New York Criminal Attorney Blog

As I indicated in prior blogs, Tilem & Campbell is currently appealing two cases challenging the constitutionality of the federal mandatory minimum sentences for crack cocaine offenses and the 100:1 powder cocaine-to-crack cocaine ratio that results in grossly disproportionate sentences between the mostly minority crack offenders and their mostly white powder cocaine cohorts.

One Appellant Brief is already submitted in the United States Court of Appeals for the Second Circuit and as the drafter of that Brief, I chose to analyze many different sources of information to show that the crack cocaine mandatory minimum sentencing laws (21 USC 841) were based on flawed data and have not achieved their intended goals. In doing so, I analyzed the history of other Congressional Acts imposing draconian mandatory minimums for drug offenses including the Boggs act of 1951 and the Narcotics Control Act of 1956. I also discussed President Kennedy’s disfavor for mandatory minimums and the conclusions of a Commission he assembled critical of such sentences and their recommendation that sentences fit both the offender and the offense and that rehabilitation should be the most important goal – not retribution.
I chose this strategy not to fill up space discussing irrelevant long-abolished statutes or the policies’ of Presidents who served 35 to 45 plus years ago but instead to elucidate the fact that the draconian mandatory minimum sentences of imprisonment for drug offenses has consistently failed over decades and tens of thousands of cases to solve the problem and stem the flow of drugs and their use. It was and remains the objective of my Brief to attack these mandatory minimums not only on strict scrutiny analysis but also on the rationale basis front.

In other words, I want to show the Second Circuit, through solid empirical data, that this mandatory minimum, throw away the key approach has consistently failed; that study after study has concluded that the rational for the mandatory minimums for crack and the 100:1 ratio was flawed and that mandatory minimums have failed for over 57 years to achieve their desired goal; and that the Kennedy Administration, the Johnson Administration and the Nixon Administration all opposed mandatory minimum sentences for drug offenders based upon extensive Committee research.

Our Brief followed with commentary regarding the Sentencing Commission’s strong disagreement with the ratio and the mandatory minimums as well as the United States Supreme Court’s acknowledgment in Kimbrough that the fears were unrealized and that crack and powder cocaine are one in the same drug. Our brief also analyzed and the pending bi-partisan support for Legislation abolishing the ratio. This I argued, supports a strong argument the current laws fail under strict scrutiny analysis because they are not narrowly tailored to achieve a compelling government interest insofar as all the experts recommend rehabilitation over incarceration and therefore, for a mandatory minimum to be deemed narrowly tailored, it cannot lump all offenders, (both addicts and major suppliers), in the same category.

The mandatory minimums for crack cocaine also fail the rational basis test because we are imprisoning minorities for decades for crack offenses while their white counterpart is receiving less than two years for powder offenses involving 100 times the amount of powder cocaine which, as authoritative experts have determined, is the same drug.

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Tilem & Campbell is currently appealing the constitutionality of the federal crack cocaine statutory mandatory minimum sentences (21 USC 841). In our most recent appeal, we discussed, among other things, the history of mandatory minimum sentences for federal drug offenses starting with the Boggs Act of 1951 and followed by the Narcotics Control Act of 1956. Both Acts imposed onerous mandatory minimum prison terms for relatively minor drug offenses. Both Acts also failed to stem the flow of drugs and their use. We discussed these prior Acts and their utter failures, as well as other empirical data, to support our argument that mandatory minimums for drug offenses have no rational basis.

In 1963, President Kennedy assembled the President’s Advisory Commission on Narcotics and Drug Abuse to address the country’s drug problem. Recall, at that time, drug offenders were facing the mandatory minimums found in Narcotics Control Act of 1956. The Commission studied drug use and the laws pertaining to those who abused drugs. The Commission concluded that rehabilitation rather than retributive punishment was essential to addressing the problem.

Regarding sentencing, the Commission opined that penalties should fit both the offender and the offense and be tailored to promote the offender’s rehabilitation. Draconian sentences, concluded the Commission, did not provide an effective deterrence. To the contrary, the Commission observed that the drug users were risking long prisons sentences to get their drugs. In other words, the lengthy mandatory minimums were having little or no affect on drug use.

Tilem & Campbell is vigorously challenging the federal mandatory minimum crack cocaine sentencing scheme found in 21 USC 841. We are currently appealing two cases to the United States Court of Appeals for the Second Circuit. While most believe mandatory minimums were a new concept resulting from the crack cocaine explosion in the early 1980s, the truth is, mandatory minimums for drug offenses have a 57 year history in the United States. As you will learn, from their inception, mandatory minimums have never achieved their desired result.

Draconian mandatory minimums for drug offenses were previously implemented by Congress in 1951 and 1956 and they failed miserably and were ultimately repealed. One thing that is apparent about our government officials including the elected Legislatures, Presidents as well as the appointed members that head our Administrative agencies and the Federal Judiciary is that they simply do not learn from history. It’s as if they don’t even know it.

The Boggs Act of 1951
What Congress was seemingly oblivious to when they slammed through The Anti-Drug Abuse Act of 1986 (and its draconian mandatory minimums for relatively small amounts of crack cocaine) in the middle of the night, was that approximately 35 years earlier in 1951, Congress had passed the Boggs Act which also had established mandatory minimum prison sentences for drug crimes.

Under the Boggs Act, simple possession of cocaine, heroin or cannabis carried a mandatory minimum 2 years with a maximum 5 years prison term. A second offense carried a mandatory minimum 5 years with a maximum of 10 years in prison. A third offense carried a mandatory minimum of 10 years with a maximum of 15 years in prison. Just as the 1986 ADAA was supported with flawed science, unfounded fears, and outright and erroneous concerns; so too was the Boggs Act and subsequent federal drug laws.

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As I indicated in prior blogs, Tilem & Campbell is currently challenging the constitutionality of the federal mandatory minimum sentences for federal crack cocaine offenses. We currently have an appeal pending in the United States Court of Appeals for the Second Circuit and will be filing another shortly on behalf of an African-American appellant.

Our current appeal concerns an Hispanic defendant sentenced to the 10 year mandatory minimum for four federal felonies involving approximately 112 grams of crack cocaine (21 USC 841). We challenged the constitutionality of the 10 year mandatory minimum sentence on three grounds. Briefly, we argued that depriving the defendant of his liberty, a fundamental right, longer than one convicted of a powder cocaine offense involving the same weight violates his equal protection rights under both strict scrutiny and rational basis review.

We also argued that the 100:1 ratio and corresponding grossly disproportionate sentences imposed upon minorities for crack offenses compared to those sentences imposed upon the mostly white offenders convicted of powder cocaine offenses involving the same weight violates the defendant’s Fifth Amendment Equal Protection rights (note, the Equal Protection rights found in the Fifth Amendment apply to the Federal Government while the Equal Protection Clause in the Fourteenth Amendment applies to the States).

At Tilem & Campbell, we represent a wide variety of defendants charged with anything from traffic infractions to serious felonies including controlled substance offenses. In a recent federal case, we represented a defendant charged in the United States District Court for the Southern District of New York with four drug offenses involving a total of approximately 112 grams of crack cocaine. Three of the offenses were Class A felonies which carried a mandatory minimum sentence of 10 years with a maximum of life imprisonment. Due to a prior drug felony, however, had the defendant gone to trial and lost, he would have been facing 20 years to life. The remaining offense was a Class B felony which carried a mandatory minimum sentence of 5 years with a maximum of 40 years imprisonment.

Senior Partner, Peter Tilem, a former Assistant District Attorney in the New York County District Attorney’s Office (Manhattan) was defendant’s lead attorney and successfully negotiated a plea bargain pursuant to which the defendant would plead guilty as charged. In return the Government would not seek the 20 year mandatory minimum but instead would recommend the 10 year mandatory minimum. The plea agreement did not require that the defendant waive his right to appeal his sentence.

The imprisonment range recommended by the U.S. Sentencing Guidelines as calculated in the Pre-sentence Investigation Report was 78-97 months based upon a base offense level of 27. However, due to the statutory mandatory 10 year minimum term of imprisonment found in 21 U.S.C 841(a)(1) and 841(b)(1)(A) for offenses involving crack cocaine, the defendant’s minimum term imprisonment increased to 120 months pursuant to USSG § 5G1.1(b).

This sentencing range was substantially higher than it would have been had the offenses involved powder cocaine because the Guidelines as well as the relevant statute (21 U.S.C 841) treat one gram of crack cocaine as equivalent to 100 grams of powder cocaine. For example, had defendant been sentenced for a powder cocaine offense involving the same quantities, he would have been facing a sentencing range of 15-21 months.

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At Tilem & Campbell, we often consult with and are retained by those facing or serving 5, 10 or 20 year federal statutory mandatory minimum sentences for cocaine base (crack) offenses. Many individuals mistakenly believe that the United States Supreme Court’s 2007 decision in Kimbrough v United States, 128 S. Ct. 558 struck down the statutory mandatory minimums for crack offenses. The decision did no such thing and has been widely misinterpreted as having struck down the federal statutory mandatory minimums for crack offenses as well as the 100:1 powder cocaine to crack cocaine ratio. In fact the Kimbrough case concerned a Booker issue – not a statutory mandatory minimum challenge. The Kimbrough decision held that the 100:1 ratio found in the United States Sentencing Guidelines is merely advisory; as are all of the Guidelines after Booker.

The Kimbrough decision held that a sentencing court may consider the 100:1 crack/powder cocaine disparity found in the Guidelines when determining a sentence. In Kimbrough, the defendant’s Guideline range was well above the statutory mandatory minimum. What the District Court did was consider the 100:1 ratio and its effect on the sentencing range. Based upon that consideration, the District Court, decided that the ratio resulted in an overly excessive sentencing range and sentenced the defendant to a sentence below the advisory sentence as calculated under the Guidelines – but above the 10 year statutory mandatory minimum.

However, the reasoning and discussion in Kimbrough established that the United States Supreme Court has now acknowledged that the fears that one time supported the 100:1 crack/powder sentencing disparity have proved unfounded and that crack cocaine and powder cocaine are the same drug and bring about the same physiological effects of the user. The decision also cited numerous Commission reports critical of the ratio and urging its abolishment.

Recently, Tilem & Campbell filed an appeal challenging the constitutionality of the federal statutory mandatory minimum sentences applicable to crack cocaine offenses and the 100:1 powder cocaine vs. crack cocaine ratio. The issues raised in the appeal will be discussed in future blogs as will the United States Supreme Court’s recent decision in Kimbrough v United States, 128 S. Ct. 558 (2007).

However, one must have a basic understanding of the federal statutory mandatory minimum sentencing statutes and how they apply to both powder cocaine and crack cocaine to understand the arguments against them as well as the Kimbrough decision. Germane to this discussion is an understanding of the often discussed 100:1 powder cocaine/crack cocaine ratio. It is this ratio that has resulted in crack offenders spending decades in prison while powder cocaine offenders convicted of offenses involving the same weight often spend less than two years in prison.

Basically, for sentencing purposes in the federal system, the relevant statute (21 U.S.C 841) treats one gram of crack cocaine as equivalent to 100 grams of powder cocaine. For example, possession of just 5 grams of crack cocaine (about a thimble full) triggers a five year mandatory minimum sentence. However, it would take 500 grams of powder cocaine (1/2 kilo) to trigger the same mandatory minimum. (See 21 USC 841). Therefore, one who possesses what is clearly a personal use amount of crack cocaine (5 grams) faces the same sentence as a major dealer of powder cocaine.