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WASHINGTON � Five years after unsuccessfully pressing Congress to address the controversial 100-to-1 sentencing disparity between crack and powder cocaine, the U.S. Sentencing Commission recently approved an amendment to the sentencing guidelines that could reduce sentences by an average of 16 months for approximately 78% of defendants convicted of crack-cocaine offenses. The commission, acting at its April 27 meeting, described the amendment as a partial solution to some of the “urgent and compelling” problems associated with the crack-powder disparity. Commission members also voted to send a report to Congress by May 15 with recommendations that lawmakers take “prompt action” on that issue, which, they say, continues to undermine significantly the objectives of the nation’s sentencing reform law. The guideline amendment, which modifies the drug-quantity thresholds in the guidelines, could have a direct impact on more than 4,000 federal sentencing cases per year, according to sentencing scholar Douglas Berman of Ohio State University Michael E. Moritz College of Law, who questions whether any other single guideline amendment has had such a potentially broad impact. Federal drug laws, enacted in the mid-1980s, treat trafficking and simple possession of crack � an inexpensive smoked form of cocaine � more severely than powder cocaine. Distributing five grams of crack, for example, carries a mandatory minimum prison sentence of five years, while distributing 500 grams of powder cocaine carries the same prison term. Downward adjustment The commission responded to those laws by incorporating the statutory mandatory minimum sentences into the guidelines to provide sentencing ranges that actually are above the statutory mandatory minimum penalties. But under the April 27 amendment, the guideline sentencing range for a first-time trafficking offense involving five grams of crack cocaine, for example, will be 51 to 63 months instead of the current 63 to 78 months. The American Civil Liberties Union said it was “disappointed” the commission did not recommend equalizing the 100-to-1 sentencing disparity between crack and powder cocaine, “despite the wealth of research and data they’ve collected over the years indicating no medical or legal reason for the disparity,” said Caroline Fredrickson, director of the ACLU’s Washington office. The commission itself, in its 2002 report to Congress, found that the disparity disproportionately affected minorities and low-level offenders. At a public hearing in March, commission member U.S. District Judge Ruben Castillo said of the 2002 report: “I still believe it was right then and I believe it’s right now.” But, he added, “We have, at least I can say I have, been as frustrated as anyone else over the five-year period.” The commission’s amendment, said Fredrickson, was a “small step in the right direction.” Critics of the crack-powder disparity suggest the Democratic-controlled Congress may be more inclined to act on the issue than prior Congresses. Representative Charles Rangel, D-N.Y., chairman of the House Ways and Means Committee, has sponsored a bill to eliminate the disparity. The Bush administration has opposed changes in the past, but in testimony before the commission in March, U.S. Attorney John C. Richter, chairman of the Justice Department’s advisory subcommittee on sentencing, said the administration recognizes that the 100-to-1 ratio “appears to many to be an example of unwarranted racial disparity in sentencing.” He said it may be “appropriate” for the administration, Congress and the commission to address the ratio between the drug-weight triggers for mandatory minimum and guidelines sentences during the next few months. The commission, however, chose to act now. Its amendment is effective on Nov. 1 unless rejected by Congress. A U.S. Supreme Court decision made the sentencing guidelines advisory, not mandatory, in practice. In reaching its decision, the commission held two public hearings and heard expert testimony from the Bush administration, the federal judiciary, defense attorneys, state and local law enforcement representatives, medical and treatment experts, academicians, social scientists and interested community representatives.

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