Written Statement Submitted by Carol Chodroff, US Advocacy Director, to the House Judiciary Committee, Subcommittee on Crime, Terrorism, and Homeland Security
February 26, 2008

Human Rights Watch urges Congress to pass legislation to remedy the disproportionately harsh and racially discriminatory penal sanctions for federal crack and cocaine offenses. While the public health, social, and economic consequences of the use and sale of cocaine—in any form—warrant public concern, they do not justify disproportionate prison sentences that are racially discriminatory, violate US treaty obligations, and defy basic principles of criminal justice.

1. The Racially Disproportionate Impact of Federal Cocaine Sentencing Policy Violates US Treaty Obligations.

Federal crack cocaine offenders face criminal sentences that are uniquely severe compared to those imposed on other federal drug offenders. The current sentencing structure for cocaine offenses imposes five- and ten-year mandatory minimum sentences for threshold quantities of cocaine. Under what is commonly referred to as the “100-to-1” cocaine sentencing disparity, it takes one hundred times as much powder cocaine as crack cocaine to trigger the federal mandatory minimums. By virtue of the 100-to-1 differential, sentences for crack offenders are far higher than those for powder cocaine offenders who engage in equivalent conduct. Crack cocaine is also the only drug whose simple possession triggers a mandatory prison sentence for first-time offenders.

African Americans bear the brunt of the uniquely severe sentences meted out to crack offenders under the federal sentencing laws. Although available evidence indicates there are more white cocaine offenders than black, data from the United States Sentencing Commission reveal that in 2000, over 84 percent of federal crack defendants were African American, a proportion that did not vary significantly throughout the 1990s.1

The racially disproportionate nature of the crack/powder sentencing differential is inconsistent with the United States’s obligation to comply with the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), a treaty ratified by the United States in 1994.2 ICERD requires states parties “to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, … to equality before the law,” including “the right to equal treatment before the tribunals and all other organs administering justice.”3

Racial disparities in law enforcement do not violate the US Constitution, as long as they are not the result of discriminatory intent. ICERD, by contrast, imposes no discriminatory intent requirement, and prohibits government policies that have racially discriminatory effects:

In this Convention, the term “racial discrimination” shall mean any distinction, exclusion, restriction or preference based on race, color, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.4

Thus, the Committee on the Elimination of Racial Discrimination, which monitors compliance with ICERD, has stated that “[i]n seeking to determine whether an action has an effect contrary to the Convention, it will look to see whether that action has an unjustifiable disparate impact upon a group distinguished by race, color, descent, or national or ethnic origin.”5

ICERD proscribes race-neutral practices curtailing fundamental rights that unnecessarily create statistically significant racial disparities, even in the absence of racial animus. Under ICERD, governments may not engage in malign neglect; that is, they may not ignore the need to secure equal treatment of all racial and ethnic groups, but rather, must act affirmatively to prevent or end policies with unjustified discriminatory impacts.6

Specifically with regard to the criminal justice system, the Committee has instructed that “States should ensure that the courts do not apply harsher punishments solely because of an accused person’s membership of a specific racial or ethnic group,” and added that “[s]pecial attention should be paid in this regard to the system of minimum punishments and obligatory detention applicable to certain offences.”7

As explained below, there is no rational basis for the 100-to-1 sentencing differential. Accordingly, the disparate impact of this policy upon African Americans violates US treaty obligations under ICERD.

2. The 100-to-1 Sentencing Differential Defies Basic Principles of Criminal Justice and Common Sense.

When Congress enacted the Anti-Drug Abuse Act of 1986, little was known about crack cocaine. Assumptions about the drug drove Congress to adopt uniquely severe penalties for crack offenders. Now, 22 years later, those assumptions have either been disproved or are no longer operative. No inherent differences between crack and powder cocaine justify the 100-to-1 sentencing differential. The two substances are pharmacologically identical and have similar physiological effects.8 An abundance of empirical data reveals that the inherent dangers of crack do not differ significantly from those of powder cocaine, and that harsh federal sentences have had little impact on the demand for or the availability of the drug.9 Moreover, the initial violence that accompanied competition among drug groups seeking control over distribution channels in a new drug market in the 1980s has greatly subsided.

The harsh federal sentencing structure for crack has resulted in the incarceration of thousands of low-level offenders, excessively severe sentences for such offenders, a staggering growth in the federal prison population, and a waste of public resources. Human Rights Watch is unaware of any reasoned basis today for retaining sentences for crack offenders that are so much heavier than those for powder cocaine offenders.10

A street-level dealer of crack cocaine should not be treated more harshly than a comparable street-level dealer of powder cocaine. We urge Congress to eliminate disparate treatment of crack cocaine offenders and powder cocaine offenders who engage in equivalent conduct. We believe the disparities should be eliminated by increasing the quantities of crack required for a given sentence—not by reducing the requisite quantities of powder. In its 2007 report, the United States Sentencing Commission recommends that Congress reject addressing the 100-to-1 drug quantity ratio by decreasing the five-year and ten-year statutory mandatory minimum threshold quantities for powder cocaine offenses because “[T]here is no evidence to justify such an increase in quantity-based penalties for powder cocaine offenses.”11

While eliminating the crack/powder sentencing disparity is a critical step, it is not sufficient to reintroduce fairness and proportionality into federal sentencing laws. Human Rights Watch urges Congress to eliminate mandatory minimum sentencing laws that dictate prison sentences based solely on the quantity and type of the drug sold. Harsh penalties based on the arbitrary factors of drug type and quantity fail to distinguish between varying levels of culpability, and fail to ensure that those who occupy more senior positions in drug organizations receive higher sentences than peripheral participants. The current sentencing scheme creates arbitrary sentencing cliffs where a tiny additional amount of drugs can yield vastly higher penalties. The current structure also permits law enforcement to charge street-level sellers with quantities that reflect the aggregate total of numerous sales. Under conspiracy law, low-level participants in a drug enterprise can be sentenced on the basis of drug quantities handled by the entire undertaking.

Congress should rewrite federal drug sentencing laws to return to the judiciary its traditional role of tailoring sentences to the conduct of the individual defendant. Offenders who differ in terms of conduct, danger to the community, culpability, and other factors relevant to the purposes of sentencing should not be treated identically. Judges should be able to exercise their informed judgment and discretion in crafting effective and proportionate sentences in each case. Guidance from Congress and the United States Sentencing Commission can promote the important goal of uniformity in the sentencing of offenders who appear in different federal courts around the country.12

Absent change, federal crack cocaine sentences will continue to deepen the racial fault lines that weaken the country and undermine faith among all races in the fairness of the criminal justice system. Congress should eliminate the powder/crack sentencing differential and thereby affirm the principles of equal justice and equal protection of the laws that are the bedrock of our legal system. Elimination of the crack/powder sentencing disparity and mandatory minimum sentences for drug offenses would also greatly advance US efforts to comply with its treaty obligations under ICERD.

For the foregoing reasons, Human Rights Watch urges Congress to pass legislation to eliminate the 100-to-1 cocaine sentencing disparity, and restore fairness to the federal sentencing of cocaine offenses.

1U.S. Sentencing Commission, 2000 Datafile, USSCFY00, available at: http://www.ussc.gov/ANNRPT/2000/table34.pdf, Drug Briefing, Table 34.

2International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), adopted December 21, 1965, G.A. Res. 2106 (XX), annex, 20 U.N. GAOR Supp. (No. 14) at 47, UN Doc. A/6014 (1966), 660 U.N.T.S. 195, entered into force January 4, 1969.

3ICERD, art. 5(a).

4ICERD, art. 1(1) (emphasis added).

5See ICERD, General Recommendation XIV, “Definition of Discrimination (art. 1, para. 1),” para. 2, U.N. GAOR, 48th Sess., Supp. No. 18, at 176, U.N. Doc. A/48/18(1993). See also, Theodor Meron, “The Meaning and Reach of the International Convention on the Elimination of All Forms of Racial Discrimination,” 79 The American Journal of International Law 283, 287-88 (1985).

6See ICERD, art. 2(1)(c): “Each State Party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists.”

7ICERD, General Recommendation XXXI, “Prevention of Racial Discrimination in the Administration and Functioning of the Criminal Justice System,” para. 34-35.

8United States Sentencing Commission, Special Report to the Congress: Cocaine and Federal Sentencing Policy, 1995, Washington, D.C., 1995, p. 22.

9Id.

10For a more detailed discussion of these issues, see: Human Rights Watch, Punishment and Prejudice: Racial Disparities in the War on Drugs, vol. 12, no. 2, May 2000; Human Rights Watch, Cruel and Usual: Disproportionate Sentences for New York Drug Offenders, vol. 9, no. 2, March 1997; Human Rights Watch, Race and Drug Law Enforcement in the State of Georgia, vol. 8, no. 4, July 1996.

11United States Sentencing Commission (USSC), Report to the Congress: Cocaine and Federal Sentencing Policy, May 2007, p. 9.

12See United States v. Booker, 543 U.S. 220, 267 (2005) (affirming the goal of uniformity in sentencing).

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