The issue of crack cocaine sentences in federal cases is one that has bothered experienced federal criminal defense attorneys, especially in New York, for some time. Unlike the New York State Court System, where crack is treated the same as cocaine*, in the federal criminal system, individuals charged with crack face the same amount of time as a person who possesses or sells 100 times the amount of cocaine. That is to say, that the sentence for 5 grams of crack (about the amount of tow sugar cubes) and 500 grams of cocaine (half of a kilo) will be approximately the same, all other factors being equal.
This disparity has led to claims of discrimination. In 2006, 82 percent of federal defendants who were sentenced for selling crack were African-American. Even the United States Sentencing Commission seems to agree having reduced crack cases by 2 points on the federal sentencing guidelines and made the reduction retroactive.
In addition, the United States Supreme Court seems to be stepping into the mix. In Kimbrough, a case decided recently in the Supreme Court, the High Court decided that a federal judge may consider the crack-cocaine discrepancy in sentencing someone below the range set by the federal sentencing guidelines.
The problem with both the decision from the Supreme Court and the decision from the US Sentencing Commission is that both decisions only affect crack sentences under the federal sentencing guidelines. The sentencing guidelines only play a role in about 30% of crack cases in federal court. The overwhelming majority of cases, 70%, are covered by mandatory minimums. Possession of fifty grams of crack, for instance, requires a judge to sentence the defendant to a mandatory minimum of 10 years in prison. These cases are affected neither by the US Supreme Court decision in Kimbrough or the reduction imposed by the US Sentencing Commission. The mandatory minimums can only be changed by Congress.
It seems that the tide is changing and so hopefully Congress will be forced to act. The Kimbrough case seems to indicate that even the US Supreme Court recognizes that there is a problem. Here at Tilem & Campbell, we are preparing a motion to ask judges to set aside the mandatory minimums in federal crack cases, arguing that the mandatory minimums are unconstitutional. Now maybe the time to get these draconian drug laws changed.
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*. In fact, in New York State there is no separate crime for possessing or selling crack. Possession or sale of crack is a crime only by virtue of the fact that crack contains cocaine.