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Karen Redmond, 202-502-2600
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February 12, 2008 — Existing sentencing policies on cocaine have a corrosive effect upon the public’s confidence in the federal courts, Judge Reggie Walton told a Senate Judiciary subcommittee today. That, and concerns for equity and fundamental fairness, he said, are behind Judicial Conference support for legislation to remedy the sentencing disparity between powder and crack cocaine offenses.

Judge Walton, a member of the Conference Committee on Criminal Law and a former White House Associate Director of the Office of National Drug Control Policy, appeared before the Senate Judiciary Committee Subcommittee on Crime and Drugs to testify on "Federal Cocaine Sentencing Laws: Reforming the 100-to-1 Crack/Power Disparity."  Judge Walton current sits on the U.S. District Court for the District of Columbia.

Congress established the current crack-powder disparity with the passage of the Anti-Drug Abuse Act of 1986, believing at the time that crack cocaine was uniquely addictive and associated with greater levels of violence than powder cocaine.

"Because experience has shown that many of the foundations of the 1986 Act were flawed, and because the existing disparity may actually frustrate (instead of advance) the goals of the Sentencing Reform Act," Judge Walton said, "there is now widespread support by many in the United States to reduce the existing sentencing disparity between crack and powder cocaine."

Judge Walton told the subcommittee that he has had citizens refuse to serve on a jury because they are familiar with the existing disparity between crack and powder sentences and believed that federal statutes are racist. He noted that while African-Americans comprise approximately 12.3 percent of the U.S. population, they comprise approximately 81.8 percent of federal crack cocaine offenders. And because crack offenses carry longer sentences than equivalent powder cocaine offenses, African-American defendants sentenced for cocaine offenses wind up serving prison terms that are greater than those served by other cocaine defendants.

"The disparate impact of crack sentencing on African-American communities shapes social attitudes," Judge Walton said. "When large segments of the African-American population believe that our criminal justice system is racist, it presents the courts with serious practical problems. People come to doubt the legitimacy of the law—not just the law associated with crack, but all laws."

Judge Walton told the subcommittee that while the Judicial Conference strongly supports legislation to reduce the "unsupportable" sentencing disparity between crack and powder cocaine, it has no established view on whether the disparity should be reduced by raising penalties for powder, reducing penalties for crack, or through some combination of both approaches.  However, it does oppose mandatory minimum penalties and favors legislation leaving sentencing decisions to judges.  Judge Walton suggested, "Congress may find it prudent to reconsider whether existing minimum penalties are necessary to achieve the goals of sentencing. This would be consistent with the parsimony provision of the Sentencing Reform Act."

In summary, Judge Walton told the subcommittee, "As a representative of the Judicial Conference and as a sentencing judge who is regularly called upon to impose sentences on crack defendants, I encourage Congress to pass legislation that would reduce the disparity between crack and powder cocaine sentences."