Examining Crack Cocaine Sentencing in a Post- Kimbrough World

08-CASSIDY.DOC
1/29/2009 3:29:23 PM
2009] EXAMINING CRACK COCAINE SENTENCING IN A POST-KIMBROUGH WORLD 133
social scientists have studied the effects of mandatory minimums and the
crack/powder disparity and have concluded that both have contributed to
racial discrimination 227 and overcrowding in prisons. 228 Moreover,
studies show harsh drug penalties fall well short of deterring crime and
are largely counterproductive. 229
Of course, these studies have been around for more than a decade,
and the Commission presented much of this information to Congress
when it issued its 1995, 1997, and 2002 reports. 230 In the past, much of
this information was ignored by Congress, but there are reasons to
believe Congress may now be listening. During the 2007-2008
legislative session, six crack cocaine reform bills were introduced. 231
And while most of the proposed legislation appears to be at a standstill,
crime policy is often politically driven and 2008 was a presidential
election year. Perhaps a better indicator of Congress’ willingness to
change is its handling of the dramatic rise of methamphetamine, which
227. Id. (“The 100:1 disparity is widely seen as a blatant demonstration of racial discrimination
by the criminal justice system . . . . Similar concerns surround racial profiling in police stops and
racial disproportionality in prison, but in neither of these kinds of situations is the disparity so
explicitly built into the law.”).
228. See Marc Mauer and Ryan S. King, A 25-Year Quagmire: The War on Drugs and Its
Impact on American Society, THE SENTENCING PROJECT, September 2007, at 2,
http://www.sentencingproject.org/Admin/Documents/ publications/dp_25yearquagmire.pdf (finding
“[d]rug offenders in prisons and jails have increased 1100% since 1980”).
229. See, e.g., id. at 17 (stating that “there is some evidence that simply warehousing
individuals in prison may have a criminogenic effect, as research has found higher rates of
recidivism for persons sentenced to prison rather than probation” and suggesting treatment is more
cost effective); See also PEW Center on the States, The Impact of Incarceration on Crime: Two
National Experts Weigh In, PEW PUBLIC SAFETY PERFORMANCE PROJECT, Apr. 2008, at 1,
available at http://www.pewcenteronthestates.org/uploadedFiles/Crime%20Incarceration%20QA
.pdf (finding incapacitating drug dealers has little effect on reducing drug dealing in society because
“the [drug] market is resilient in responding to the demand, and recruits replacements for those sent
to prison”).
230. See supra note 67 and accompanying text.
231. Fairness in Cocaine Sentencing Act of 2008, H.R. 5035, 110th Cong. (2008) (eliminating
the distinction between crack and powder cocaine and removing mandatory minimum provisions);
Drug Sentencing Reform and Cocaine Kingpin Trafficking Act of 2007, S. 1711, 110th Cong.
(2007) (reducing the crack/powder disparity by imposing a single mandatory minimum at the
current powder cocaine levels); Fairness in Drug Sentencing Act of 2007, S. 1685, 110th Cong.
(2007) (raising the 5 year mandatory minimum threshold from 5 to 25 grams of crack and the 10
year threshold from 50 to 250 grams of crack, which reduces the disparity from 100:1 to 20:1);
Drug Sentencing Reform Act of 2007, S. 1383, 110th Cong. (2007) (lowering the 10 year threshold
for powder from 5 kilos to 4 kilos while increasing the threshold for crack from 50 grams to 200
grams, resulting in a disparity of 4 kilos powder to 200 grams crack); Powder-Crack Cocaine
Penalty Equalization Act of 2007, H.R. 79, 110th Cong. (2007) (raising the powder levels to meet
the crack levels); Crack-Cocaine Equitable Sentencing Act of 2007, H.R. 460, 110th Cong. (2007)
(equalizing the crack and powder penalties at the powder level).