals convicted of trafficking 50 grams of

cocaine base1 or 5,000 grams of power.

The Guidelines are based on the mandatory minimums in a way that perpetuates the 100:1

differential in the amount of powder and crack cocaine required for the imposition of a given

sentence. Thus, for instance, a first-time, non-violent offender convicted of trafficking in 15,000

grams

(15

kg.) of powder cocaine or 150 grams of crack cocaine would face the same penalty range

of 151 to 188 months.

The federal sentencing scheme has been criticized on several fronts. Congress's decision to

treat crack offenses more severely than powder offenses has been criticized on the basis that crack

and powder are pharmacologically identical. The degree of addictiveness and pattern of abuse of

cocaine is attributed to the method of ingestion

(i.e.

smoked and injected vs. snorted), rather than the

form of the drug

(i.e.

powder or crack). In addition, Blacks make up a majority of crack cocaine

defendants, and the fact that crack cocaine is treated more severely than powder is criticized as

having a disproportionate impact on Blacks. Finally, the sentencing scheme is criticized because of

evidence that the mandatory minimums apply to low-level crack dealers, rather than the mid-level

dealers the legislative history indicates that Congress intended to reach.

Proposals to amend the federal sentencing scheme for crack and powder cocaine offenses

have focused primarily on changing the underlying ratio between powder and crack cocaine amounts.

This paper aims to contribute to the larger policy debate by presenting data reflecting the actual ratio

between crack and powder cocaine sentences. To collect this data, the Office of Legal Policy (with

The federal statutes defming cocaine offenses distinguish between cocaine powder and "cocaine base."

Cocaine base technically occurs in two forms: freebase cocaine and crack cocaine. In 1993, the Sentencing Commission

amended the sentencing guidelines by clarifying that, for the purposes of the guidelines, "cocaine base" means crack

cocaine.

See

United States Sentencing Commission Guidelines Manual (U.S.S.G.) § 2D1.1(c) (Nov. 1, 1993)

assistance from the Bureau of Justice Statistics and the Criminal Division's Office of Policy and

Legislation) conducted a number of different analyses of the federal sentencing data for cocaine

offenses collected by the U.S. Sentencing Commission between 1996 and 2000. The analyses

described in this paper attempt to compare crack and powder sentences for like amounts of cocaine.

These analyses show that, examined on this basis, crack cocaine sentences are between 1.3 and 8.3

times longer than powder cocaine sentences, depending on the amount of cocaine involved and the

specific characteristics of the offender.2

PART I. BACKGROUND

This section provides background data on the pharmacology, use, trafficking patterns, and

violence associated with both powder and crack cocaine. This brief discussion provides the broader

context for the data and observations about the sentences for crack and powder cocaine offenses

presented by this paper.

A. Pharmacology

Cocaine is a naturally occurring substance that is derived from the leaves of erythroxylon

plants indigenous to South America.3 Pharmacologically, cocaine is (1) a potent analgesic and (2)

a powerful stimulant.4 Cocaine alkaloid is available in many forms: coca leaves, coca paste, powder

cocaine, and cocaine base.5 Cocaine powder and cocaine base are the two forms most commonly

abused in the United States.

Powder cocaine

is a white, powdery substance that is produced by combining coca paste and

hydrochloric acid.6 Powder cocaine is usually abused by snorting (intranasal administration) or by

dissolving in water and injecting into a vein (intravenous administration). Powder cocaine cannot

be smoked.7

Cocaine base

is produced from powder cocaine and is abused by smoking. It occurs in two

forms: freebase cocaine and crack cocaine.8

Freebase cocaine is derived from powder cocaine that has been dissolved in water

and ammonia and combined with ether. Ether is a highly volatile and flammable

2 Not controlling for amount, the average crack sentence is 1.6 times longer than the average powder sentence.

United States Sentencing Commission (U.S.S.C.),

Special Report to the Congress: Cocaine and Federal

Sentencing Policy 7

(February

1995). See also

Dorothy Hatsukami & Marian Fischman,

Crack Cocaine and Cocaine

Hydrochloride: Are the Differences Myth or Reality,

276 JAMA 1580, 1582 (1996).

U.S.S.C.,

supra

n.3, at

Id.

at 9-li.

Id.

at 12.

Id.

Id. at 13.

solvent that will ignite or explode if the freebase cocaine is smoked before the ether

has evaporated entirely.9

Crack cocaine, by contrast, can be easily and safely manufactured in a home

microwave by combining powder cocaine, water, and baking soda and drying the mix

into a solid mass. This mass is "cracked" into rocks which are then smoked. One

gram of powder cocaine yields approximately .89 grams of crack cocaine.10

The effects

produced by cocaine are largely dependent on how much and how fast the

cocaine reaches the central and peripheral nervous systems.

Smoked cocaine results in the quickest onset and fastest penetration. Generally,

smoked cocaine reaches the brain within 20 seconds; the effects last for about 30

minutes.11

Intravenously administered cocaine reaches the brain within one minute; the effects

are also sustained for about 30 minutes.12 Intravenous administration results in

greater bioavailability than smoked cocaine -40 to 70 percent of smoked cocaine is

destroyed by heating or is not inhaled.13

Intranasally administered cocaine has a slower onset. The maximum psychotropic

effects are felt within 20 minutes and the maximum physiological effects within 40

minutes. The effects from intranasally administered cocaine usually last for about

60 minutes after the peak effects are attained. Only about 30 to 60 percent of the

amount of cocaine snorted is bioavailable.'4

Although intravenously administered and smoked cocaine result in similar effects, smoking

cocaine is easier. (A crack smoker is spared the difficulty of repeatedly filling a syringe and locating

a good injection site). At least one study has shown that smoking crack cocaine is more likely to be

psychologically addictive and lead to chronic, heavy cocaine use than the predominant method for

administering powder cocaine (snorting).'5

Although cocaine is not physiologically addictive, it is psychologically addictive. The

euphoric effects of the drug result in intense psychological cravings that supersede any adverse

effects that may occur on account of increased dependence on the drug. The pattern of cocaine abuse

Id.

Id. at

14.

Id. at2O.

Id.

at2l.

Id.

at22.

Id. at

20-21.

15 For example, one study showed that 66% of crack users smoked on a daily basis, but only 18% of cocaine

snorters used on a daily basis.

See

Hatsukami & Fischman,

supra

n. 3, at 1583.

by any method is associated with escalation in the amount of cocaine used and increased frequency

of use.

B. Dosage

Because of the pattern of escalation in the amount and frequency of use that is associated

with cocaine abuse, determining what constitutes a single dose of cocaine is complex. The Drug

Enforcement Administration has concluded that it is "reasonable" to assume 100 mg as the dosage

unit for crack or powder cocaine.'7

Crack cocaine:

The Drug Enforcement Administration's general dosage estimates indicate

that

grams of crack - the amount that triggers the five-year mandatory minimum - contains

between 10 and 50 dosage units.18 A single dose of crack cocaine ranges from 100 to 500

milligrams.19 DEA intelligence indicates that a crack user is likely to consume anywhere from 3.3

16.5

grams of crack a week.2°

Powder cocaine (injected):

500 grams of powder - the amount that triggers the five-year

mandatory minimum - contains between 1,000 and 5,000 individual doses, and a typical dose of

powder cocaine ranges from 30 to 150 milligrams.2' The typical intravenous cocaine user injects

between 7.2 and 9.6 grams of cocaine per week.22

Powder Cocaine (intranasal):

A line of cocaine consists of between 40 and 50 milligrams,

and a typical user snorts between two and three lines at a time.23 The typical intranasal powder user

consumes about 2 grams per month.24

Id. at

24-26.

See

Memo from Tony P. Teresi, Chief, Office of Congressional Affairs, Drug Enforcement Administration

to Stacy Shrader, Office of Congressman Asa Hutchinson, at 4 (March 8, 2001) (concluding that dosages for crack range

from

to 100 mg, and dosages for powder range from 30 to 100 mg).

But see

Hatsukami & Fischman,

supra

n.3, at 15 80-88 (concluding that

grams of crack yielded 50 to 200

doses and that 500 grams of powder yielded 10,000 doses).

But see id.

(concluding that crack cocaine doses range from

to 100 milligrams).

See

Memo from Tony P. Teresi,

supra

n.17, at 1.

Id.

See id at 2; Gawin & Kleber, Cocaine Use in a Treatment Population, in Cocaine in America:

Epidemiological and Clinical Perspectives

182-92 (NIDA Monogram #61

1985).

See

Memo from Tony P. Teresi,

supra

n.17, at 2.

24 Copal Das,

Cocaine Abuse in North America,

33 J. Clin. Parmacol. 296-3 10 (1993).

C. Use

Data

According to the National Household Survey on Drug Abuse, overall use of cocaine in the

United States has decreased over the past 15 years. In 2000, 1.2 million Americans were current

cocaine users.25 This compares to

1.5

million Americans in

199926

and

5.7

million current users in

1985.27

There are roughly five times as many powder cocaine users in the United States as there are

crack cocaine users. In 2000, 1.2 million people reported using powder cocaine in the past month,

compared to 265,000 people who reported using crack.28

Children and young adults also use crack cocaine less prevalently than powder cocaine. Of

students surveyed in 2001, 3.3% of

8th

graders reported having used cocaine during their lifetime,

compared with 3.0% who had used crack. For

10th

graders,

5.0%

had used cocaine and 3.1% had

used crack. And for

12th

graders, 7.4% had used cocaine and 3.7% had used crack.29

Finally, the Office of Applied Studies at the Substance Abuse and Mental Health Services

Administration collects an annual Treatment Episode Data Set from all state organizations that

receive federal drug funding for drug treatment. In 1999, 228,206 individuals were admitted to

treatment for cocaine abuse (this is down from 292,340 in 1994).° About 73% of all individuals

admitted into treatment used crack.31 The remaining 27% of individuals were admitted for powder

cocaine abuse.32 Sixty-nine percent of powder users reported that they ingested the drug intranasally

(42,515);

17% reported intravenously administering powder cocaine (10,490).

Department of Health and Human Services, Substance Abuse and Mental Health Services Administration,

Summary of Findings from the 2000 National Household Survey on Drug Abuse

App. F, Table F. 1 (2001). "Cunent

users" are defined as those individuals who have used cocaine within the past month.

Id.

27 Alan Lescher,

Research Report

Cocaine Abuse and Addition

2 (NIH Publication No. 994342) (National

Institute of Drug Abuse May 1999).

Supra n.25,

Table F. 1 at 131. (For 2000, 24.9 million people reported having used powder cocaine in their

lifetime, compared to

5.3

million lifetime crack users. )

29 National Institute of Drug Abuse,

Monitoring the Future Study

Table 1 (2001).

Department of Health and Human Services, Office of Applied Studies, Substance Abuse and Mental Health

Services Administration,

Treatment Episode Data Set

(1999).

Id.

at23.

Id.

at24.

Id.

D. Race Data

Data from the United

States

Sentencing Commission for the year 2000 indicates that 85%

of all individuals convicted of crack cocaine trafficking were Black.34 By contrast, only

30.5%

powder cocaine convicts were Black (17.8% were White and 50.8% were Hispanic).35 The racial

and ethnic breakdowns of crack and powder trafficking defendants in 2000 were as follows:

Table A. Race and Ethnicity of Crack and Powder Trafficking Defendants,

2000 (By Percentage).

White

Black

Hispanic

Other

POWDER

17.8

30.5

50.8

0.9

<500g

34.8

29.9 33.8

1.5

500g-Skg

16.3

36.0

46.6

1.1

>5kg

12.7

25.5

61.2

0.6

CRACK

5.6

84.7

9.0

0.7

<5g

13.1

74.9

11.0

1.0

5-50g

7.1

85.7 6.7

0.5

>50g

3.9

85.5

9.9

0.7

Data Source: U.S. Sentencing Commission, 2000 Data File.

Source: Office of Policy and Legislation, Criminal Division.

A 1996 study of crack and cocaine powder use reported that, overall, more Whites used

powder and crack cocaine than Blacks or Hispanics.36 However, within racial groups, a higher

percentage of Blacks and Hispanics use crack cocaine than Whites.37

Evidence that Blacks are more likely to use crack cocaine than Whites can also be found in

the Office of Applied Studies' annual Treatment Episode Data Set, which shows that

58%

of the

individuals admitted for treatment for crack cocaine abuse were Black.38 By contrast, only 33% of

powder cocaine users who entered treatment in 1999 were Black.39

The United States Sentencing Commission collects data on the race of defendants according to the following

categories: White, Black, Native American or Alaska Native, and Asian or Pacific Islander. Ethnicity data indicate

whether a defendant is of Hispanic origin. Individuals who are identified as Hispanic are categorized as such in the

Sentencing Commission data regardless of their racial background.

Data from the United States Sentencing Commission, 2000 Data File, compiled by the Office of Policy

Legislation, Criminal Division, U.S. Department of Justice.

36 Hatsukami & Fischman,

supra

n.3, at

1581

(Whites = 3.6 million; Black = 1.0 million; Hispanic = 0.7

million).

Id.

38 TEDS,

supra

n.30, at Table 3.lb.

Id.

E. Trafficking Data

According to the Drug Enforcement Administration, all cocaine is imported into the United

States as powder.4° Distribution in the United States is conducted at three broad levels: wholesale

trafficking, mid-level distribution, and retail selling.

Wholesale

cocaine traffickers purchase cocaine from importers and regional distributors in

kilogram or multikilogram allotments.41

Local Wholesalers

deal generally in quantities of 15

kilograms or less.42

Distributors

purchase cocaine in one-kilogram or less quantities and package the cocaine into

ounce quantities or convert it into crack and package it into ounces for sale by retail sellers.43 The

DEA has noted that, in an effort to avoid the severe federal penalties for crack cocaine, some

distributors deal only in powder cocaine.44

Retail Sellers

generally deal in ounce and gram quantities. Powder is usually sold in larger

amounts than crack. Retail crack sellers usually carry dosage units totaling no more than a few

grams at any one time (although during the course of a single shift, the amount of crack sold by one

retail seller can be substantial.)45

Prices

for powder cocaine typically mirror or are slightly lower than crack prices, although

crack cocaine can be purchased in smaller and less expensive amounts. A report issued in 2000 by

the Office of National Drug Control Policy reported that crack cocaine is most commonly sold by

the rock, and prices per rock ranged from $3 to

$35•46

The cost of crack by the gram ranged from

$20 per gram in Miami to $28 per gram in New York City to $100 per gram in Los Angeles,

Billings, MT, and Washington, DC, to $250 per gram in Hawaii.47 Prices for powder cocaine ranged

from $20 per gram in Sioux Falls, SD, to $200 in Hawaii, with most regions reporting prices of

around $100 per gram.48

Method of Delivery:

Crack cocaine is sold mostly on street corners, in private residences,

and in crack houses in hand-to hand transactions.49 Crack sellers are seldom affiliated with

See also

U.S.S.C.,

supra

n.3, at 66-67.

Report to the U.S. Sentencing Commission by Paul Daly, Assistant Administrator of the Intelligence

Division, Drug Enforcement Administration at 2-3 (October 9, 1996).

46 Office of National Drug Control Policy,

Pulse Check: Mid-Year 2000

at 22 (2000).

Id.

at 24-25.

Id.

at34.

trafficking organizations; some geographic regions report that crack sellers are often involved in

gangs (Chicago, Columbia, Denver, Honolulu, Los Angeles, Portland, and Washington, DC).5°

By contrast, powder cocaine is most often sold using a delivery method whereby a customer

places an order over the phone and the seller delivers the product to the customer.5' Street-level

powder sellers are equally likely to sell as part of a gang or independently.52

Powder Seizures:

In 2000, the DEA made 4,100 seizures of powder cocaine (a total of

55,523,225 grams). The average powder seizure was

13,542

grams. In 2001, the DEA made 3,671

powder seizures, with an average size of 12,322 grams. More than 60% of the DEA's seizures of

powder cocaine in 2000 and 2001 were for amounts less than 500 grams. For instance, in 2001,

DEA made 2,764 seizures of less than 500 grams of powder. This compares to

454

seizures of

powder in amounts between 500 and 2500 grams and 453 seizures of powder in amounts greater than

2500 grams.53

Crack Seizures:

In 2000, the DEA made 3,866 seizures of crack cocaine (a total of 338,936

grams). The average crack seizure was 88 grams. Tn 2001, the DEA made 3,916 seizures of crack

cocaine, with an average seizure of 72 grams. In 2001, the majority of cocaine seizures were

between

and 249 grams (2,649 seizures), compared with 1,121 seizures of less than

grams and

146 seizures of more than 250 grams.54

F. Data on Related Violence

Although the reason for the link is not entirely clear, crack cocaine use is more associated

than powder cocaine use with systemic violence. A partial explanation of the greater degree of

systemic violence associated with crack cocaine arises from the nature of crack and powder

transactions. Crack transactions tend to be hand-to-hand and often involve gang members; crack

users are less likely to use a regular supplier or a main source;55 and the pattern of crack use (a short

high followed by additional drug use) may mean that users and sellers interact in a manner that

elevates personal and aggregate risk.56 (Users coming off crack often feel an intense need for more

crack and frequently suffer from dysphoria and extreme agitation.57)

A November 2000 study examined the effect of the crack epidemic on urban crime rates and

concluded that, in the absence of crack, urban crimes rates in 1991 (the most recent peak year for

Id. at

33.

Id.

at37.

Id.

at 35.

Figures from DEA, on file with the Department of Justice.

Id.

ONDCP,

supra

n.46, at 34.

K. Jack Riley,

Homicide and Drugs: A Tale of Six Cities,

2 Homicide Studies 176, 196-97 (1998).

Id.

at 197-98.

urban crime) would have been 10% lower.58 The study further found that the most prevalent form

of violence related to crack cocaine abuse was aggravated assault.59 The authors also noted an

increase in property crimes associated with crack use.6° In addition, a 1998 study identified crack

as the drug most closely linked to trends in homicide rates.6'

Crack does not appear to cause violenceper

- rather it appears that crack abuse intensifies

criminal behaviors in which the users were already involved.62 Several studies have noted that crack

sales may be more violent because crack is sold in smaller units and involves a higher volume of

transactions.63 The crack market is highly decentralized with many small, independent groups

competing for territory and profits; this may lead to a greater reliance on violence as a means of

"regulating" the crack market.64

Crack also is much more associated with weapons use than is powder cocaine: in FY 2000,

weapons were involved in 10.6% of powder convictions, and 21.3% of crack convictions.65

One of the best-documented links between increased crime and cocaine abuse is the link

between crack use and prostitution. According to the authors of one study, "[h]ypersexuality

apparently accompanies crack use."66 In this study, 86.7% of women surveyed were not involved

in prostitution in the year before starting crack use; one-third become involved in prostitution in the

year after they began use.67 Women who were already involved in prostitution dramatically

increased their involvement after starting to use crack, with rates nearly four times higher than before

beginning crack use.68

In another 1991 survey of drug users, crack cocaine smokers reported more sex partners,

more acts of unprotected sex, a higher frequency of exchanging sex for drugs or money, and a higher

frequency of drug use before or during sex than IV cocaine users who did not smoke cocaine.

Because of this, crack cocaine smokers have been found to have rates of HIV infection as high as

those among IV drug users.69 Crack users were also more likely to contract other sexually

transmitted diseases, such as gonorrhea and syphilis, compared with cocaine hydrochloride users.7°

Jeff Grogger and Michael Willis,

The Emergence of Crack Cocaine and the Rise in Urban Crime Rates, 4

Review of Econ. and Stats. 519,

526

(2000).

Id.

525.

Id.

Riley,

supra

n.56, at 196-97.

62 Ko-Lin Chin & Jeffrey Fagan,

The Impact of Crack on Drug and Crime Involvement

19-21(1991.

Id.

Data from the United States Sentencing Commission, 2000 Data File, compiled by the Office of Policy

Legislation, Criminal Division, U.S. Department of Justice.

Chin & Fagan,

supra

n. 62, at 21.

67 Id.

at 15.

Id.

15.

Hatsukami & Fischman,

supra

n.3, at

1585.

Id.

PART II. LEGISLATIVE AND STATUTORY BACKGROUND

The sentences imposed in federal cocaine cases are based on a combination of sentencing

guidelines and statutory rules (referred to throughout this paper as the "federal sentencing scheme").

The U.S. Sentencing Guidelines (the "Guidelines") are promulgated by the United States Sentencing

Commission, ajudicial branch agency that issues rules and policies governing sentencing in federal

cases. A set of overlapping statutes define the federal cocaine offenses - possession of cocaine base

and trafficking in cocaine base or cocaine powder - and prescribe mandatory minimum and

maximum penalties that may be imposed for these offenses.

A. The U.S. Sentencing Guidelines and the Mandatory Minimum Penalties

The Guidelines are a result of the Sentencing Reform Act of 1984. This legislation provided

for a comprehensive statement of federal sentencing laws, appellate review of sentences, and the

abolition of parole. This legislation also created the United States Sentencing Commission, whose

members are appointed by the President subject to Senate confirmation, and directed it to develop

a detailed system of guidelines to structure and direct the sentencing discretion of federal district

court judges.

At the same time that the Commission was developing and promulgating the sentencing

guidelines, Congress enacted a number of mandatory minimum statutes for drug, weapon, and

recidivist offenders. In 1986, prior to the implementation of the sentencing guidelines, Congress

enacted the Anti-Drug Abuse Act (the "1986 Act") which established mandatory minimum penalties

for persons convicted of trafficking in powder and crack cocaine, among other substances.71 The

1986 Act also initiated the federal criminal law distinction between "cocaine base" and other forms

of cocaine,72 and established two tiers of mandatory prison terms for first-time drug traffickers:

' This legislation moved quickly through Congress and the legislative history is sparse. The legislative history,

as evidenced mainly by the statements of individual legislators, suggests that Congress perceived crack cocaine to be

at the forefront of a national drug-abuse epidemic.

See, e.g.,

132 Cong. Rec. 26,436 (Sept. 26, 1986) (statement of Sen.

Biden);

id.

at 26,444 (statement of Sen. Deconcini); 132 Cong. Rec. 8,091 (June 20, 1986) (statement of Sen. D'Amato).

Additionally:

• Congress's decision to differentiate crack cocaine from powder cocaine in the penalty structure was

deliberate and reflected Congress's conclusion that crack cocaine was more dangerous and associated

with greater social harms than powder cocaine.

See

U.S.S.C.,

supra

n.3, at 118..

• Congress intended quantity levels triggering the ten-year mandatory minimum penalties to be those

associated with major traffickers; quantity levels triggering the five-year mandatory minimum penalties

were intended to be associated with serious/mid-level traffickers.

Id.

at 118-19.

• In 1986, some members of Congress pushed in favor of stronger crack penalties because crack was

seen as disproportionately victimizing African-Americans, particularly in urban neighborhoods.

Id.

72 Although "cocaine base" technically includes both freebase and crack cocaine, the sentencing guidelines

define the term to apply only to crack cocaine.

See

U.S.S.G.

2D1.l note C.

• a five-year minimum sentence for individuals convicted of trafficking-

grams of

cocaine base or 500 grams of cocaine powder, and

• a ten-year minimum sentence for individuals convicted of trafficking 50 grams of

cocaine base or 5,000 grams of cocaine power.

The sentencing provisions of the 1986 Act were implemented in August 1986. In 1987, the

Sentencing Commission used the same 100:1 quantity ratio to set drug penalties under the

Guidelines.73 The initial set of sentencing guidelines was promulgated in November 1987. The

Supreme Court upheld the constitutionality of the Sentencing Commission and the guidelines in

January 1989 in

Mistretta v. United States,

488 U.S. 361 (1989). Full nationwide implementation

of the sentencing guidelines followed.

B. The Federal Sentencing Scheme

The provisions that define federal cocaine offenses differentiate between

trafficking74

- the

production or distribution of controlled substances - and

possession.75

Sentences for trafficking in

crack or powder cocaine are linked to the statutory mandatory minimums established by the 1986

Act.76 Simple possession of powder cocaine - regardless of amount - is treated as a misdemeanor,

punishable by up to a year of imprisonment. However, possession of more than five grams of a

mixture or substance containing crack cocaine base is punishable by imprisonment for at least five

years.77

All federal defendants convicted of a felony or Class A misdemeanor offense are sentenced

according to the Guidelines, which are pegged to the applicable mandatory minimums. The

Guidelines, which are set out in the Federal Sentencing Guidelines Manual, specify a range of

imprisonment based on offense and offender characteristics. To determine the applicable guidelines

U.S.S.C.,

supra

n.3, at 1.

" 21 U.S.C. § 84 1(a) makes it unlawful for any person "knowingly or intentionally (1) to manufacture,

distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or (2) to

create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance."

21 U.S.C. § 844 makes it unlawful for any person "knowingly or intentionally to possess a controlled

substance unless such substance was obtained directly, or pursuant to a valid prescription or order, from a practitioner,

while acting in the course of his professional practice, or except as otherwise authorized by this subchapter or subchapter

H of this chapter."

76 For cases involving trafficking in at least

grams of cocaine base or 500 grams of cocaine powder, 21 U.S.C.

§ 841 (b)( 1 )(B) prescribes a mandatory minimum prison term of not less than

years. For cases involving trafficking

in at least 50 grams ofcocaine base or 5,000 grams of cocaine powder, 21 U.S.C. § 841 (b)( l)(A) prescribes a mandatory

minimum prison term of not less than 10 years. In cases where the drug amount criteria for the basic five-year or ten-year

mandatoiy penalties are satisfied, 21 U.S.C. § 841 provides higher mandatory penalties if certain additional aggravating

factors are present. Specifically, higher mandatories are provided - in some circumstances up to life imprisonment -

where the offender has prior drug offense convictions or death or serious injury results from use of the drugs involved

in the offense.

21 U.S.C. § 844. This provision was enacted as part of the Anti-Drug Abuse Act of 1988.

range in particular cases, a

base offense level

is assigned according to nature of the offense, and a

criminal history category

is assigned on the basis of the seriousness of the offender's criminal

history. These two factors in combination (and as adjusted to reflect aggravating and mitigating

factors) determine the applicable guidelines range of imprisonment.

The

base offrnse levels

for crack and powder cocaine trafficking offenses are based on the

quantity of drug involved in the offense. For offenders who have no other adjustments made to their

offense level, the base offense level would correspond to the final offense levels listed in the

following table.78

Table B. Penalties

Level.

for Crack and Powder Cocaine Trafficking by Offense

Guideline offense

level (2Dl.1)

Quantity

Crack

of Drugs

Powder

Guideline Range

(CH I)

12-

Oto<250mg

Oto<25g

10-16 months

14-

250to<500

25to<50g

15-21 months

16

500mgto<lg

SOto<lOOg

2 1-27 months

18

lto<2g

lOOto<200g

27-3 3 months

20

2to<3g

200to<300g

33-41 months

22

3to<4g

300to<400g

41-5 1 months

24-

4 to

<5 g

400 to <500 g

1-63 months

26

Sto<20g

500 gto <5 kg

63-78 months

28-

2Oto<35g

2to<3.5kg

78-97 months

30-

35to<50g

3.5

<5 kg

97-121 months

32-

5Oto<150g Sto<l5kg 121-151 months

34 150 to <500g 15 to <50 kg 151-188 months

36 SOOgto<1.5 SOto<lSOkg 188-235 months

38 >1.5 kg >150kg

235-293

months

Source: Office of Legal Policy based on the U.S. Sentencing Guidelines Tables

As demonstrated by Table B, the 100:1 differential in amount that Congress established when it

created the mandatory minimums in the 1986 Act is embodied in the offense levels for powder and

crack trafficking offenses. The base offense level for trafficking in 500 grams of powder cocaine

grams of crack cocaine is the same: level 26.

The defendant is next assigned a

criminal history

category.

These categories range from I

to VI and are based on the defendant's prior criminal acts.79 The defendant's criminal history

category in combination with his base offense level determines the applicable guideline range of

78-

See

U.S.S.G. § 2D1.1(c)(12), Ch. 5 Pt. A (sentencing table).

See

U.S.S.G. §4A and §5A (Table).

imprisonment. For instance, for an offender convicted of trafficking in

grams of crack with a

criminal history level I and no other adjustments, the applicable guidelines range would be between

63 and 78 months of imprisonment. A defendant with the same base offense level but a criminal

history level V would face between 110 and 137 months of imprisonment.

A defendant's base offense level and criminal history category can be altered by certain

predetermined

aggravating and mitigating factors.

For example, possession of a firearm is a

"special offense characteristic" that increases a defendant's offense level by two points.80

Judges are generally expected to impose a sentence within the applicable range, but the

Guidelines permit the courts to impose sentences outside of the range if the circumstances of the

cases are not adequately addressed by the Guidelines or the defendant provided substantial assistance

to prosecutors. Sentences outside of the guidelines range are referred to as

upward and downward

departures. Downward departures, most frequently on the basis of cooperation by the offender with

the government, are relatively common in drug cases. One common downward departure is as

follows:

Substantial Assistance: In addition to this specific exception to drug law mandatory

penalties, 18 U.S.C.

3553(e)

allows the court, on the motion of the government, to

impose a sentence below any statutory minimum penalty to reflect substantial

assistance by the offender to the government in the investigation or prosecution of

an offense.8' This exception is applied frequently in drug cases, which often involve

"trading up" - according more lenient treatment to low-level participants in drug

trafficking organizations in return for their assistance in investigating and prosecuting

the organization's supervisors and leadership.

Upward departures very rarely occur in drug cases.82

Defendants may also qualify for exemption from the mandatory minimum penalties:

Safety Valve: Under a special statutory exception, mandatory minimum penalties

under the drug laws are inapplicable in certain cases involving nonviolent, low-level

drug offenders.83 The specific criteria for this exemption, commonly referred to as

a "safety valve," are that: (1) the offender does not have a very serious criminal

See

U.S.S.G. § 2D 1.1 Unlawful Manufacturing, Importing, Exporting, or Trafficking. Mandatory penalty

provisions which are defined outside of the drug laws also can affect the sentences imposed in drug cases. In particular,

18 U.S.C. 924(c) generally requires a prison term of at least five years for a person who uses, carries, or possesses a

firearm during the commission of a federal crime of violence or drug frafficking crime.

See

U.S.S.G. § 5K1.l.

See

Bureau of Justice Statistics,

Federal Drug Offenders, 1999 with Trends 1984-99,

at 9 (Table 7), 10-11

(Aug. 2001) (in drug cases in 1999, sentence was within guidelines range for

56.2%

of defendants, above guidelines

range for 0.2% of defendants, and below guidelines range for 43.6% of defendants).

83SeeU.S.S.G.

5Cl.2,

18 U.S.C. §

3553(f).

history, (2) the offender was not armed or violent, (3) the offense did not result in

death or serious injury, (4) the offender was not a leader or supervisor in drug

trafficking activities, and

(5)

the offender did not withhold information or evidence

from the government. -

Finally, the Sentencing Reform Act abolished parole. Prisoners can receive a reduction of

time served for good behavior in prison of no more than

days for each year served. Prisoners with

drug abuse problems who successfully complete residential substance abuse treatment can have their

imprisonment reduced by up to a year.84 In addition, offenders who are not sentenced to

imprisonment may be sentenced to a period of supervision, which is referred to as "probation." In

cases where a term of imprisonment is imposed, the sentence usually includes as well a period of

post-imprisonment supervision.85

C. Legal Challenges

Every appellate court that has heard a challenge to the crack and powder cocaine sentencing

structure has upheld it as constitutional. Defendants challenged the federal sentencing scheme under

the Equal Protection and Due Process clauses, and the Eighth Amendment. Defendants have also

asserted that the federal sentencing statutes are unconstitutionally vague. These constitutional

challenges to the federal sentencing scheme have failed.

1. Equal Protection

Defendants have made two arguments under the Equal Protection Clause. Defendants have

argued that Congress and the Sentencing Commission acted with discriminatory intent in creating

the sentencing differential in amount, as evidenced by allegedly racist language in Congressional

hearings and the sparse legislative history. Courts have rejected this argument, stating that there is

no evidence of discriminatory intent sufficient to warrant application of strict scrutiny.86 In the

alternative, defendants argue that the federal sentencing scheme is unconstitutional because it has

a disproportionate impact on Blacks. Many such arguments rely on the Sentencing Commission's

1995

report to Congress, discussed in Section ll.D,

infra

at 17, which recommended adjusting the

guideline quantity ratio so that the base offense levels would be the same for both powder cocaine

and crack cocaine offenses and setting the mandatory five-year minimums for both crack and powder

84 18 U.S.C. § 3621(b) & (e) require that "every prisoner with a substance abuse problem have the opportunity

to participate in appropriate substance abuse treatment." Only non-violent prisoners are eligible to have their term of

imprisonment reduced.

85 See

18 U.S.C. §

3551,

3561, 3583; 21 U.S.C. § 841.

See United States v. Singleterry,

29 F.3d 733, 741(1st Cir. 1994), cert. denied,

115 5. Ct. 647 (1994);

United

States v. Moore, 54

F.3d 92, 98 (2nd Cir.

1995), cert. denied,

116 S. Ct. 793 (1996);

Un ited States v. Frazier,

981 F.2d

92,

(3rd Cir. 1992),

cert. denied, 113 5. Ct. 1662 (1993);

United States v. Angulo-Lopez, 7

F.3d 1506, 1509(10th

Cir.

1993),cert. denied,

114 5. Ct. 1563 (1994);

UnitedStatesv.Hanna,

153 F.3d 1286, 1288 (llthCir. 1998);

United

States v. Johnson,

40 F.3d 436, 439 (D.C. Cir. 1994),

cert. denied,

115 5. Ct. 1412

(1995).

cocaine at 500 grams.87 Courts have rejected this argument after applying rational basis analysis,

holding that, despite the Sentencing Commission's proposals to reduce the sentencing differential

in amount, racially neutral justifications for the sentencing scheme exist sufficient to find the

differential constitutional.88

In addition, at least one defendant has argued that courts should apply intermediate scrutiny

to the sentencing differential because of proposals by federal officials that have advocated its

elimination or reduction. The court in this case refused consider crack and powder cocaine as quasi-

suspect classifications, and did not applied intermediate scrutiny.89

At least one district court has ruled that the sentencing differential violated the Equal

Protection Clause, relying on the "unconscious racism" of Congress.9° The Eighth Circuit rejected

the district court's ruling, holding that no evidence of purposeful discrimination by Congress

existed.91

However, despite the fact that circuit courts have upheld harsher penalties for crack offenses,

some do so reluctantly. Appellate judges have criticized the rationality of the sentencing differential

for its disproportionate impact on minorities, especially in light of proposals to reduce or amend it.92

United States v. Teague,

93 F.3d 81, 85 (2nd Cir. 1996),

cert. denied,

117 S. Ct. 708 (1997);

United

States v. Washington,

127 F.3d 510, 516-17 (6th Cir. 1997);

United States v. Jackson,

84 F.3d 1154, 1161(9th Cir.

1996),

cert. denied,

117 S. Ct. 445

(1996).

Jackson,

84 F.3d at 1161 ("we do not agree that the Commission's report, of Congress's decision to reject

it, affects the precedential value of our ruling that Congress had a rational basis for the 100:1 ratio");

see also United States v. Smith,

73 F.3d

1414, 14l7-l8(6thCir. 1996).

the heightened penalties for crack offenses could not be applied in the instant case based on the rule

of lenity.97 The court, based on testimony from four experts, found that cocaine and cocaine base

are scientifically identical due to their molecular substance, weight, and melting point.98

D. Past Legislative and Commission Proposals to Amend

In the early 1 990s, the Sentencing Commission began collecting data on federal offenders

that for the first time differentiated among drug offenders based on the type of drug involved in the

offense. An analysis of the data revealed a fact that proved to be startling to many: about 90 percent

of all crack cocaine offenders were Black. This fact, in light of the stronger penalties for crack

offenses, raised significant concerns for many at the Sentencing Commission, the Department of

Justice, and in Congress. A series of reports, recommendations, and administrative and legislative

actions followed.

In 1994, Congress directed the Sentencing Commission to issue a report and

recommendations on cocaine and federal sentencing policy.99 In response, the Commission issued

a report to Congress in 1995 recommending changes to the current cocaine sentencing scheme.10°

The proposed amendments would have adjusted the guideline quantity ratio so that the base offense

levels would be the same for both powder cocaine and crack cocaine offenses; set the mandatory

five-year minimums for both crack and powder cocaine at 500 grams; and eliminated the unique

five-year mandatory minimum for simple possession of more than five grams of crack cocaine.

The Department of Justice formally opposed the Commission's recommendation and sought

legislation overturning the Commission's proposed guideline amendments. In October 1995,

Congress passed and the President signed legislation rejecting these amendments.'°1 In this

legislation, Congress directed the Commission to submit recommendations regarding changes to the

statutes and guidelines governing cocaine sentencing. Congress directed that the recommendations

reflect certain principles, including that the "the sentence imposed for trafficking in a quantity of

crack cocaine should generally exceed the sentence imposed for trafficking in a like quantity of

powder cocaine," that high-level traffickers should receive higher sentences than lower-level ones,

and that there should be enhancements for (among other things) use of weapons, violence, or

victimizing pregnant women or children.'°2

In April 1997, the Commission issued a second report on federal cocaine sentencing policy,

but did not issue specific proposed Guidelines amendments. For powder cocaine, the Commission

concluded that the current 500-gram trigger for the five-year mandatory minimum sentence should

United States v. Davis,

864 F. Supp 1303, 1309 (N.D. Ga. 1994).

See id. at

1306.

Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322 (September 1994).

100

See

Amendments to the Sentencing Guidelines for United States Courts, 60 Fed. Reg.

25074 (1995).

'o See Pub. L. No. 104-38, 109 Stat. 334 (Oct. 30, 1995).

102

Id.

be reduced to a level between 125 and 375 grams. For crack cocaine, the Commission recommended

increasing the five-gram trigger to between

and 75 grams.'°3

In mid-1997 the Department of Justice and the Office of National Drug Control Policy

("ONDCP") reviewed the Commission's recommendations. Attorney General Janet Reno and

ONDCP Director Barry R. McCaffrey sent a recommendation to President Clinton to increase the

five-year trigger for crack cocaine to 25 grams and to decrease the trigger for powder cocaine to 250

grams. President Clinton endorsed that recommendation, and also endorsed the repeal of the

mandatory minimum sentence for simple possession.

In the 105th 1061h and 107th Congresses, various bills were introduced to revise federal

cocaine sentencing policy. Some of the bills would have equated powder and crack penalties by

increasing powder cocaine penalties. Others would have equated penalties by lowering crack

penalties. Still others would have reduced the differential by a combination of increases to powder

cocaine sentences and reductions in crack cocaine sentences. While none of these bills became law,

a bill introduced by then-Senator Spencer Abraham that would have increased powder cocaine

penalties (moving the trigger from 500 grams to 50 grams, thus creating a 10-to-i ratio) passed the

Senate by one vote as an amendment to the Bankruptcy Reform Act of 2000.104

E. Current Proposals to Amend

The U.S. Sentencing Commission is in the process of reviewing the current cocaine

sentencing policy. In the fall of 1999, seven new members of the Sentencing Commission were

appointed by President Clinton and confirmed by the Senate. Since being seated, this new

Commission has repeatedly expressed concern over current cocaine sentencing policy and the

continued sentencing differential. The Commission formally sought comments from the public on

January 17, 2002, on possible changes to cocaine sentencing policy.

In addition, on December 12, 2001, Senators Leahy and Hatch, on behalf of the Senate

Judiciary Committee, asked the Commission "to update its 1997 report for Congressional review to

provide us with guidance as we continue to evaluate the appropriateness of the penalty differential

between powder and crack cocaine."105

On December 20, 2001, Senators Sessions and Hatch introduced a bill titled the Drug

Sentencing Reform Act of 2001 that would, among other things, create a 20-to-i ratio by moving

the triggers for the five-year mandatory minimum to 20 grams for crack and 400 grams for powder.

The triggers for the 10-year mandatory minimum would be moved to 200 grams for crack and 4,000

103

See

U.S. Sentencing Commission,

SpecialReport to the Congress.' Cocaine and Federal Sentencing Policy

(April 1997).

104

See

Bankruptcy Reform Act of 2000, H.R. 833,

106th

Cong.

1772 (2000).

105

See

Letter from Senators Orrin Hatch and Patrick Leahy to Diana E. Murphy, Chair, U.S. Sentencing

Commission (Dec. 12, 2001).

grams for powder. Additionally, the legislation reduces the five-year mandatory minimum sentence

for simple possession of five grams of crack to one year.106

PART III: DATA AND FINDINGS

Proposals to amend the federal sentencing scheme for crack and powder cocaine offenses

have focused on concerns that the 100:1 differential in the amounts of powder and crack cocaine that

gives rise to five-and ten-year mandatory minimum sentences (and by proxy the Guideline's base

offense levels) is unjustified, contrary to Congress's intent, and has a disproportionately harsh effect

on Blacks.

Some have argued that the 100:1 differential in powder and crack cocaine amounts at

sentencing gives rise to sentences for crack cocaine that are far longer than sentences for powder

cocaine.'07 A 1996 Washington Post editorial criticized the disparity between crack and powder

cocaine treatment, and supported instead "doubling or tripling the sentence for crack instead of

leaving the disparity at a hundred fold."108 However, in the extensive body of literature on the

federal sentencing scheme for crack and powder, there is little analysis of the actual disparity in the

sentences served by similarly situated defendants.

In order to determine the actual ratio between crack and powder cocaine sentences, the Office

of Legal Policy (with assistance from the Bureau of Justice Statistics and the Criminal Division's

Office of Policy and Legislation) conducted a number of different analyses of the federal sentencing

data for cocaine offenses collected by the U.S. Sentencing Commission between 1996 and 2000.

The analyses described in this paper each attempt to compare the sentences for offenders where

crimes involved like amounts of cocaine. Our analyses show that, examined on this basis, crack

cocaine sentences are 1.3 to 8.3 times longer than powder sentences, depending on the amount of

cocaine involved and the specific characteristics of the offender. In 2000, the average crack sentence

was 1.6 times the average powder sentence.

Two caveats:

There are limitations to the analyses performed for this study. Most crack

cocaine offenses involve between five grams and

1.5

kilograms of cocaine. Most powder cocaine

offenses involve between 500 grams and 150 kilograms of cocaine. It is easy to compare these two

offenses where the amount of drug overlaps

(e.g.

from 500 grams to

1.5

kilograms). At the margins,

however, the comparison is more difficult because the number of defendants is so skewed. For

instance, in the year 2000, there were 1,391 crack defendants convicted of trafficking less than 25

grams of crack, compared to only 205 powder defendants. At the upper end of the spectrum, there

were 3,181 defendants convicted for trafficking in more than 2 kilograms of powder, compared with

106

See

Drug Sentencing Reform Act of 2001, S. 1874, 107hl Cong.

107 A recent article in the Los Angeles Times stated that "[djisparities built into the sentencing laws also provide

for a 100-to- 1 difference between sentencing ofpowder and crack cocaine offenders." Lisa Richardson,

Season ofHope:

Inmates serving lengthy prison terms for drug offenses find that the last days of a presidency

when an outgoing chief

has little to lose

may bring their best chance at clemency,

L.A. Times, at El (Dec. 19, 2001).

108 Editorial,

Science and Sentence Disparity, Wash. Post, at A30 (Nov. 28, 1996).

488 crack defendants.'°9 In order to minimize the effect of this unequal distribution, we

amalgamated data for

years (1996 to 2000) for many of our analyses. Nevertheless, the data at the

upper and lower ends of the spectrums are less reliable because the sample sizes are so disparate.

Additionally, our review of crack and powder sentences does not account for the effect of the

exercise of prosecutorial discretion. The available data show that the number of crack and powder

cocaine convictions increase sharply at the level at which the statutory mandatory minimum

sentences apply for each drug. The number of convictions in each category is highest for base

offense levels 26 and 32, the two levels that correspond with the five- and ten-year mandatory

minimum sentences.

(See

Table C, below.) Although it is difficult to draw conclusions from this

data alone, it is possible that Assistant U.S. Attorneys (AUSAs) aggregate drug amounts in order to

reach the mandatory minimums. It is also possible that AUSAs decline to prosecute crimes

involving amounts of drugs below the mandatory minimums. Because the effect of prosecutorial

discretion is difficult to isolate, our models do not control for it.'1°

Table C. Powder And Crack Cocaine Trafficking Convictions, by Base

Offense Level, 2000.

Crack Cocaine

Powder Cocaine

Base Offense Level Count Percent Count Percent

0.7%

146

2.8%

0.4%

1.3%

0.8%

105

2.0%

143

2.7%

1.6%

175

3.3%

1.3%

1.6%

420

8.7%

524

10.0%

277

5.8%

398

7.6%

176

24.5%

851

16.2%

722

15.0%

649

12.4%

36 395 8.2% 327 6.2%

109

These numbers are based on the amount of cocaine reported in the U.S. Sentencing Commission's data files.

However, for some cases the actual quantity of drug was not specified in the presentence investigation reports from which

the Sentencing Commission extracts data. For instance, in 2000, the amount of drug was missing from 28.8% ofpowder

convictions and 20.9% of crack convictions. However, for those cases were an actual quantity was not specified but the

base offense level determined pursuant to U.S. 5G. § 2D 1.1 was specified, a quantity was estimated based on the quantity

range associated with the applicable base offense level. The estimated quantity was determined using an algorithm that

assumed a uniform distribution of cases within the guideline quantity range.

110

It should be noted that other factors, not readily quantified, may affect the sentencing ratios described herein

20

Crack Cocaine

Powder Cocaine

Base Offense Level Count Percent

Count Percent

38 678 14.1%

441 8.4%

Totals 4,805 100%

5,239 100%

Data source: U.S. Sentencing Commission, 2000 Data File.

Source: Office of Policy and Legislation, Criminal Division.

The sections that follow analyze sentences for crack and powder cocaine in several ways.

First we present a discussion of the general sentencing characteristics of crack and powder cocaine

offenders. Then we present an analysis of actual crack and powder sentences by amount. Next we

analyze the sentences for crack and powder by amount while attempting to control for certain special

offender characteristics such as possession of a weapon or high criminal history level. Finally we

present a brief analysis of the effect that certain proposed changes would have on current crack and

powder sentences.

General Characteristics of Crack and Powder Sentences

In 2000, federal courts sentenced

59,486

defendants. Drug defendants represented the largest

subcategory of federal defendants, comprising roughly 40% (24,179) of all individuals sentenced in

2000. Nearly 97% of all drug defendants were sentenced for drug trafficking offenses. Of these

defendants, 23%

(5,239)

were sentenced for trafficking in powder cocaine; 21.3%

(4,805)

were

sentenced for trafficking crack cocaine. Over the preceding five years, the number of powder

defendants increased by 20% and the number of crack defendants increased by roughly 10%.

Table D. Number of and Powder Trafficking Defendants, 1996-20 00.

Drug

1996

1997

1998

1999 2000

Powder

4350

4626

4665

4863

5239

Crack

4355 4414

4633

4914

4805

Data source: U.S. Sentencing Commission, 1996-2000 Data Files.

Source: Office of Policy and Legislation, Criminal Division.

The average sentence for trafficking in cocaine powder in the year 2000 was 74 months; the

median sentence was 57 months. For crack cocaine traffickers, the average sentence was 117

months; the median sentence was 96 months." The ratio of the average crack and powder sentences

was 1.6:1 - in other words, crack defendants received an average sentence that was 1.6 times greater

than the average powder sentence.

Data from the Office of Policy and Legislation, Criminal Division. The average sentence is the sum of all

sentences divided by the number of defendants sentenced. The median sentence represents the sentence at the

50th

percentile of all defendants.

The majority of both crack and powder defendants received a sentence between 1 and 10

years imprisonment (72.3% of all powder defendants and 52.2% of all crack defendants). However,

33.8% of crack defendants received a sentence between 10 and 20 years, compared to only

15.8%

of powder defendants.

Table E. Drug Trafficking Defendants Sentenced by Primary Drug

and Prison Length, 2000

Crack Cocaine

Powder Cocaine

Imprisonment

Count

Percent

Count

Percent

No prison

107

2.2%

246 4.7%

Time served

0.5%

0.7%

1.2%

151

2.9%

lto<5

1007

21.1%

2215

42.5%

Sto<10

1486

31.1%

1554

29.8%

lOto<20

1612

33.8%

824

15.8%

2Oto<30

322

6.7%

122

2.3%

30toLife

101

2.1%

0.7%

Life

1.2%

0.6%

Total

4771

100.0%

5216

100.0%

Data source: U.S. Sentencing Commission, monitoring data file, 2000.

Source: Office of Policy and Legislation, Criminal Division.

Crack and powder cocaine defendants in 2000 were roughly equally likely to have been

convicted for a trafficking offense (96.9% versus 96.4%), and received approximately equal numbers

of upward and downward departures. However, powder cocaine defendants were convicted of

possessing a larger amount of drugs than were crack defendants (3,400 grams vs. 83 grams)'12

Powder cocaine defendants were also more like to receive a lower sentence based on their role in the

offense (2 1.6% of powder defendants received this reduction, compared to only 8.3% of crack

defendants). Finally powder defendants were more likely to benefit from "safety valve" exemptions

from mandatory minimum penalties (31% of powder vs. 12.6% of crack).

(See

Appendix A for

supporting data.)

Conversely, crack cocaine defendants were more likely than cocaine powder defendants to

have a criminal history. During 2000, approximately 29% of crack defendants were categorized in

the lowest guideline criminal history category, I, compared to 61% of cocaine powder defendants.

Crack defendants were three times as likely to be categorized in the highest criminal history

category, VI, as were cocaine powder defendants (17% vs.

5.6%). (See

Appendix A for supporting

fl2 These numbers represent the median amounts, not the average amounts, of drugs..

data.) Crack defendants were also twice as likely to carry a weapon - 20.9% received an

enhancement for carrying a weapon, compared to only 10.1% of powder defendants.113

B. Comparison by Amount of Drug

As stated above, crack defendants received an average sentence in 2000 that was 1.6 times

greater than the average powder sentence. To further examine the relationship between the sentences

imposed on crack and powder defendants, we asked the Bureau of Justice Statistics to compare the

sentences for crack and powder cocaine by the amount of drug underlying each conviction - in other

words, where offenders in each group committed crimes involving the same amount of drugi'4

The results, listed in Table F, below, show that crack defendants received higher average

sentences than powder defendants, and that the ratio of crack to powder sentences was greater for

lower amounts of cocaine than for higher amounts of the drug. For instance, in 2000, crack

defendants convicted of trafficking in less than 25 grams of cocaine received an average sentence

that was 4.8 times longer than the sentence received by an equivalent powder defendant. However,

at the upper end of the spectrum, defendants convicted of trafficking in between 15 and 49.9

kilograms of crack received an average sentence that was only 2.4 times longer than the average

powder sentence for an equivalent amount of drug. (In the middle of the spectrum (400 to 499

grams), the ratio of the two average sentences was 3.4:1).

Table F. Average Prison Term Imposed on Trafficking Defendants by Type of

Drug and Drug Quantity, 2000.

Crack Cocaine

Powder Cocaine

Ratio

Number Prison

Crack:

Drug quantity

term

Powder

Lessthan25g

1391

64.8

205

13.6

4.8:1

25-49.9g

579

89,1

20.1

4.4:1

50-99.9g

726

116.4

115

24.8

4.7:1

l00-199.9g

641

116.5

153

26.3

4.4:1

200 -299.9 g

252

123.4

177

30.3

4.0:1

300-399.9g

156

138.2

34.2

4.0:1

400-499.9g

137

138.2

150

40.4

3.4:1

113 Data from the United States Sentencing Commission, 2000 Data File, compiled by the Office of Policy

Legislation, Criminal Division, U.S. Department of Justice.

114 For those cases in which the actual quantity of drug was not specified in the presentence investigation

reports, a quantity was estimated based on the quantity range associated with the applicable base offense level.

See supra

n.108.

500g-1.99kg

605

170.5

1186

49.4

3.5:1

3.49

196

207.0

536

61.4

3.4:1

3.5

4.99 kg

132

213.9

381

70.1

3.1:1

14.99

244.5

850 82.9

2.9:1

15 49.99 kg

239.9

636 101.7

2.4:1

50-149.99kg

---

316

123.7

150 kg or more

---

462

170.2

Data source: U.S. Sentencing Commission, monitoring data file, 2000.

Source: Bureau of Justice Statistics, Federal Justice Statistics Program.

C. Comparison by Specific Offender Characteristics

Finally we examined the data by isolating certain offender characteristics (such as criminal

history level and whether or not the individual had a gun) to determine what effect these

characteristics had on crack and powder sentences. To do so, we aggregated the sentencing data for

the years 1996 through 2000 and looked at sentences for similar amounts of crack and powder

cocaine according to specific offender characteristics.

However, because the Sentencing Commission did not begin collecting data on the specific

amount of cocaine for each conviction until 1996, and because even the most recent data is missing

specific drug amounts for at least 20% of convictions,"5 we compared the data using the base offense

levels (BOL5) as proxies for the amounts. As an example, we equated base offense levels 28 and

30 for crack (which correspond to between 20 and 50 grams) with base offense level 14 for powder

(which corresponds to 25 to 50 grams). The rough outline of this structure is as follows:

Table G. Base Offense Levels Equated by Amount.

Crack Range

Crack BOL

Powder Range

Powder BOL

<20g

12-26

<25g

20gto<50g

28&30

25gto<50g

14

S0gto<150g

SOgto<200g

16&18

lSOgto<500g

200gto<500g

20-24

SOOgto<1.Skg

SOOgto<2kg

26

>1.5kg

>2kg

28-38

' For 2000, 28.8% of powder convictions were missing amount data and 20.9% of crack convictions were

missing amount data. The number of convictions for which amount data is not available has been fairly consistent for

each of the five years in which such data has been collected.

This comparison has several limitations. First, the amount of cocaine in each base offense

level is not precisely equivalent (in other words, the amount of crack in BOL 36 is not precisely

equivalent to the amount of powder in BOL 26). Secondly, because the scale for crack is so much

lower than the scale for powder, the outlying categories compare a large set of data to a much smaller

and less diverse set of data. For instance, defendants convicted of trafficking more than 2 kilograms

of powder cocaine fall between base offense levels 28 and 38 and number 14,463. This subset of

data was compared to all defendants convicted of trafficking more than 1.5 kilograms of crack, all

3,701 of whom fell into base offense level 38. The same problem in reverse (better crack data than

powder data) is true at the lower end of the guideline ranges.

Nonetheless, despite the limitations of this data, this analysis helps to clarify the effect of

certain offender characteristics on overall sentences. This analysis, shown in Table H, demonstrates

that the ratio between the average sentences for crack and powder cocaine decreases as the amount

of drug increases. For instance, for the lowest category of drug amount, the average crack sentence

was 4.8 times longer than the average powder sentence. For the highest category of drug amount,

the average crack sentence was 2.1 times longer than the average powder sentence.

We then compared crack and powder defendants who possessed a weapon. For those

offenses where the defendant possessed a weapon, the ratio of crack to powder sentences was less

than the average ratio. For the lowest category of drug amount, the average sentence for crack

defendants who possessed a weapon was 2.9 times longer than the average sentence for similarly-

situated powder defendants. For the highest category of drug amount, the average sentence for crack

defendants who possessed a weapon was only 1.6 times longer than the average sentence for similar-

situated powder defendants.

We also compared crack and powder offenders by amount and criminal history categories.

For offenders with a high criminal history category, the ratio between the sentences was also lower

than the ratio between the average crack and powder sentences. Crack defendants with criminal

history level VI received an average sentence that ranged from 1.6 to 1.3 times longer (depending

on the amount of drug) than the average sentence for similarly-situated powder defendants.

Conversely, the ratio between crack and powder sentences for offenders with a low criminal

history levels was higher. The ratio between average crack and powder sentences for the lowest

category of drug amount and criminal history category I was 8.3:1. (This disparity affected 1,637

(or 7%) of the 22,896 crack defendants examined in this study.) The ratio of crack to powder

sentences was only 2:1 for offenders in the highest category of drug amount and the lowest criminal

history category. (The complete results of this analysis can be found in Appendix B.)

25

Table H. Ratio of Average Crack to Average Powder Sentences by Equivalent BOL, Controlling for Specific

Characteristics, 1996-2000.

Crack

Amount

Range

Powder

Amount

Range

Average

Ratio

Defendants

with

Weapons

Defendants

without

Weapons

Defendants

with

Criminal

History I

Defendants

with

Criminal

History VI

<20g

<25g

4.8:1

2.9:1

5.8:1

8.3:1

1.6:1

2Oto<50g

25to<50g

4.4:1

3.1:1

4.8:1

5.9:1

2.1:1

5Oto<150g

5Oto<200g

4.9:1

3.6:1

5.2:1

5.4:1

2.2:1

l5Oto<500g

200to<500g

3.8:1

3:1 3.7:1

3.5:1

2.2:1

SOOgto<l.Skg

SOOgto<2kg

3.2:1

2.3:1

3.2:1 3.1:1

1.7:1

>1.5kg

>2kg

2.1:1

1.6:1

2:1 2:1

1.3:1

Data source: U.S. Sentencing Commission, 1996-2000 Data Files.

Source: Office of Policy and Legislation, Criminal Division

D. Brief Analysis of Proposals to Amend the Federal Sentencing Scheme

In order to make a rough estimate of the effect that the proposals for changing the ratio of

crack and powder cocaine would have on the resulting sentences, we also created a simulated

sentencing model. This was done by adjusting known parameters applied at sentencing and

theoretically re-sentencing defendants based on the adjusted parameters. Resentencing defendants

convicted of trafficking crack cocaine to reflect varying ratios of cocaine powder to crack cocaine

involved changing the guideline base offense levels and the applicable statutory minima to reflect

the adjusted quantity thresholds. Table I, below, describes the guideline base offense levels and the

corresponding quantity thresholds corresponding to the various quantity ratios examined. All other

sentencing factors - including the actual quantity of drug involved - remained constant in the model.

(See

Appendix

for further information on this model.)

26

Table I. Quantity Thresholds for Crack Cocaine Corresponding to Various Quantity Ratios

Between Cocaine Powder and Crack Cocaine.

Guideline

Minimum crack quantity threshold

Powder

______________________________________________________________

base offense

level

100:1

(2D1.l)

(actual)

50:1

20:1

10:1

5:1

2:1

1:1

________

None

None None

None

None None None

None

25g

250mg

500

l.25g

2.5g

12.5g

25g

50g

500mg

2.5g

lOg

25g

50g

lOOg

lOg

20g

50g

lOOg

200g

lOg

20g

40g

lOOg

200g

300g

15g

30g

60g

150g

300g

400g

20g

40g

80g

200g 400g

500g

20g

25g

50g

lOOg

250

500g

2kg

20g

3.5 kg

35g

lOOg

50g

200g

175g

400g

350g

1kg

700g

2kg

1.75

5kg

SOg

150g

250g

SOOg

1kg

2.5kg

5kg

15kg

150g

500g

750g

1.5kg

3kg

7.5kg

15kg

50kg

500g

1.5kg

2.5kg

5kg

10kg

25kg

50kg

1501cc

1.5kg

3kt

7.5kg

15kg

30kg

75kg

15Ok

Source: Office of Legal Policy

Under current practice, defendants convicted of trafficking crack cocaine received an average

prison sentence of 120 months during 1999 and 117.6 months during

2000.116

If federal sentencing

law and policy were changed to reflect a different quantity ratio, average prison sentences for crack

cocaine defendants could - assuming constant quantities of drugs - range from approximately

months, at a quantity ratio of 1:1, to 111 months, at a quantity ratio of

50:1

h17 At quantity ratios of

20:1 and lower, all crack defendants would receive a reduction in the sentence imposed. Changes

to the ratio of crack to powder cocaine amounts used in determining base offense levels would have

the following effects:

" Reflects the sentence imposed on those defendantsincluded in the model, 4,867 during 1999 and 4,691 during 2000. Observations were

excluded from the model if complete guideline application and/or sentencinginformation was not available.

117 Estimates represent combined 1999-2000 data.

Table J. Simulated Sentencing Model: Estimates of Prison Term to be Imposed on Crack

Defendants Convicted

the Federal Courts of Trafficking Crack Cocaine, 1999-2000.

1999

2000

Ratio of

cocaine

powder to

crack cocaine

Average

prison term

imposed

(mos.)

Proportion

defendants

impacted

Ratio to

Powder

(average

sentence is

77.8)

Average

prison

term

imposed

(mos.)

Proportion

defendants

impacted

Ratio to

Powder

(average

sentence is

74.8)

100:1 (actual)

120.0

1.5:1

117.6

1.6:1

50:1

112.4

56%

1.4:1

109.1

57%

1.5:1

20:1

95.6

99%

1.2:1

91.2

100%

1.2:1

10:1 80.7 99% 1:1 77.0 100%

1:1

5:1

70.6 100% 0.9:1 67.2 100%

0.9:1

2:1 56.2 100% 0.7:1

53.0

100%

0.7:1

1:1 46.3 100% 0.6:1 43.1 100%

0.6:1

Number of

defendants' 4,867 4,691

Notes:

1. Excludes observations for which complete guideline application and/or sentencing information

was not available.

Data source: U.S. Sentencing Commission, monitoring data file, 1999- 2000.

Source: Bureau of Justice Statistics, Federal Justice Statistics Program.

It is important to note that this model cannot account for changes in law enforcement or

prosecutorial behavior.

Moreover, it is not clear that changing the ratio will have any effect on the number of

minorities sentenced for committing cocaine crimes (although it would effect the number of months

served by a proportion of those defendants). A Sentencing Commission analysis using 1999 data

showed that Hispanics (who accounted for 44.0% of powder cocaine cases in 1999) would constitute

42.9% of cases affected by reducing the mandatory minimum trigger from 500 grams to 400. Blacks,

who comprised 35.7% of all powder offenders, constituted 31.6% of affected cases; Whites, who

comprised 18.8% of all offenders, constituted 24.3% of affected cases.

Reductions in crack offense penalties would primarily affect Black defendants. Based on

FYi 999 data, the Sentencing Commission estimates that if crack mandatory minimum triggers were

moved from five grams to 20 grams,

85.6%

of defendants affected by the change would be Black.

(In FY 1999, 84.8% of convicted crack offenders were Black.)

CONCLUSIONS:

Controlling for like amounts of cocaine, in 2000, crack defendants convicted of

trafficking in less than 25 grams of cocaine received an average sentence that was 4.8

times longer than the sentence received by an equivalent powder defendant.

However, at the upper end of the spectrum, the average sentence for a defendant

convicted of trafficking in between 15 and 49.9 kilograms of crack was only 2.4

times longer than the average sentence for a similarly-situated powder defendant. (In

the middle of the spectrum (400 to 499 grams), the ratio of the two sentences was

3.4:1).

For defendants who possessed weapons, the ratio between average crack and powder

sentences for lower amounts of cocaine was 2.9:1. For the highest amounts of

cocaine, the ratio was only 1.6:1. Defendants who possessed weapons had less of a

disparity in their sentences.

For defendants with the highest criminal history levels, the average sentence

for crack defendants ranged from 1.6 to 1.3 times longer (depending on the

amount of cocaine) than the average sentence for similarly-situated powder

defendants.

For defendants with the lowest criminal histories, the ratio between average

crack and powder sentences for the lowest amounts of drug 8.3:1. (This

disparity affected 1,637 (or 7%) of the 22,896 crack defendants examined in

this study.) But for offenders convicted of trafficking in higher amounts of

cocaine, the ratio of average crack to powder sentences was only 2:1.

The average sentence for trafficking in powder cocaine in 2000 was 74 months; the

average sentence for trafficking in crack cocaine was 117 months. The ratio of the

average crack and powder sentences was 1.6:1.

29

Appendix A. Selected sentencing characteristics of defendants convicted in the federal

courts for crack and powder cocaine offenses, 1999-2000.

CHARACTERISTIC

CRACK POWDER

Weight of drugs

Average

1.6kg

85.0

Median (SOth percentile)

83 g

3.4 kg

Criminal History Category

I

28.9% 61.3%

II

13.0%

12.4%

III

21.9%

13.2%

IV

12.0%

5.1%

V

7.2%

2.4%

VI

17.0%

5.6%

Type of drug offense

Trafficking

96.9 %

96.4 %

Communication facility

1.7%

2.7%

Simple possession

1.4 %

0.9 %

Departure Status

Upward

0.2% 0.2%

Substantial assistance

30.6 %

29.4 %

Other downward

8.1 %

8.9 %

Mandatory minimum based on drug quantity

(21 U.S.C. § 841)

82.0 %

75.7 %

Mandatory minimum for firearm use or possession

(18 U.S.C. §

924(c))

4.3 %

2.5 %

Guideline enhancement for weapon use or possession

(U.S.S.G.

§2D1.1(b)(1))

16.6%

8.6%

'Safety-valve' exemption from mandatory penalties

(18 U.S.C. §

3 553(e))

12.6%

31.0%

Acceptance of responsibility (U.S.S.G. §3El.l)

85.4%

88.3 %

Obstruction of justice

(U.S.S.G. Ch.3, Pt.C.)

4.5 %

3.9 %

Mitigating role adjustment (U,S,S,G. §3B1.2)

8.3 %

21,6%

Aggravating role adjustment (U.S.S.G.

§3131.1)

7.4%

7.9%

Number of defendants

5,012 5,345

Notes:

1. Excludes observations for which complete guideline application and/or sentencing information was not

available.

Data source: U.S. Sentencing Commission, Monitoring data file, fiscal year

Source: Bureau of Justice Statistics, Federal Justice Statistics Program.

Appendix B. Special Offender Characteristics by Amount, 1996

2000.

Crack Powder

BOL BOL

(Range) (Range)

Average

Crack

Sentence

Average

Powder

Sentence

Ratio

Number of

Crack

Defendants

Number of

Powder

Defendants

12-26 12

(0-20 g)

(0-25

4.8:1

5,194

527

No Weapon

5.8:1

4,292

462

Weapon

2.9:1

793

No Departure

5.6:1

3,473

370

SubstantialAssistance

4.2

1,271

113

Safety Valve

502

Other Downward Departure

29*

1.6:1

360

Criminal Historyl

8.3:1

1,637

321

Criminal History II

4.4:1

737

Criminal History III

4.6:1

1,088

Criminal History IV

15*

4.1:1

623

Criminal History V

16*

4.7:1

339

Criminal History VI

126

78*

1.6:1

770

Notes.'

n<50

Data source: US. Sentencing Commission, monitoring data file, 19

96-2000.

Source.' Office of Policy and Legislation, Criminal Division.

Crack Powder

BOL BOL

(Range) (Range)

Average

Crack

Sentence

Average

Powder

Sentence

Ratio

Number of

Crack

Defendants

Number of

Powder

Defendants

28-30 14

(20-50 g) (25-50 g)

4.4:1

3,111

315

No Weapon

4.8:1

2,495

265

Weapon

115

37*

3.1:1

548

No Departure

5.5:1

1,895

214

SubstantialAssistance

2.9:1

913

Safety Valve

Other Downward Departure

25*

2.8:1

254

Criminal Historyl

5.9:1

991

161

Criminal History II

3.9:1

456

Criminal History III

5:1

659

Criminal HistoiylV

25*

3.6:1

330

Criminal History V

107

38*

2.8:1

191

Criminal History VI

152

72*

2.1:1

484

Notes.'

n<50

Data source.' US. Sentencing Commission, monitor

ing data file, 19

96-2000.

Source.' Office of Policy and Legislation, Criminal Division.

Crack Powder

BOL BOL

(Range) (Range)

Average

Crack

Sentence

Average

Powder

Sentence

Ratio

Number of

Crack

Defendants

Number of

Powder

Defendants

32 16-18

(50-150 g) (50-200 g)

117

24 4.9:1

4,956

1,175

No Weapon

109

5.2:1

3,825

1,032

Weapon

152

3.6:1

980

124

No Departure

144

5.3:1

2,919

761

Substantial Assistance

5.2:1

313

Safety Valve

11.6:1

862

Other Downward Departure

3.8:1

332

Criminal History 1

5.4:1

1,628

643

Criminal History II

102

5.7:1

710

170

Criminal History III

113

4.5:1

1,003

173

Criminal History IV

131

4.7:1

570

Criminal History V

148

44*

3.4:1

258

Criminal History VI

202

2.2:1

787

Notes:

n<50

Data source: US. Sentencing Commission, monitoring data file, 19

96-2000.

Source: Office of Policy and Legislation, Criminal Division.

Crack Powder

BOL BOL

(Range) (Range)

Average

Crack

Sentence

Average

Powder

Sentence Ratio

Number of

Crack

Defendants

Number of

Powder

Defendants

34 20-24

(150-500 g) (200-500 g)

133

3.8:1

3,785

1,809

No Weapon

123

3.7:1

2880

1,594

Weapon

168

3:1

818

184

No Departure

169

4:1

2,082

1,113

SubstantialAssistance

3.6:1

1,381

516

Safety Valve

3.5:1

721

Other Downward Departure

117

4.3:1

236

153

Criminal History I

3.5:1

1,379

952

Criminal History II

119

4:1

521

270

Criminal History III

136

4:1

801

280

Criminal History IV

152

3:1

358

133

Criminal History V

177

57*

3.1:1

189

Criminal History VI

220

100

2.2:1

537

122

Notes.

n<50

Data source: US. Sentencing Commission, monitoring data file, 19

96-2000.

Source. Office of Policy and Legislation, Criminal Division.

Crack Powder

BOL BOL

(Range) (Range)

Average

Crack

Sentence

Average

Powder

Sentence

Ratio

Number of

Crack

Defendants

Number of

Powder

Defendants

36 26

(500g-1.5kg)

(500 g- 2 kg)

158

3.2:1

2,149

5,228

No Weapon

146

3.2:1

1,561

4,618

Weapon

197

2.3:1

524

493

No Departure

210

3.5:1

1,091

3,221

SubstantialAssistance

100

3.2:1

898

1,492

Safety Valve

2.6:1

333

2,164

Other Downward Departure

132

3.5:1

113

418

Criminal Histoiyl

113

3.1:1

780

3,196

Criminal History II

154

2.9:1

282

645

Criminal History III

166

2.9:1

440

743

Criminal History IV

193

2.8:1

217

228

Criminal History V

182

2.2:1

120

109

Criminal History VI

232

138

1.7:1

310

307

Notes:

n<50

Data source: US. Sentencing Commission, monitor

ing data file, 19

96-2000.

Source: Office of Policy and Legislation, Criminal Division.

Crack Powder

BOL BOL

(Range) (Range)

Average

Crack

Sentence

Average

Powder

Sentence

Ratio

Number of

Crack

Defendants

Number of

Powder

Defendants

38 28-38

(>1.5 kg) (>2 kg)

208

2.1:1

3,701

14,463

No Weapon

180

2:1

2,359

12,423

Weapon

261

166

1.6:1

1,246

1,580

No Departure

291

127

2.3:1

1,815

4,470

Substantial Assistance

120

1.9:1

1,621

4,806

Safety Valve

1.5:1

410

5396

Criminal History I

166

2.2:1

1,241

9,517

Criminal History II

199

105 1.9:1

495

1,659

Criminal History III

216

121

1.8:1

810

1,701

Criminal History IV

238

137 1.7:1

406

643

Criminal History V

241

145

1.7:1

209

236

Criminal History VI

264

196

1.3:1

539

706

Notes:

*

n<50

Data source: US. Sentencing Commission, monitor

ing data file, 19

96-2000.

Source: Office of Policy and Legislation, Criminal Division.

Appendix C: Simulated sentencing model

The effect of the 100:1 quantity ratio between applicable sentences imposed on defendants

convicted of trafficking crack cocaine can also be measured by adjusting known parameters applied at

sentencing and theoretically re-sentencing defendants based on the adjusted parameters. For instance, for

defendants sentenced under the Federal sentencing guidelines, the applicable guideline sentencing range

can be adjusted through such factors as the guideline base offense level, specific offense characteristics,

criminal history category, and/or applicable statutory minima and maxima.

One of the fundamental concepts of the simulated sentencing model is the method for re-sentencing

defendants. Assuming a starting point of the midpoint of the applicable guideline range, the sentencing

court fashions as sentence within the guideline range - upward or downward - to reflect the specific

circumstances of the case. Additionally, if the applicable guideline range does not adequately reflect the

circumstances of the case, the sentencing court may fashion a sentence outside of the guideline range

through a departure. Accordingly, the

position relative to the guideline range,

reflects the exercise of

judicial discretion. Algebraically,

is expressed as -

GLMJN

(Equation 2)

GLMJN

where: S = the prison term imposed

GLM,N

is the minimum of the effective guideline sentencing range

GLM

is the maximum of the effective guideline sentencing range

Following adjustments to applicable sentencing parameters, a new sentence must be assigned to

reflect the changed circumstances. In most instances, the new sentence,

SI,

is a reflection of the actual

sentence in the new guideline range. Algebraically, is expressed as -

GLJJT +

(GL

GLN) D

(Equation 3)

where:-

GLJIN

is the minimum of the adjusted guideline sentencing range

GLMAXi5

the maximum of the adjusted guideline sentencing range

For example, if a defendant originally received a sentence of 65 months in the guideline range of

63 to 78 months, the defendant would receive a sentence of 42 months in the guideline range of 41 to 51

months.

In certain circumstances, however, the proportional re-sentencing model (equation # 3) will not

accommodate the changed circumstances such as in those cases where the defendant was originally

sentenced to life in prison and/or the guideline sentencing range included life imprisonment as a sentencing

option, sentences within Zones A, B, and C of the guideline sentencing table, and certain departure

sentences. The model accommodates these circumstance as follows -

A. For defendants who originally received life imprisonment and the adjusted guideline sentencing

range does not include life, the defendant is re-sentenced to the mid-point of the adjusted range.

For defendants who did not receive life imprisonment and the new guideline range includes life, the

defendant will be re-sentenced to life if the original sentence was above the midpoint of the

guideline range; otherwise the defendant will receive a sentence proportionate to the original

sentence.

B. Sentences within Zones A, B, and C of the guideline sentencing table pose a unique problem due

to the availability of probationary sentences and alternatives to incarceration such as home

confinement, community confinement, and intermittent confinement. For defendants re-sentenced

to a sentencing range within Zones A, B, and C, the new sentence reflects the average term of

imprisonment actually imposed on defendants sentenced within that guideline range.

C. In the case of non-substantial assistance departures, it was assumed that the sentencing court

fashioned the particular sentence for a specific reason. Consequently, in these cases, new

sentence would not differ from the original sentence except where

(1)

the new guideline range is

below the original sentence in which case the defendant would receive a sentence at the guideline

minimum, and (2) the new guideline range is above the original sentence in which case the

defendant would receive a sentence at the guideline maximum.