New York Criminal Attorney Blog
Currently, Tilem & Campbell has one appeal pending before the United States Court of Appeals for the Second Circuit challenging the constitutionality of the previously discussed 100:1 powder cocaine v. crack cocaine sentencing discrepancy. Tilem & Campbell has another Federal Narcotics case for which it is preparing the appeal now. Among other arguments, we have presented an Equal Protection argument centered on the unequal sentences imposed on crack offenders as compared to powder cocaine offenders.
Every day that a crack offender spends in prison beyond that which a powder cocaine offender would spend for the same quantity of drug is an unconstitutional deprivation of liberty; a fundamental right. Such sentencing discrepancies cannot survive a rational basis analysis let alone a strict scrutiny analysis.
The above-discussed “100-to-1 ratio yields sentences for crack offenses three to six times longer than those for powder offenses involving equal amounts of drugs.” Kimbrough v. U.S. 128 S.Ct. 558 (2007). As a result of this disparity, “a major supplier of powder cocaine may receive a shorter sentence than a low-level dealer who buys powder from the supplier but then converts it to crack.” Id.
Such a penal disparity bears no relation to the government’s goals and no ground can be conceived to justify them. When Congress passed the crack cocaine mandatory minimums, it believed, as did many others at the time, that crack was leading a parade of evils into a national drug-abuse epidemic.
These fears, however, proved unfounded. When the United States Sentencing Commission began to empirically research cocaine sentencing policy, it soon found, much to its dismay, that the 100:1 disparity bore little relationship to differences that actually existed between the two forms of cocaine. The data showed that the disparity significantly overstated the relative seriousness of crack offenses. As discussed in a previous blog, crack and powder cocaine are two forms of the same drug.
If you would like to discuss this issue further or have a another sentencing issue including an appeal, contact Tilem & Campbell toll free at 1-877-377-8666 for a free telephone consultation or visit on the web, www.888AnyCrime.com