Legal Commentary

Obama Backs Crack-Powder Cocaine Equalization at Today's Hearing

By Jeralyn

As I wrote yesterday, the Senate Judiciary Committee is holding a hearing this morning on the need to revise the disparate 100:1 ratio of penalties for crack and powder cocaine. Here is Assistant Attorney General Lanny Breuer's written testimony.

The Administration believes Congress’s goal should be to completely eliminate the sentencing disparity between crack cocaine and powder cocaine.

Until that change from Congress comes:

However, we recognize that federal courts have the authority to sentence outside the guidelines in crack cases or even to create their own quantity ratio. Our prosecutors will inform courts that they should act within their discretion to fashion a sentence that is consistent with the objectives of 18 U.S.C. § 3553(a) and our prosecutors will bring the relevant case-specific facts to the courts’ attention.

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Until Congress changes or eliminates the mandatory minimum thresholds, judges right now don't have the ability to use their discretion to go under those amounts.

Mandatory minimums trump the Sentencing Guidelines. Right now, by law, the Judge cannot depart below a five year mandatory minimum sentence for cases involving between 5 and 50 grams of crack or ten years for cases involving more than 50 grams of crack -- unless the safety valve applies or the Government requests a departure, which it can do for only one reason: if the defendant cooperated in the investigation or prosecution of another person. (The levels for powder are five years for between 500 grams and 5 kilos and ten years for more than 5 kilos.)

Until we get rid of mandatory minimums entirely, we need a law that gives judges the authority to depart from mandatory minimums on their own motion.

The safety valve (see section (f)) is limited to defendants with no more than one criminal history point. Minor offenses and deferred judgments in state courts count for one point. DUI's count for a point. There are far too many deserving defendants with more than one point who can't benefit from the safety valve. The safety valve needs to be expanded.

It's important for people to realize the sentencing guidelines, which are no longer mandatory, are only one factor in the equation. We need to get rid of the mandatory minimums and until we do, give judges the discretion to go below them on their own motion and expand eligibility for the safety valve.

Full post as published by TalkLeft on April 29, 2009 (boomark / email).