1

The Disparity

Sentencing under Federal law for trafficking in powder cocaine is significantly less than sentences for trafficking in crack--cocaine base. This is the result more of politics than science. But until recently, the United States Sentencing Commission has held to what congress established as sentences for a quantity of crack were the same for 100 times the amount when the cocaine was in powder form. At present the difference is approximately 70 times. What this means is that the sentence for 5 grams of crack is the same as the sentence for 500 grams of powder cocaine--even though no scientific data shows any difference between the effect either drug has on the body. While the United States Sentencing Guidelines have reduced this to approximately 70 to 1, the problem is that even such a distinction is not justified by science. The Department of Justice under the Obama Administration has taken the position that the sentencing for crack and powder should be the same.

2

The Guidelines v The Statutory Sentence

Another aspect of this sentencing problem is that the United States Sentencing Guidelines are no longer mandatory--the Court does not have to apply the recommended sentence under the Guidelines. And while the Sentencing Commission and the Department of Justice have taken a position that the 100:1 powder/crack disparity must be changed, this has no effect on a more serious issue--the mandatory minimum sentence that Congress has enacted by statute. The same false information that led to the 100:1 sentencing disparity in the Guidelines is the same false information that Congress relied upon in creating the mandatory minimum sentences for crack and powder. So it remains that for 50 grams of crack, a defendant faces a minimum of 10 years in prison. For that same 10 year mandatory minimum sentence, a defendant would have to have been involved with 5 kilograms (5000 grams) of powder cocaine. Even if the Guidelines eliminate the disparity, the mandatory minimums still remain in place.