Tuesday, March 16, 2010

Senate Judiciary Committee proposes reducing but not eliminating the Crack/Powder Cocaine sentencing disparities


Last Thursday, the U.S. Senate Judiciary Committee, took action on S. 1789, the Fair Sentencing Act of 2009.

The Committee voted unanimously to repeal the five-year mandatory sentence for possession of five grams of crack cocaine. That was a good thing because Crack (used disproportionately by African Americans) is actually the only drug that carried a mandatory minimum sentence for mere possession.

But the Committee stopped short of eliminating the Crack/Powder Cocaine sentencing disparities altogether. Instead, they reduced the sentencing ratio from 100:1 down to a ratio of approximately 20:1. If enacted, the bill would not be retroactive.

In response to the vote of the Senate Judiciary Committee, the NAACP Legal Defense Fund issued the following statement:

NAACP LDF: We are deeply troubled by the action of the Senate Judiciary Committee on Thursday refusing to eliminate the unjustified, discriminatory sentencing disparity between the powder and crack forms of cocaine. Acknowledging that (1) there is no justification whatsoever for the disparity in sentencing between powder and crack cocaine adopted by Congress twenty-four years ago and (2) the disparity has a devastating disparate impact on African Americans, the Committee chose to merely reduce the problem – not solve it.

There is no serious dispute that the crack/powder disparity needs to be eliminated. There is equally powerful political support for fixing the problem now.

• The United States Sentencing Commission concluded that eliminating the 100:1 sentencing disparity would do more to reduce the sentencing gap between blacks and whites "than any other single policy change" and would "dramatically improve the fairness of the federal sentencing system.

• As a candidate, President Obama called for elimination of the disparity stating: “the disparity between crack and powder-based cocaine is wrong, cannot be justified and should be eliminated.”

• Attorney General Eric Holder has stated that “[t]his Administration firmly believes that the disparity in crack and powder cocaine sentences is unwarranted, creates a perception of unfairness, and must be eliminated.”

• Lanny Bruer, Assistant Attorney General, Criminal Division testified that “we cannot ignore the mounting evidence that the current cocaine sentencing disparity is difficult to justify based on the facts and science. . . [t]he Administration believes Congress’s goal should be to completely eliminate the sentencing disparity between crack cocaine and powder cocaine.”

• The House of Representatives Judiciary Committee reported legislation to completely eliminate the disparity between powder and crack cocaine, H.R 3245, which awaits consideration by the full House.

• Federal Judges appointed by Republicans and who served in Republican Administrations have called for an end to the disparity.

• Judge Reggie B. Walton- Associate Director of the Office of Drug Control Policy under President George H.W. Bush and appointed by President George W. Bush to the Federal Bench, testified about “the agony of having to enforce a law that one believes is fundamentally unfair and disproportionately impacts individuals who look like me.”

• Judge Michael McConnell of the Tenth Circuit Court of Appeals, who was nominated to that position by President George W. Bush and who served in the Department of Justice during the Regan Administration, has called the federal crack cocaine laws "virtually indefensible."


Admittedly, the Committee’s reported legislation is an improvement over current law. We also acknowledge that proponents of reform supported this action only because they believed it was the only way to achieve some progress. But one thing remains clear: compromise means continued discrimination.

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