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April 29, 2009 — Calling disparity in cocaine sentences, “a specter that has haunted the federal criminal justice system for more than twenty years,” a representative of the Judicial Conference of the United States today urged Congress to pass legislation reducing that disparity.
Testifying before the Senate Judiciary Subcommittee on Crime was Judge Reggie Walton of the U.S. District Court of the District of Columbia, who appeared in his capacity as a member of the Judicial Conference Criminal Law Committee. In the late 1980s, Judge Walton served as the White House Associate Director of the Office of National Drug Control Policy.
“In June 2006, the Criminal Law Committee discussed the fact that 100 times as much powder cocaine as crack is required to trigger the same five-year and ten-year mandatory minimum penalties, resulting in crack sentences that are 1.3 to 8.3 times longer than their powder equivalents,” Judge Walton told the subcommittee. Noting that most informed commentators agree that the ratio between crack and powder is unwarranted, the Committee concluded that “this disparity between sentences was unsupportable, and undermined public confidence in the criminal justice system.”
In September 2006, the Judicial Conference voted to “oppose the existing differences between crack and powder cocaine sentences and support the reduction of that difference.” In 2007 the U.S. Sentencing Commission amended downward the guideline for crack cocaine. Congress permitted the amendment to become effective on November 1, 2007.
Judge Walton noted that the courts “managed ably,” smoothly reviewing more than 19,000 motions for sentencing modification. Available data suggests that recidivism rates among those whose sentences were reduced are no higher than relevant comparison groups.
“This was a courageous and promising first step in ameliorating the disparity that exists between crack and powder sentences,” Judge Walton said. “But as the Commission itself acknowledged, the promulgation of the guideline amendment was only a partial solution to a much larger problem, and the ultimate solution lies with Congress.”
Congress established the crack-powder disparity with the passage of the Anti-Drug Abuse Act of 1986, because, according to Judge Walton, there was a concern that crack cocaine was uniquely addictive and associated with greater levels of violence than was powder cocaine. But despite fears, the anticipated national epidemic of crack use never materialized. He said that the existing disparity may actually frustrate (instead of advance) the parity in punishment that was the goal of the Sentencing Reform Act of 1984.
Judge Walton also pointed to the unequal impact on minorities of the sentencing disparity between crack and powder cocaine. While African-Americans comprise less than 12.4 percent of the U.S. population, they comprise approximately 81.8 percent of federal crack cocaine offenders, but only 27 percent of federal cocaine powder offenses. As a result, African-American defendants sentenced for cocaine offenses serve prison terms greater than those served by other cocaine defendants.
“The Judicial Conference strongly supports legislation to reduce the sentencing disparity between crack and powder cocaine,” Judge Walton told the subcommittee.
“The reform of federal cocaine sentencing can be done in a safe and efficient manner,” Judge Walton said. “As a representative of the Judicial Conference and as a sentencing judge who is regularly called upon to impose sentences on crack defendants, I urge Congress to pass legislation that would reduce the disparity between crack and powder cocaine sentences.”
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