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Cocaine Cases in Limbo as End Looms for Sentencing Disparity
New Jersey Law Journal
May 29, 2009
The Obama administration's call for the elimination of mandatory jail terms for certain crack-cocaine offenders is beginning to filter down to U.S. Attorneys' Offices, but not fast enough for defense lawyers.
The administration announced in April that it favors reform of a 20-year-old law that mandates a sentence of at least five years for possession of 500 grams of powder cocaine with intent to distribute and the same penalty for five grams of crack cocaine.
Critics of the 100-1 disparity, including the U.S. Sentencing Commission, have said there is no crime-prevention rationale for treating crack-cocaine offenses more harshly. Moreover, the law has led to lengthy prison terms for users of crack cocaine who sell small amounts -- mostly African-Americans -- while giving lenience to sellers of the equivalent amount of powder cocaine.
In a change of policy from the Bush years, the current administration has sided with the critics, most recently in testimony before a House Judiciary subcommittee on Thursday by Assistant Attorney General Lanny Breuer, head of the Criminal Division.
Bills to end the disparity have been introduced in Congress and Breuer told the legislators that the administration also will develop recommendations. Most states, including New Jersey, do not make distinctions between crack and powder cocaine for sentencing purposes.
Some defense lawyers say the Justice Department doesn't need to wait for legislation to end the disparity. Yet it is impossible to tell from the Justice Department's guidance to U.S. attorneys whether anything has changed in the trenches.
And while the government figures out what it wants to do, a request for adjournments of sentencings may be one of the defense strategies.
Lawyers handling three cases in New Jersey, including Federal Public Defender Richard Coughlin, say they will seek adjournments of crack-cocaine sentencings pending a decision by the U.S. Attorney's Office on whether the administration's policy statement should be followed by specific action and, if so, what action.
The chief issue is what the Justice Department had in mind when it sent guidance to U.S. attorneys after Breuer's April 29 testimony, at a Senate judiciary subcommittee hearing, calling for an end to the disparity.
Justice Department spokesman Ross Weingarten declines to discuss what the department told U.S. attorneys beyond saying the instructions were in keeping with Breuer's testimony. And there isn't much meat in the version that U.S. Attorneys' Offices are circulating to defense counsel either in memo form or in conversation.
Princeton solo James Murphy, a a member of the Criminal Justice Act defense panel in New Jersey and one of the lawyers seeking an adjournment, says a prosecutor read the guidance to him.
First, the guidance says, courts should be told that the Justice Department "believes Congress and the United States Sentencing Commission should eliminate the crack/powder cocaine disparity."
Judges should be cautioned that Congress has not yet determined "whether or how" to achieve a better sentencing scheme.
Courts should be told, "Until Congress acts, the Department of Justice recognizes courts must exercise their discretion under existing case law to fashion a sentence that is consistent with the objectives of 18 U.S.C. 3553(a)." That is a reference to the provision that enunciates the general principles of sentencing.
Michael Drewniak, a spokesman for the U.S. Attorney's Office in Newark, declines to comment.
But Jean Barrett of Ruhnke & Barrett in Montclair says prosecutors could cut through the verbiage and say the office takes the position that it will treat crack cocaine as it does powder cocaine.
Michael Nachmanoff, the federal public defender in Alexandria, Va., who testified before Congress last year on behalf of his colleagues around the country, says prosecutors can put the policy into effect, particularly in its charges in cases involving 50 or more grams of crack.
Conviction with that amount requires a 10-year minimum sentence, the same as for more than 5,000 grams of powder cocaine.
"Lanny Breuer said point blank that the ratio should be 1-to-1," Nachmanoff says. "Prosecutors around the country today could start charging on a 1-1 ratio and avoid the mandatory minimums."
Cases in the pipeline would be more difficult, but when it comes time to sentence those offenders, prosecutors could seek to vacate the conviction with the idea of following with an information charging possession of lesser amount that don't trigger the mandatory sentences, he says.
"Unfortunately, there is a gap between the expression of a changed policy on the part of the assistant attorney general and what is happening in the field," he says.
He says that in talking to defense lawyers around the country, "what we see is there is a huge amount of variation in the way prosecutors are handling these cases, even within a district to district."
"In some parts of the country, prosecutors are telling a judge the 1-1 ratio is the way to go, but it sounds like prosecutors in New Jersey or other states maybe aren't saying that clearly or acting that way," Nachmanoff says.
In the meantime, defense lawyers are attaching copies of Breuer's testimony to their sentencing pleadings "and telling judges, 'this is the position of the Justice Department, whatever the people in the field are saying,' " Nachmanoff says.
John Whipple of Arseneault, Whipple, Farmer, Fassett & Azzarello in Chatham suggests, however, it may not be so simple to avoid the 100-1 ratio for cases coming up for sentencing.
It's true that judges can grant variances from sentence guidelines and impose a penalty far below the guideline range.
"The problem is you can't do that with a mandatory minimum parole disqualifier, in a federal sentence," says Whipple, who last week concluded a term as president of the Association of Criminal Defense Lawyers-New Jersey.
In 2007, the U.S. Sentencing Commission announced changes in the guidelines for crack offenses and said they would be retroactive, setting up the possible resentencing of up to 19,500 prisoners. The commission estimated that 82 percent of the prisoners affected were black.
