Human Rights Watch welcomes the decision of the United States Sentencing Commission to review once more the federal sentencing structure for cocaine offenses. The public health, social, and economic consequences of the use and sale of cocaine in any form, and crack cocaine in particular, warrant public concern. But they do not justify penal sanctions that are disproportionately harsh and racially discriminatory. They do not justify prison sentences that violate common sense, basic principles of criminal justice, and internationally affirmed human rights.
In 1995, the Commission urged
an equalization of sentences for federal crack and cocaine offenders, realizing
crack sentences were unfairly severe and long crack sentences were imposed
primarily on minority defendants. Unfortunately, Congress failed to heed its
wise counsel. Today, the Commission has another opportunity to remind the
country that sentences for crack offenders must be changed. We hope this time
Congress will listen.
We urge the Commission to
restore proportionality to federal cocaine sentences and to reduce their
racially disparate impact by:
Amending the guidelines to lower
sentences for low-level crack offenses;
Amending the guidelines to reduce
disparities in the sentencing of crack and powder offenses;
Urging Congress to eliminate or
dramatically modify the mandatory minimums for crack and powder cocaine.
Federal crack offenders face
sentences that are uniquely severe compared to other federal drug offenders,
drug offenders sentenced under state law and drug offenders convicted in other
constitutional democracies. The Commission's statistics reveal that the average
federal sentence in 2000 for a street-level dealer of crack is 103.5 months,
while the average sentence for a powder cocaine dealer is 55.6 months. The
average maximum sentence for persons convicted of drug trafficking felonies
under state law in 1998 was 54.5 months. title="">1 Among European
countries, the average length of sentences for persons convicted of drug
trafficking was 33 months.2
The current sentencing structure for cocaine offenses reflects
Congressional choices made in the Anti-Drug Abuse Act of 1986. Congress
established five- and ten-year mandatory minimums triggered by specific minimum
quantities of cocaine. In what has come to be known as the 100-to-1 quantity
ratio, it takes one hundred times as much powder cocaine as crack cocaine.
Congress also doubled these mandatory minimums for people with a prior felony
conviction. The Sentencing Commission used those drug quantity levelsÑand the
100-to-1 ratioÑto develop sentencing guidelines for the full range of other
powder and crack cocaine offenses. In 1988 Congress also made crack cocaine
the only substance the simple possession of which triggered a mandatory prison
sentence. Under the Anti-Drug Abuse Act of 1988, simple possession of more
than 5 grams of crackÑan amount that would translate into somewhere between ten
and fifty individual doses of crackÑis punishable by a minimum of five years in
prison. In contrast, simple possession of any quantity of powder cocaine by
first time offenders is a misdemeanor punishable by no more than one year in
Supporters of the remarkably
harsh sentences for crack offenders insist that crack poses uniquely serious
harms compared to other drugs and that long prison sentences are needed to put
major traffickers behind bars, offer prosecutors leverage for securing
cooperation from offenders, deter prospective offenders, and enhance community
safety and well being. Opponents point to an abundance of empirical data
showing that the inherent dangers of crack are not dramatically different from
those of powder cocaine, and that harsh federal sentences have had little
impact on the demand for or the availability of the drug. Instead, the federal
sentencing structure has resulted in the incarceration of thousands of
low-level offenders, excessively severe sentences for such offenders, marked
racial disparities in prison sentences, a staggering growth in federal prison
populations, and a waste of public resources.
We believe the facts support
the critics. Indeed, the data and arguments marshaled by the Commission in its
1995 report remains the most cogent and powerful case against higher sentences
for crack offenders created by the 100-to-1 differential. name="_ftnref3">3 The
Commission correctly concluded that there is no empirical or principled basis
for subjecting offenders who deal in or possess crack to dramatically higher
sentences than offenders who deal in or possess powder cocaine.
II. International Human Rights and
International human rights
limit a government's exercise of its coercive and penal powers. Those rights
are affirmed in the Universal Declaration of Human RightsÑthe magna carta of
international human rightsÑand fleshed out in several subsequent treaties,
including the International Covenant on Civil and Political Rights (ICCPR), the
Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or
Punishment (CAT), and the Convention on the Elimination of All Forms of Racial
Discrimination (CERD).4 The United States is a party to all
of these treaties.5 Under the Supremacy Clause in
Article VI of the U.S. Constitution, these treaties are part of the Òsupreme
law of the landÓ and as such are binding on all public officialsÑincluding
members of the Sentencing Commission. These treaties are not self-executing,
and in the absence of implementing legislation, U.S. residents cannot turn to
the courts to defend rights acknowledged by the treaties. But officials
nonetheless remain obliged to respect those rights as they exercise their
The principle that punishments should not exceed that which is proportionate to
the crime reflects three basic human rights precepts: the inherent dignity of
the individual, the right to be free of cruel, inhuman or degrading punishment,
and the right to liberty:
- The inherent dignity of all persons is the rock upon which
international human rights are built. As the preamble to the ICCPR states, Òthe
equal and inalienable rights of all members of the human familyÉderive from the
inherent dignity of the human personÉÓ Respect for the intrinsic value of the
human person imposes fundamental limits on the nature and quantity of punishment.
A criminal conviction is not a license for the imposition of arbitrarily severe
- The ICCPR and the
Convention against Torture prohibit Òcruel, inhuman or degrading treatment or
punishment.Ó Excessive punishment falls within this proscription. Imprisonment
becomes cruel, inhuman, or degrading if its severity (i.e., length) is greatly
disproportionate to the crime for which it has been imposed.
- The right to
liberty also limits the length of sentences. By analogy to U.S. constitutional
law, international human rights law requires not just procedural due process,
but substantive due process as well. That is, even if all requisite legal
procedures have been followed, any deprivation of liberty must nonetheless
still conform to principles of equity and justice.
right to be free of racial or ethnic discrimination is firmly embedded in
international human rights law. The ICCPR and CERD prohibit unjustified
discriminatory practices even if they have been adopted to secure otherwise
valid social objectives such as reducing the sale of illicit drugs.
III. Proportionality and Federal Crack
Prison is an extremely
serious punishmentÑthe most coercive and drastic sanction that can be lawfully
imposed short of capital punishment.6 Ensuring that prison sentences are
proportionate is consequently a particularly important human rights obligation.
To be proportionate, a prison sentence: 1) should not exceed the gravity of the
offender's specific conduct and his or her personal responsibility and
culpability; 2) should be tailored to the conduct of the individual defendant
and not reflect penalties for crimes or offensive conduct that offender did not
in fact commit. Federal sentences for crack offenders fail to meet these requirements.
1. Harsh sentences disproportionate to offender's conduct
The average prison sentence
for crack cocaine offenders is ten years. The Commission's statistics reveal
the average sentence in 2000 for a street-level dealer of crack is 103.5
monthsÑalmost nine years; a courier's average sentence is even greater, 107.4
months; the average sentence of a body guard, cook, or steerer is 117
monthsÑalmost ten years.7 Eighty-five percent of these
sentences are served. By way of comparison, the mean maximum state prison
sentence is one hundred months for all violent offenses. The estimated time
served in state prison for violent offenses is fifty-four months. For burglary, the mean maximum state
sentence is fifty-two months, and the estimated time to be served is
twenty-four months. name="_ftnref8">8 As another point of comparison, in
Europe the mean prison sentence for homicide is ninety-nine months, for rape
sixty-two months and for robbery forty-one months. name="_ftnref9">9
We are aware of no empirical
basis for punishing low-level crack offenses (e.g., the sale of crack to an
adult purchaser) with prison sentences that are commensurate with, much less
exceed, most crimes of violence. While dramatic hyperbole abounds in public
pronouncements about illicit drugs, a sober, impartial assessment of drug
sentences in light of the principles of proportionality indicates such high
federal sentences for crack offenders cannot be justified.
Generally, a severe punishment is appropriate for conduct that
seriously harms, or at least has threatened to harm, important legally
protected interests or rights and conduct to which the victim has not
consented. So a significant prison term as a sanction for murder seems
appropriate. But in the case of retail drug transactions between adults or
other low-level drug crimes, the nature and extent of the harm caused by an
individual low-level drug offender is surprisingly difficult to identify:
- The sale of drugs
to an adult does not violate a legally protected right of that adult in the way
that robbery of his property or assault on his person violates his rights. We
are aware of no other significant prison sentences imposed in the U.S. for
participating in transactions that do not deprive a person of legally protected
interests and that were engaged in knowingly and voluntarily.
- The repeated,
extensive consumption of cocaineÑcrack as well as powderÑis harmful physically
and psychologically. But we are aware of no scientific data that shows every
use of cocaine causes serious harm, or that all or even most adults who use
cocaine cause substantial physical or psychological injury to themselves.
Indeed, only about 10 percent of those who use cocaine ever become addicts.
Even if each sales transaction is assumed to cause some amount of physiological
or psychological harm, it is hard to discern the principled basis for punishing
that conduct as though it were the equivalent of inflicting more serious harm
by force upon an unconsenting adult.
- There is deep
public concern about the moral injury caused by drug consumption. President
Bush commented recently that drugs rob men and women of dignity and character,
that they are the enemy of ambition and hope. title="">10 We do not believe,
however, that the offense of contributing to these harms justifies years of
imprisonment. If having a weak character or lacking ambition is not a crime,
how can an act that contributes to such qualities be punished as a serious
- The adverse social
and public health consequences from the use and distribution of crack are the
result of hundreds of thousands of individual actions. The contribution of any
individual low-level offender to these harms is necessarily negligible. In
determining the punishment that is proportional for the street-seller who
engages in $20 crack sales, the harm he may have caused should not be conflated
with the cumulative impact of countless other people. Severe prison sentences
are disproportionate for individuals whose specific conduct in and of itself
causes minimal harm, even if those same actions when undertaken by a sufficient
number of other individuals results in accumulated public harm. name="_ftnref11">11 They
would be proportionate, on the other hand, for drug kingpinsÑe.g., persons
importing large amounts of cocaine into the country.
2. Harsher sentences for
crack than powder cocaine not justified by conduct of crack offender
By virtue of the 100-to-1 differential, sentences for crack offenders
are far higher than those powder cocaine offenders who engage in the equivalent
conduct. The Commission's statistics indicate that the average sentence of a
street-level dealer of crack cocaine is approximately double that of powder
cocaine dealers, the same with a courier of crack compared to a courier of
powder. The sentence for an importer or high-level supplier of crack is three
times that of an importer of powder cocaine.
When Congress set mandatory minimum sentences for crack and powder, it
had no empirical basis for creating the 100-to-1 ratio. By all accounts, it
simply picked the figure out of the air. Certainly, it had relatively little
information about crack and much of what it thought it knew was erroneous. We
are unaware of any reasoned basis today for retaining sentences for crack
offenses that are so much higher than sentences for powder cocaine offenses.
Certainly the difference
cannot be justified by any differences inherent in the two substances. They are
pharmacologically identical and have similar physiological effects, although
the form of ingestion affects the rapidity of the onset of effects and their
duration.12 The principle differences between
the two forms of cocaineÑe.g., use by different socio-economic groups and the
greater nuisance and violence accompanying crack distributionÑdo not reflect
any inherent differences in the conduct of the individual crack offender.
Higher penalties for low-income offenders
The uniquely high sentences
for crack offenders partially reflect Congress's concern about crack's use in
low-income urban neighborhoods. Unlike powder cocaine, which is relatively
expensive, crack is produced and sold in small ÒrocksÓ that can be bought in
small, cheap quantities. While people with financial resources can and do use
powder cocaine as well as crack, people with limited funds who want to use
cocaine can only afford it in the form of crack. Crack's low price thus
contributed to the rapid rise in its use in the 1980s.
Tailoring an individual's
punishment to drug pricing does not square with the principle of
proportionality. We are troubled by a sentencing structure that as a practical
matter keys the severity of a sentence to the affordability of a particular
drug. In essence, federal law penalizes the sale of a substance to poor people
more than the sale of the equivalent substance to the affluent. It is the
equivalent, were alcohol illegal, of imposing higher punishments on the sale of
jug wine than on the sale of chateau neuf du pape. Similarly, by dictating far
higher sentences for the possession of crack than for the possession of powder,
the law penalizes more severely the poor who acquire the affordable form of a
drug than the affluent who acquire the same drug in a more expensive form.
Punishment for violent
offenses incorporated into sentences for nonviolent offenders
The current federal sentencing structure is crafted as if all crack
offenders are violent and powder cocaine offenders are not. There is no
argument that the spread of crack was accompanied by serious violence as gangs
fought for control of distribution channels in the new market. During the
1980s, the number of homicides grew rapidly in inner cities, and included
innocent bystanders among the victims. With the waning of the crack ÒepidemicÓ
and the settling of distribution systems for crack, the levels of violence have
greatly subsided. But even if it continued at previous rates, we do not believe
crack offenders who have not engaged in violence should be given sentences set
to reflect the violent conduct of others. As discussed above, the
proportionality of a punishment must be judged with relation to the actual
offense committed by the specific offender being sentenced.
The unfairness of
incorporating violence into all crack cocaine sentences is underscored by
Commission statistics that reveal that almost 80 percent of federal crack
offenders had no weapon involvement in their crime in FY2000. Indeed, 74.5
percent did not even have access to a weapon, and only 2.3 percent brandished,
used, or discharged a weapon in the course of committing their drug offense.
Commission statistics on weapon involvement for the eight-year period
1992-2000, reveal that even in 1995, the year at which weapon involvement was
highest, 70 percent of crack offenders had no weapon involvement. In FY2000,
violence was involved in only 6 percent of crack offender casesÑonly somewhat
higher than the figure of 5.3 percent in powder cocaine cases. There was no
bodily harm in 88.4 percent of crack cocaine casesÑagain, a figure roughly
equivalent to that in power cocaine cases (91 percent). name="_ftnref13">13
We are not proposing that the
Commission (or Congress) close their eyes to the violence that accompanies the
distribution of drugs. Use of weapons to commit a drug offense can be
considered an aggravating factor that enhances the punishment (although we
would prefer that unlawful use or possession of a weapon be charged as a
separate crime and proven beyond a reasonable doubt). But the baseline
sentences currently set for given quantities of crack should be reduced so that
every crack offender is not being sentenced as though he or she directly
participated in unlawful violence.
3) Sentences never
intended for low-level offenders
In 2000, Commissioner Steer
pointed out that Congress had not intended to impose extremely severe prison
sentences on low-level crack offenders. title="">14 It believed that a
major trafficker (e.g. manufacturer or head of organizations dealing in very
large drug quantities) should receive at least a ten-year sentence and a
serious trafficker (e.g. manager of substantial retain trade business) should
receive at least a five-year sentence. It then specified drug quantities in the
Anti-Drug Abuse Act of 1986 that it thought were associated with the different
roles in the drug business. Unfortunately, it got the numbers wrong. As the
Commission's research has shown, the 5 grams of crack cocaine set by Congress
as the trigger for a five-year sentence is not a quantity associated with
mid-level or serious traffickers. According to the Commission's data, the
median amount of crack cocaine associated with a manager or supervisor is 253
grams of crack.15 Similarly, the 50 grams of crack
that triggers the ten-year mandatory minimum is a far cry from the median
quantity of 2,962 associated with importers and high-level suppliers of crack
Few of the men and women
convicted of federal crack offenses are serious or major traffickers. According
to Commission data, 77 percent are lower-level offenders: 66.5 percent are
street-level dealers; the other 11 percent are lookouts, courtiers, bodyguards,
and cooks. Another 5.9 percent are managers and supervisors. Not surprisingly,
given their function, the scope of geographic activity for these offenders is
quite limited: three quarters of the crack cocaine offenders operated in their
neighborhood or on a local level. In other words, less than one-fifth of crack
cocaine offenders are the importers, organizers, manufacturers or wholesalers
operating on the broad geographic scale on whom Congress intended to impose
five- and ten-year mandatory minimums. If we assume, arguendo, that those five- and ten-year sentences would have
been proportionate for major organizers, then they are necessarily
disproportionately severe for the lower-level offenders on whom they in fact
4) The federal sentencing
structure incapable of yielding proportionate sentences
The federal drug sentencing
structure combines mandatory minimum sentences by Congress and sentencing
guidelines created by the Commission. By its nature, the structure precludes
proportional sentences for crack offenders. Mandatory sentences applied to
broad classes for criminal conduct can satisfy the principle of proportionality
only if the prescribed punishment is proportional to the conduct of every
individual falling within the class. The mandatory minimum set by Congress for
crack offenses clearly fails that test. Harsh penalties set simply by quantity
and type of drug cannot distinguish between different levels of culpability,
yet they block judicial efforts to tailor sentences to the individual offender.
Under the sentencing scheme created by Congress, minute amounts of drugs can
yield major differences in sentences for people who are otherwise similar in
conduct and culpability. For example, an amount of .01 grams above 5 grams can
mean an extreme of four years in the sentence for someone convicted of first
offense simple possession. Mandatory minimums also lump people together of very
different levels of culpability. By setting sentences based solely on
quantity, they fail to distinguish between different roles in the offense (e.g.,
peripheral participants or ringleader). Street-level sellers can be charged
with quantities that reflect the total of numerous sales. There have been many
complaints that law enforcement agents deliberately wait to make arrests until
the sales total has increased enough to trigger mandatory minimums. The impact
of the failure to key sentences to role is also magnified by conspiracy laws.
The Anti-Drug Abuse Act of 1988 made the mandatory minimum penalties applicable
to drug offenses also applicable to conspiracies to commit those offenses.
Low-level participants in a drug enterprise can be sentenced on the basis of
drug quantities handled by the entire undertaking. Whether through accumulated
sales or conspiracy laws, a street-level crack seller can face sentences far
higher than his role otherwise warrants.
The Commission has crafted sentencing guidelines with mitigating and
aggravating factors that adjust the baseline sentence set by drug quantity to
better reflect the individual's conduct, role, and culpability. The sentence,
however, cannot be reduced below the term mandated by the mandatory minimum
legislation. The mandatory minimums trump the Commission's sentencing
guidelines. As Commissioner Steer pointed out in his statement before the House
Governmental Reform Subcommittee on Criminal Justice in May, 2000:
[F]or the very offenders who, arguably,
most warrant proportionally lower sentences (offenders who by guidelines'
definitions are the least culpable), mandatory minimums generally operate to block
the sentence reflecting mitigating factors. This means that these least
culpable offenders may receive the same sentences as their relatively more
Commission data indicates that in 60 percent of cases in which the
defendant qualified for a mitigating role reduction under the guidelines, the
mandatory minimum trumped the sentence. title="">17
The safety valve provision enacted by Congress provides some relief for
offenders otherwise facing mandatory sentences. Higher rates of arrest in the
urban areas, in which most crack cocaine arrests are made, have left most crack
defendants with criminal records that preclude them from qualifying for the
The congressional mandatory
minimums have distorted the guidelines. The Commission used the five- and
ten-year sentences set by Congress with the corresponding drug quantities as
the basic reference points around which it constructed its drug offense
guidelines. We recognize and commend the Commission's effort to secure
proportionate sentences for individual defendants through various mitigating
factors. But the guideline structure cannot ensure proportionate sentences
because it is reflected by the excessively severe sentences mandated by
5) Federal versus state
The low-level offenders who
constitute the bulk of federal crack offenders could have been prosecuted under
state lawsÑand most would have received lower sentences. In 1995, the
Commission repeated that only fourteen states distinguish between crack and powder
cocaine for sentencing purposes.18 The remaining states did not create
statutory sentences distinguishing between crack cocaine and powder cocaine.
Only one of the states, North Dakota, used a 100-to-1 quantity ratio for the
threshold amounts triggering mandatory minimum penalties. We take no position
on the appropriate role of the federal government with regard to counter
narcotics activities and drug prosecutions. But it is extremely troubling from
a proportionality perspective that the same activityÑe.g., selling rocks of
crack to consumersÑcan get very different sentences simply based on whether
local or federal prosecutors take the case.
The Racially Discriminatory Impact of Crack Sentences
Available evidence indicates
there are more white cocaine offenders than there are black. Yet the
Commission's data shows that in 2000, over 84 percent of federal crack
defendants were African American, a proportion that did not vary significantly
throughout the 1990s.19 Blacks thus bear the brunt of the severe
sentences uniquely meted out to crack offenders under the federal sentencing
structure. As discussed above, we do not believe the far higher sentences for
crack than powder cocaine offenses are justified. The lack of justification
takes on added significance in light of the dramatic racial disparities in the
imposition of crack sentences. An indefensible sentencing differential becomes
unconscionable in light of its racial impact.
Challenges to the
crack/powder sentencing differential on equal protection grounds under the U.S.
or state constitutions have generally failed because of the absence of proof of
discriminatory intent on the part of the lawmakers. International human rights
law, however, contains no requirement of discriminatory intent for a finding of
CERD prohibits racial discrimination, which it defines as conduct that
has the Òpurpose or effectÓ of restricting rights on the basis of race. href="#_ftn20" name="_ftnref20">20
Laws that are racially neutral on their face will violate CERD if they have an
unjustifiable significant disparate impact upon a group distinguished by race
even in the absence of racial animus.
CERD thus raises the question
of whether the racially disparate impact of the crack sentences is warranted.
We believe not. The impact does not reflect racial differences in offending
behavior. Rather, it reflects law enforcement practices, practices that, like
the sentences themselves, cannot be divorced from underlying racial dynamics
prejudicial to African Americans.
1. Crack offending by different
Available data indicates
there are far more white crack offenders than black, even though blacks
constitute the great preponderance of persons prosecuted for federal crack
offenses. Federal data indicates blacks have a somewhat higher rate of crack
use than white.21 Given the much greater size of the
white population, there are nonetheless still far more whites (2,870,000) who
have ever usedÑand thus illegally possessedÑcrack cocaine than blacks
(1,040,000).22 As for crack sellers, there is no
national data on their racial breakdown. The limited data on drug sellers that
does exists nonetheless suggests whites constitute a preponderance of the
cocaine selling population. For example, during the period 1991-1993 Substance Abuse
and Mental Health Services Administration (SAMHSA) included questions about
drug selling in the annual National Household Survey on Drug Abuse (NHSDA)
surveys. On average over the three-year period, blacks were 16 percent of the
admitted sellers and whites were 82 percent. title="">23 According to research
on patterns of drug purchase and use in selected major cities, drug users
reported that their main drug sources were sellers of the same racial or ethnic
background as they were. A large study conducted in the Miami, Florida
metropolitan area of powder and crack cocaine users revealed that over 96
percent of users in each ethnic/racial category were also involved in
street-level drug dealingÑwhich would suggest a racial profile of sellers that
is comparable to users.24
Most criminal justice
analysts who have looked at racial disparities in drug offender arrests and
imprisonment believe demographics and law enforcement resource allocation bear
principal responsibility for the disparities. Illicit drug useÑand presumably
salesÑare higher in large metropolitan areas where drug law enforcement is also
concentrated. Since more blacks, proportionately, live in these areas than
whites, black drug offenders are at greater risk of arrest than white
offenders. Within urban areas, the major ÒfrontsÓ in the war on drugs have been
low-income minority neighborhoods. In those neighborhoods, drug transactions
are more likely to be conducted on the streets, in public, and between
strangers, whereas in white neighborhoodsÑworking-class through
upper-classÑdrugs are more likely to be sold indoors, in bars, clubs, and
private homes and only to known buyers. Undercover operations, buy and busts,
and other law enforcement activities are therefore easier and quicker to
undertake in low-income neighborhoods and the likelihood of success much
greater. The net result has been that people buying and selling crack and
powder cocaine in more affluent neighborhoods are less likely to be arrested
than people buying and selling those drugs in poor, primarily minority, urban
But concentration of
anti-drug efforts in low-income urban neighborhoods also reflected racial
dynamics. Indeed, although crack was the least used of the major illicit drugs
in the U.S.Ñand although more whites used illicit drugs than blacksÑthe Òwar on
drugsÓ that began in the 1980s was targeted most notoriously at the possession
and sale of crack by blacks. Crack cocaine in black neighborhoods was a
lightening rod for a complicated and deep-rooted set of racial, class,
political, social, and moral dynamics that resulted in extensive law
enforcement activities in those neighborhoodsÑas well as uniquely severe
federal sentences for crack offenders.
2. The racial
underpinnings of crack sentences
We do not believe any honest
observer of the public response to crack, including federal sentences, can
ignore the role of race. Powder cocaine use by white Americans in all social
classes increased in the late 1970s and early 1980s. That use, however, did
not engender the orgy of media and political attention that arose when smokable
cocaine in the form of crack spread throughout low-income minority
neighborhoods that were already seen as dangerous and threatening. There is no
question that with the spread of crack, inner city minority neighborhoods
suffered from the disorder, harassment, and nuisance that accompanied increased
drug dealing on the streets, increased crimes by addicts seeking to finance
their addiction and violence by competing drug gangs. But the dismay of local
residents was far exceeded by the censure, outrage, and concern from outsiders
fanned by incessant and sensationalist media stories, by politicians seeking
electoral advantage by being Òtough on crime,Ó and by some politicians who were
Ðconsciously or otherwiseÑplaying the Òrace cardÓ in advocating harsh responses
to crack. We recognize that many members of Congress and the public sincerely
sought to help poor minority communities. But we are convinced the federal
solutions they choseÑi.e., uniquely harsh sentences and the concomitant
underfunding of prevention and treatment alternativesÑcannot be divorced from
the longstanding public association of racial minorities with crime and drugs. href="#_ftn25" name="_ftnref25">25
All of these and other factors help explain why inner cities were
targeted for drug law enforcement, why Congress set higher sentences for crack
offenders than for powder cocaine, and why most federal crack defendants are
blacks. But they do not offer a justification that can today withstand CERD's
The Commission cannot change law enforcement practices that target
inner city communities. But it can act to eliminate or at least significantly
reduce the powder/crack sentencing differential and thereto affirm the
principles of justice and equal protection of the laws that should be the
bedrock of U.S. law. Absent change, federal crack 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.
The Sentencing Commission should recommend to Congress that mandatory
minimums for drug offenses should be eliminated. If they are retained, they
should be pegged to the level of the participant in the drug trade. Drug
quantity should be designated as one factor to consider in determining the
defendant's level of participation in the drug trade.
The Sentencing Commission should also amend its guidelines as follows:
- Guidelines should
be revised to ensure that low-level crack offenders do not receive
disproportionately severe sentences. Under the guidelines base sentences should
be keyed to role of defendant in drug trade, with aggravating (e.g., use of
violence) or mitigating (e.g., providing assistance to law enforcement) factors
raising or reducing that sentence as appropriate. If drug quantities continue
to play a dominant role in the guidelines, they should be seen as a proxy for
the defendant's role in the offense. Where drug quantities are an inaccurate
proxy (e.g., where a low-level defendant is charged with a large quantity of
drugs because of the impact of conspiracy laws or multiple drug transactions)
the guidelines should permit significant downward adjustments in the sentence.
- Sentences for
crack cocaine offenders should be equalized with those for powder cocaine
offenders who engage in equivalent conduct. The disparities should be
eliminated by increasing the quantities of crack required for given sentence to
those required for powder cocaine offenses. The quantities for powder offenders
should not be reduced to address the crack/powder sentencing disparity. We are
aware of no sound arguments that sentences for powder cocaine offenses are too
low. The injustice caused by the arbitrary 100-to-1 ratio should not be cured
by an equally arbitrary change to powder cocaine sentences, particularly when
the change would be motivated by calculations of political appeal. Politics has
already played a pernicious role in federal drug sentencing. The Commission must
uphold non-political principled sentencing.
1 Matthew Durose and Patrick Langan, Felony
Sentences in State Courts, 1998, Bureau of
Justice Statistics, U.S. Department of Justice (1998), Table 3.
2 Martin Killias et al., ÒSentencing in
Switzerland in 2000,Ó Overcrowded Times
vol. 10, no. 6 (1999), p. 1, 18-19, citing figures from the Council of Europe's
1990 Bulletin d'informacion pŽnologique, no. 15.
3 United States Sentencing Commission, Special
Report to the Congress: Cocaine and Federal Sentencing Policy, 1995, Washington, D.C., 1995.
4 The United States ratified the ICCPR
on June 8, 1992, CAT on October 21, 1994, and CERD on October 21, 1994. See href="http://www.unhchr.ch/pdf/report.pdf">http://www.unhchr.ch/pdf/report.pdf for a list
of signatories. For the text of the treaties, see href="http://www.unhchr.ch/html/intlinst.htm">http://www.unhchr.ch/html/intlinst.htm.
5 For a more detailed discussion of
these issues, see:
Human Rights Watch, "Punishment and Prejudice:
Racial Disparities in the War on Drugs," A Human Rights Watch Report, vol.
12, no. 2, May 2000.
Human Rights Watch, ÒCruel and Usual: Disproportionate
Sentences for New York Drug Offenders,Ó A Human Rights Watch Report, vol. 9,
no. 2, March 1997.
Human Rights Watch, ÒRace and Drug Law Enforcement in
the State of Georgia,Ó A Human Rights Watch Report, vol. 8, no. 4, July 1996.
6 The public and elected officials all
too often overlook the significant hardships of prison. Imprisoned individuals
lose their liberty, autonomy, and the free exercise of most rights. They are
deprived of their families, friends, jobs, and communities. Their ability to
work, plan, and express themselves is severely restricted. In many prisons,
life is degrading, demoralizing, dehumanizing, and dangerous: overcrowding and
violence threaten inmates' health, safety, privacy, and dignity. Sending a
parent or family breadwinner to prison wreaks havoc on the financial and social
stability of prisoners' families and harms children's development. Ex-offenders
have enormous difficulties finding employment and housing.
7 Data provided by the U.S. Sentencing
Commission, February 2002, on file at Human Rights Watch.
8 BJS, Felony Sentences in State
Courts, Table 3 and Table 4.
9 Killias, ÒSentencing in Switzerland
in 2000,Ó p. 18.
10 President George W. Bush, ÒRemarks
from Bill Signing at CADCA's National Leadership Forum XII.Ó December 14, 2001.
(7 March 2002).
11 Joel Feinberg, Harm to Others (New York: Oxford University Press, 1984).
12 Cocaine and Federal Sentencing
Policy, p. 22.
13 United States Sentencing Commission,
ÒFigures 19, 20, 21.Ó Drug Briefing Presentation. 2002, href="http://www.ussc.gov/agendas/drugbrief/sld006.html">http://www.ussc.gov/agendas/drugbrief/sld006.html
(7 March, 2002).
14 Commissioner John R. Steer,
ÒTestimony before the Subcommittee on Criminal Justice, Drug Policy and Human
Resources.Ó May 11, 2000. href="http://www.house.gov/reform/cj/hearings/00.05.11/SteerTestimony.htm">http://www.house.gov/reform/cj/hearings/00.05.11/SteerTestimony.htm
(7 March, 2002).
15 Drug Briefing Presentation, ÒFigure 18,Ó href="http://www.ussc.gov/agendas/drugbrief/sld006.html">http://www.ussc.gov/agendas/drugbrief/sld006.html.
16 Steer Testimony, href="http://www.house.gov/reform/cj/hearings/00.05.11/SteerTestimony.htm">http://www.house.gov/reform/cj/hearings/00.05.11/SteerTestimony.htm.
18 Cocaine and Federal Sentencing
Policy, p. 130.
19 Drug Briefing, Table 34, at href="http://www.ussc.gov/ANNRPT/2000/table34.pdf">http://www.ussc.gov/ANNRPT/2000/table34.pdf.
20 Art. 1 (1) of CERD states:
In this convention, the term
Òracial discriminationÓ shall mean any distinction, exclusion, restriction or
preference based on race, colour, 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.
United Nations, ÒInternational Convention on the
Elimination of All Forms of Racial Discrimination.Ó (New York: United Nations,
(12 March, 2002).
21 Office of Applied Studies, ÒNational
Household Survey on Drug Abuse, Population Estimates 1998,Ó National
Household Survey on Drug Abuse Series: H-9,
(SAMHSA: Washington, D.C., 1998), p. 38-39.
22 Punishment and Prejudice, Table 14.
23Punishment and Prejudice, Table 15.
24 Dorothy Lockwood, Anne E. Pottieger,
and James A. Inciardi, ÒCrack Use, Crime by Crack Users, and Ethnicity,Ó in
Darnel F. Hawkins, ed., Ethnicity, Race and Crime (New York: State University of New York Press, 1995), p. 21.
25 David S. Musto, The American
Disease: Origins of Narcotic Control (New
York: Oxford University Press, 1999). Also see Michael Tonry, Malign
Neglect Ð Race, Crime and Punishment (New
York: Oxford University Press, 1995).