New York Criminal Attorney Blog
New York criminal defense firm Tilem & Campbell is vigorously challenging the constitutionality of the mandatory minimum sentences for federal crack cocaine offenses set forth in the Anti-Drug Abuse Act of 1986 (ADAA). We currently have one appeal on this issue pending before the Second Circuit Court of Appeals and will be filing another appeal shortly.
The ADAA established a two-tier system of sentencing with 5 and 10 year mandatory minimum sentences for certain manufacturing and distribution offenses. Congress passed the 10 year mandatory minimum to combat “major drug dealers” while the 5 year mandatory minimum was for the “serious traffickers”. In reality, however, the mandatory minimums are weight driven. It is the weight of the drugs involved that controls with no regard for whether the defendant is a “major dealer” or “serious trafficker”.
The ADAA also established a 100-to-1 disparity between the distribution of powder cocaine and crack cocaine (21 U.S.C.A. § 841(b)(1)(A), (b)(1)(B)). For example, distributing just 5 grams of crack cocaine (about a thimble full) carries a mandatory minimum five-year federal prison sentence. However, one must distribute 500 grams of powder cocaine to trigger that same five-year federal prison sentence. (21 U.S.C. § 841).
The absurdity of this disparity is even more apparent when discussing the 10 year mandatory minimum found in 21 U.S.C. § 841(b)(1)(A), (B). Distributing just 50 grams of crack cocaine (less that 2 ounces) triggers a 10 year mandatory minimum. However, it would take 5000 grams of powder cocaine or “5 kilos” to trigger the same 10 year mandatory minimum. That’s a staggering disparity which is not supported by facts, reasons or reality.
The staggering disparity between crack and powder cocaine sentencing can be better appreciated when the two sentences are compared side by side:
Federal Mandatory Minimum Drug Sentences for First Time Cocaine Offenders:
DRUG FIVE YEARS NO PAROLE 10 YEARS NO PAROLE
Crack Cocaine 5 grams (approx a sugar packet) 50 grams
Powder Cocaine 500 grams 5 kilos (5000 grams)
These mandatory minimums for crack offenses were passed because Congress mistakenly believed that crack was more dangerous than powder cocaine because it was thought to be more addictive and involve more violence than powder cocaine; that it was more harmful than powder cocaine; that it was popular amongst teenagers; and that its low cost made it more accessible. See Kimbrough v. U.S., 128 S.Ct. 558, 564 (U.S.,2007).
As I will discuss in my next blog, these concerns and assumptions proved to be unfounded and not supported by the facts. In fact, 23 years of real world experience has shown us that there is absolutely no rational basis for sentencing crack offenses any differently than powder cocaine offenses.
If you are awaiting sentencing, want to appeal a sentence or have any other questions about an appeal issue, feel free to contact one of the experience federal criminal defense attorneys at Tilem & Campbell toll free at 1-888-ANY-CRIME for a free consultation or visit us on the web at 888ANYCRIME.COM