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Judge Paul Friedman never liked the 1986 sentencing law that mandated harsh punishment for people convicted of possessing crack cocaine. It just didn’t seem fair to him that someone caught peddling five grams of crack faced a mandatory five-year term, while a coke dealer had to be holding 500 grams of powder to get the same jail time. Yet Friedman could do little about it until January 2005, when the Supreme Court ruled in United States v. Booker that federal sentencing guidelines were advisory. Since then, Friedman, of the U.S. District Court for the District of Columbia, has sentenced about a dozen crack-possession defendants to prison terms lower than those called for by the guidelines. Instead of using the punishment scheme set by Congress 20 years ago, which created a 100-to-1 ratio between the amount of powder cocaine and crack cocaine needed to trigger a mandatory minimum sentence, Friedman has looked to more recent policy recommendations from the U.S. Sentencing Commission, which suggests a 20-to-1 ratio. But a case scheduled for argument before the U.S. Court of Appeals for the D.C. Circuit this week could take that freedom away from judges like Friedman. On Nov. 20 a three-judge panel will hear a challenge from a defendant sentenced by another D.C. federal judge who refused to deviate from the 1986 law. Seven other circuit courts that have looked at guideline sentencing for crack possession since Booker have rejected any categorical departure from the 100-to-1 ratio. If the D.C. Circuit panel, consisting of Chief Judge Douglas Ginsburg and Judges A. Raymond Randolph and Judith Rogers, comes to the same conclusion, Friedman could be forced to resentence offenders to much longer prison terms. One of those might be Robert Harris, a D.C. native who, at age 21, pleaded guilty to possession with intent to distribute more than 50 grams of crack. In March, Friedman sentenced him to 19 months in prison, although sentencing guidelines called for 10 years. “Have you ever seen a kid at Christmastime?” says Harris’ lawyer, Idus Daniel, describing his client’s reaction to the sentence. The upcoming D.C. Circuit argument illustrates the difficulties trial judges have had interpreting the sentencing guidelines in the post- Booker era. The Supreme Court may clear up some of the confusion when it hears arguments in Claiborne v. United States, a case that will examine whether and under what conditions a sentence below the guideline range is reasonable. The Court granted cert earlier this month and has yet to schedule oral arguments. “It’s a national debate that has been raging since Booker came down,” says Douglas Berman, a law professor at Ohio State University who runs a blog on sentencing. It’s not just judges who have struggled with this sentencing issue. Just last week the U.S. Sentencing Commission reopened public hearings on whether to change the guideline ratio. A bevy of outside groups have urged the commission to push for congressional action, something even the Justice Department’s representative, testifying before the commission, acknowledged might be an “appropriate” move. CRACKING DOWN ON COKE The disparity in federal sentencing between crack and powder cases stems from the Anti-Drug Abuse Act of 1986, in which Congress set a 100-to-1 ratio for the amount of crack and cocaine needed to trigger a five- or 10-year mandatory minimum sentence. The policy was an attempt by federal lawmakers to force the Justice Department to focus on high-level drug dealers and ensure that they were punished harshly. But in 1995 the Sentencing Commission — a bipartisan group that develops sentencing guidelines and policy suggestions, made up of seven voting members appointed by the president — resoundingly concluded that the 100-to-1 ratio had failed. It is a position the body has affirmed on several occasions since and one that many advocacy groups, federal judges, and defense attorneys have echoed. “The Commission firmly and unanimously believes that the current federal cocaine sentencing policy is unjustified and fails to meet the sentencing objectives set forth by Congress,” the commission wrote in a 2002 report. Key to the establishment of the original ratio was the belief that crack was highly associated with violence. But the sentencing commission concluded subsequent data did not show a strong correlation between crack and violence. Indeed, according to the 2002 report, two-thirds of crack cases did not involve any violence. This meant, the commission said, that the penalties exaggerated the harm of crack, which, while more addictive than the powder form of cocaine, was not different enough to warrant such disparate punishment. And although there were concerns that the prenatal effects on babies were far greater when mothers smoked crack during pregnancy than when mothers used powder cocaine, those concerns did not measure up to scientific evidence. The commission also noted that enforcement targeted mostly lower-level offenders, rather than the kingpins the stiff penalties had been crafted for. The 2002 report cited Department of Justice statistics showing that defendants convicted of possessing less than 25 grams of crack receive sentences 4.8 times longer than those convicted of possessing the same amount of powder cocaine. The gap in sentencing widens to five years for those caught dealing, and it is even broader for those with little or no criminal history who are convicted of possessing the smallest amount of the drug. Perhaps the most significant effect of the sentencing disparity, the commission found, was the disproportionate impact on minorities and the poor. In 2000, the latest year of offender data available to the commission, 85 percent of crack defendants were black. By contrast, more than half of powder cocaine offenders were Hispanic, and 17 percent were white. Despite overwhelming opposition to the 1986 law, the commission was divided when it asked Congress to make changes in 1995. In a 4-3 vote, the commission elected to ask Congress to lower the sentence to a 1-to-1 ratio between crack and powder. Congress rejected the request, in part because of the split among commission members. The commission submitted a proposal to Congress for a 5-to-1 ratio in 1997 and for a 20-to-1 ratio in 2002. No action was taken. A bill that would have made the ratio 10-to-1 passed the Senate in 2000 but never made it out of the House. IN THE HANDS OF THE JUDICIARY Without congressional involvement, the crack-cocaine sentencing disparity remained in place until Booker. One of the first judges to deviate from the guidelines after Booker was Judge Lynn Adelman of the Eastern District of Wisconsin, who, in United States v. Smith, imposed a sentence based on the 20-to-1 ratio. Others followed her lead. In the District, Friedman isn’t the only judge to sentence below the guidelines. In March 2005, Judge James Robertson sentenced two crack dealers below the guideline level, in part, he wrote, because of “the astonishingly high ratio of the weight of cocaine . . . to that of cocaine base, that will yield the same punishment.” More recently, Judge Richard Roberts has begun issuing lower sentences, although he hasn’t followed a strict formula, as Friedman has. Other D.C. district judges, while publicly or privately criticizing the disparity, have been reluctant to deviate from the guidelines. Judge John Bates wrote in a January opinion for a crack defendant that despite his discomfort with the guidelines, “it is simply not up to federal judges to reject as bad policy a legislative determination made by Congress.” Speaking before the Sentencing Commission on Nov. 14, Judge Reggie Walton agreed. But he, too, urged the commission to rethink its policy. “It seems to me that the vast disparity has to be a concern for anyone who cares about fairness,” Walton, who is known for his tough sentences, told the commission. The disparity, he said, has created a problematic perception within the black community that the legal system is racist and has hurt black communities by locking away so many men — including fathers — for such extended periods of time. “I hope the powers that be will have the will to do something to rectify this problem,” Walton said. For now, Friedman and the D.C. defendants must look to the D.C. Circuit case, which stems from the October 2005 sentencing of Lorenzo Pickett, who pleaded guilty to one count of possession with intent to distribute 50 grams of crack. At sentencing, Pickett’s lawyer asked Judge Gladys Kessler to depart from the 100-to-1 guideline based on the Booker decision. Kessler declined, giving Pickett 121 months. Federal public defender A.J. Kramer appealed the sentence, arguing that a downward departure from the guidelines is necessary because the disparity violates the equal protection clause. Assistant U.S. Attorney Valinda Jones, who will argue the matter for the government, wrote in her brief that such a departure would go against the policy choice of Congress and “would lead to unwarranted disparities in sentences for similarly situated defendants.” They are arguments largely similar to those made in other circuits. Some courts, such as those in the 3rd Circuit, have suggested that some divergence is acceptable, so long as the rationale is specific to the case and not based on any proscribed policy objection to the 100-to-1 ratio. Although Friedman acknowledges the potential problem of disparate sentencing among judges, he told Harris during his March hearing that “it seems to me that after Booker, that judges ought not to perpetuate a regime that the commission itself says is unfair and says creates unwarranted disparity.”
Emma Schwartz can be contacted at [email protected].

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