Special Report to the Congress:

Cocaine and

Federal Sentencing Policy

(as directed by section two of Public Law 104-38)

UNITED STATES SENTENCING COMMISSION

April 1997
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Special Report to the Congress:

COCAINE AND FEDERAL SENTENCING POLICY

(as directed by section two of Public Law 104-38)

I. Introduction

Federal sentencing policy for cocaine offenses has come under extensive

criticism during the past few years. Public officials, private citizens, criminal justice

practitioners, researchers, and interest groups have all challenged the fairness and

efficacy of the current approach to sentencing cocaine offenses. Critics have focused

on the differences in federal penalty levels between the two principal forms of

cocaine — powder (cocaine hydrochloride) and crack (cocaine base) — and on the

disproportionate impact the more severe crack penalties have had on AfricanAmerican defendants.

In 1994, these concerns led Congress, in the Violent Crime Control and Law

Enforcement Act of 1994, to direct the Sentencing Commission to issue a report

and recommendations on cocaine and federal sentencing policy. On February 28,

1995, the Commission issued a comprehensive report to Congress in which it

unanimously recommended that changes be made to the current cocaine sentencing

scheme, including a reduction in the 100-to-1 quantity ratio between powder

cocaine and crack cocaine. The report indicated that the Commission would

investigate ways to account for the harms associated with cocaine offenses in the

sentencing guidelines and would then recommend appropriate enhancements and

adjustments in the quantity ratio.

On May 1, 1995, by a 4-3 vote, the Commission sent to Congress proposed

changes to the sentencing guidelines for cocaine offenses. The changes proposed by

the majority would have made the starting point for determining sentences for

powder and crack offenders the same by adopting a 1-to-1 quantity ratio at the

powder cocaine level and would have provided sentencing enhancements for

violence and other harms disproportionately associated with crack cocaine. See 60

Fed. Reg. 25074. The minority dissented based on an assessment that the

recommended enhancements could not sufficiently account for the added harms

associated with crack cocaine and thus did not warrant the total elimination of a

differential between base sentences. 

Pursuant to 28 U.S.C. § 994(p), Congress passed and the President signed

legislation rejecting the Commission’s proposed guideline changes. See Pub.L. No.

104-38, 109 Stat. 334 (Oct. 30, 1995). In the legislation, Congress effectively

returned the issue to the Commission for further consideration and directed the

Commission to submit to Congress new recommendations regarding changes to the

statutes and sentencing guidelines for the unlawful manufacturing, importing,
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exporting, and trafficking of cocaine. We submit this report in compliance with the

1995 congressional directive that “the sentence imposed for trafficking in a quantity

of crack cocaine should generally exceed the sentence imposed for trafficking in a

like quantity of powder cocaine.”

In response to that directive, the Commission again has deliberated carefully

over federal cocaine sentencing policy and has assessed the concerns raised by

Congress, conducted new research, consulted with law enforcement and substance

abuse experts, and reviewed all of the Commission’s prior research and analysis. 

The Commission has accumulated a vast array of information about both powder

and crack cocaine and about the changing markets for these drugs. Based on this

work, the Commission is unanimous in reiterating its original core finding, outlined

in its February 1995 report to Congress that, although research and public policy

may support somewhat higher penalties for crack than for powder cocaine, a 100-

to-1 quantity ratio cannot be justified. The Commission is firmly and unanimously

in agreement that the current penalty differential for federal powder and crack

cocaine cases should be reduced by changing the quantity levels that trigger

mandatory minimum penalties for both powder and crack cocaine. Therefore, for

powder cocaine, the Commission recommends that Congress reduce the current

500-gram trigger for the five-year mandatory minimum sentence to a level between

125 and 375 grams, and for crack cocaine, that Congress increase the current fivegram trigger to between 25 and 75 grams. 

In Part II of this report, we summarize the current federal sentencing law for

cocaine offenses. In Part III, we discuss the goals of federal drug sentencing policy

adopted by Congress, recent administrations, and the Commission. We then

evaluate current cocaine sentencing policy against these goals. Finally, in Part IV,

we set forth our conclusions and recommendations for modifying federal cocaine

sentencing policy.

II. The Current Law

The current sentencing structure for cocaine offenses is primarily the result

of the Anti-Drug Abuse Act of 1986. The Act established mandatory minimum

penalties for persons convicted of trafficking in a variety of controlled substances. 

The 1986 Act pegged the mandatory minimums to specific quantities of drugs

distributed (based on a mixture or substance containing a detectable amount of the

drug). The quantities triggering the Act’s mandatory minimum penalties differed

for various drugs and in some cases for different forms of the same drug. The Act

treated powder cocaine differently than crack cocaine by establishing what has come

to be known as the 100-to-1 quantity ratio between the two forms of cocaine. In

other words, it takes one hundred times as much powder cocaine as crack cocaine to

trigger the same mandatory penalties. Thus, a person convicted of selling 500
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grams of powder cocaine is subject to the same five-year mandatory minimum

sentences as a person selling 5 grams of crack cocaine, while a person convicted of

selling 5,000 grams (5 kilograms) of powder is subject to the same ten-year

mandatory minimum sentence as a person who sells 50 grams of crack.

 In 1987, the Sentencing Commission used the drug quantity levels

designated by Congress — including the quantity levels for cocaine offenses based

on the 100-to-1 quantity ratio — in developing sentencing guidelines for drug

offenses. Using the mandatory minimum statutes, which list only the quantities

corresponding to the five- and ten-year mandatory minimum sentences, the

sentencing guidelines set proportionate sentences for the full range of other powder

and crack cocaine quantities.

Congress also distinguished crack cocaine from both powder cocaine and

other controlled substances in the Anti-Drug Abuse Act of 1988 by creating a

mandatory minimum penalty for its simple possession. This is the only federal

mandatory minimum for a first offense of simple possession of a controlled

substance. Under this law, possession of more than five grams of crack cocaine is

punishable by a minimum five years in prison. Simple possession (without the

intent to distribute) of any quantity of powder cocaine by first-time offenders is a

misdemeanor punishable by no more than one year in prison.

III. The Goals of Federal Drug Sentencing Policy

In response to the 1995 legislative directive, the Commission has carefully

considered each factor listed in the directive and has evaluated current federal

cocaine sentencing policy in relation to congressional and administration goals for

drug offense sentencing generally. These goals have been articulated in debates

surrounding the Anti Drug Abuse Act of 1986 and other legislation, expressed in

statements by officials of several administrations, and embraced generally by the

Sentencing Commission. As we discuss below, these goals suggest that those who

traffic in either powder or crack cocaine should be sentenced severely, but that the

current penalty differential between powder and crack cocaine should be reduced.

A. Sentences Should Be Commensurate With the Dangers

Associated With A Given Drug 

Regardless of the quantity of drug involved, distributing any of the primary

domestic illegal drugs — heroin, cocaine (powder or crack), methamphetamine,

PCP, LSD, or marijuana — is a serious crime. All of these drugs cause great harm

to individuals and to society at large, and the stern punishments meted out under

federal law for drug distribution reflect congressional, executive, and Sentencing
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Commission judgment about the gravity of these offenses and the menace caused by

these drugs.

Congress and the Commission have also concluded, however, that some of

these drugs have more attendant harms than others and that those who traffic in

more dangerous drugs ought to be sentenced more severely than those who traffic

in less dangerous drugs. This policy is meant both to discourage the trafficking of

more serious drugs and to punish those who do more harm to society by

distributing these drugs. The policy is embodied, for example, in the federal

schedules of controlled substances, 21 U.S.C. § 812, that differentiate the more

dangerous controlled substances from those that are less dangerous, as well as in the

different penalty levels associated with trafficking in the various scheduled

substances, 21 U.S.C. § 841.

The Commission’s research, detailed at great length in its 1995 report, found

significant dangers associated with both crack and powder cocaine trafficking and

use. The Commission also found, however, that many of these dangers are

associated to a greater degree with crack cocaine than with powder cocaine. For

example, crack cocaine is more often associated with systemic crime — crime related

to its marketing and distribution — particularly the type of violent street crime so

often connected with gangs, guns, serious injury, and death. In addition, because it

is easy to manufacture and use and relatively inexpensive, crack is more widely

available on the street and is particularly appealing and accessible to the most

vulnerable members of our society. Unfortunately, the purveyors of crack worked

hard to design a method to distribute the drug at a cheap price, making it appealing

to the most economically disadvantaged of our society. Finally, because crack is

smoked rather than snorted, it produces more intense physiological and

psychotropic effects than snorting powder cocaine, and so the crack user is more

vulnerable to addiction than the typical powder user, though we note that injecting

powder cocaine into the bloodstream produces effects similar to smoking crack and

hence creates a similar vulnerability to addiction. Based upon these findings, the

Commission reiterates the conclusion from its 1995 report that federal sentencing

policy must reflect the greater dangers associated with crack. 

B. Five- and Ten-Year Mandatory Sentences Should Be Targeted At

Serious Traffickers

Since 1986, federal drug sentencing policy has been based in part on the

principle that the quantity of drug involved in an offense reflects both the harm to

society as well as the offender’s culpability. Accordingly, Congress countenanced in

the Anti-Drug Abuse Act of 1986 that any drug trafficker accountable for a quantity

of drug indicative of a “mid-level” or “serious” trafficker ought to receive, with very

few exceptions, at least a five-year prison sentence. To determine the quantity of

drugs indicative of mid-level or serious traffickers, Congress consulted with drug
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enforcement experts to gather information about drug markets at the time and set

quantity triggers based on this information.

In reexamining current cocaine sentencing policy, the Commission has used

this same approach based on updated market information. In 1986, the crack

cocaine market was just emerging, and since that time, much more has been learned

about the marketing of both powder and crack cocaine. Recently, the Commission

requested and obtained information from the Drug Enforcement Administration

(“DEA”), the Office of National Drug Control Policy, the National Institute on

Drug Abuse, and the Substance Abuse and Mental Health Administration to

reevaluate the quantity levels of drug associated with mid-level or serious traffickers. 

Following these consultations and based on the Commission’s own data —

including data that have become available since the Commission’s 1995 report —

the Commission concludes that the five-gram trigger for crack cocaine is over

inclusive because it reaches below the level of mid-level or serious traffickers who

deserve the five-year statutory penalty.

Five grams of crack cocaine is indicative of a retail or street-level dealer rather

than a mid-level dealer. Accordingly, the Commission concludes that the five-gram

trigger should be increased to better target mid-level dealers. This is not to say that

all street-level cocaine dealers should receive sentences of less than five-years

imprisonment. If a street-level dealer possesses a gun, is involved in violence or

other aggravating conduct, uses juveniles, or is involved in unusually large

quantities of drugs, a more severe sentence would be warranted. Both the

guidelines and other laws provide for such enhancements. But based solely on

quantity, our analysis suggests that an appropriate trigger for the five-year

mandatory sentence for crack offenses should be higher than five grams.

For powder cocaine, the information and data suggest that some decrease in

the quantity trigger may be warranted. Because nearly all cocaine is initially

distributed in powder form until some later time in the distribution chain when

some is then converted to crack, the Commission believes that it is appropriate to

increase penalty levels for trafficking in powder cocaine to partially reflect the

greater harms associated with crack and to reduce unwarranted sentencing disparity

between powder and crack cocaine traffickers. In addition, the ease with which

powder cocaine is converted to crack cocaine also suggests that some increase in

powder cocaine penalties may be appropriate. For these reasons, the Commission

concludes that a more appropriate quantity trigger for the five-year mandatory

sentence for powder cocaine would be less than 500 grams.

It is important to note that, although changes in the quantity triggers for

crack and powder cocaine would change the starting point for determining

sentences under the guidelines, ultimate sentences are based on more than simply

drug quantity. In contrast to a penalty structure that relies exclusively or primarily
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on a quantity ratio to distinguish among offenders, the guidelines approach allows

for the more refined and individualized sentencing that Congress envisioned under

the Sentencing Reform Act as well as the most efficient and effective use of scarce

federal prison resources. The Commission reiterates its 1995 conclusion that, when

applicable, guideline enhancements should be used to account for harms related to

crack and powder cocaine offenses with less reliance put on drug quantity. For

example, any cocaine trafficker who possesses or uses a firearm or other dangerous

weapon during a drug crime ought to receive a substantially enhanced sentence. 

Other factors — such as the use of juveniles in a drug trafficking offense, a

defendant’s prior drug trafficking convictions, a defendant’s role in the offense, and

the other factors listed in the 1995 congressional directive — are all important in

determining an appropriate drug sentence. The enhancements in the guidelines

system can account for these and other important factors related to a defendant’s

criminal culpability and should be relied on to the greatest extent possible.

C. Cocaine Sentencing Policy Should Advance the Federal

Government’s Role in the National Drug Control Effort and

Rationalize Priorities for the Use of State and Federal Resources

in Targeting Drug Use and Trafficking

The federal government and state governments share a common interest in

developing an effective drug control policy that allocates responsibility for

prosecution, adjudication, sentencing, and imprisonment in such a way that these

functions are carried out in the most efficient, effective, and constitutionally

appropriate manner. Sentencing policy plays an important role in the allocation of

resources among federal, state, and local government entities. Thus, the

Commission is increasingly convinced that federal sentencing policy must be

designed in coordination with a larger national effort that recognizes and takes into

account the appropriate allocation of drug enforcement and drug control efforts at

all levels of government.

National drug control policy over the last decade has, for appropriate

reasons, relied upon extensive coordination and cooperation among federal, state,

and local governmental entities. The result has been that both the federal

government and state and local governments are targeting many of the same

offenders and the same criminal activity in an effort to root out perpetrators of

drug-related criminal activity. Stated another way, in most instances, the same

offenders and the same criminal activity can jurisdictionally be prosecuted,

adjudicated, sentenced, and imprisoned in either the state or federal system. The

choice about whether to proceed under state or federal law has, to some extent, been

driven by comparisons of these overlapping sentencing policies. 

The resources available at all levels of government are limited and will, in the

foreseeable future, be increasingly stretched. This is particularly true in the area of
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law enforcement, judicial resources, and prison resources. Thus, in the sentencing

context, as well as many other contexts inherent in the criminal justice system, we

support national efforts to rationalize and target, in an efficient and effective way,

the manner in which criminal justice resources are deployed to take into account the

appropriate roles of the federal government as compared with state and local

governments, and to focus the use of criminal justice resources in such a way that

the effectiveness of the resources is maximized and the appropriate roles of each level

of government are recognized. The constitutional principles of federalism are no

less imperative in the criminal law context than they are in other areas of

constitutional inquiry. See United States v. Lopez, 514 U.S. 549 (1995). Although

this goal of rationalizing and allocating the respective roles of federal and state and

local governments is an issue far bigger than sentencing policy, the Sentencing

Commission recognizes and takes as one of its goals the effort to try to draw

appropriate thresholds for federal sentencing that will take into account the regional

variations and preferences of state and local governments that should be respected in

the criminal law context. 

To this end, it is our view that federal sentencing policy should reflect federal

priorities by targeting the most serious offenders in order to curb interstate and

international drug trafficking and violent crime. Consistent with general

constitutional principles of interstate commerce and the appropriate roles of the

federal government, it is our view that an effort to rationalize federal sentencing

policy would attempt to identify those components of the criminal element in drug

trafficking that are most appropriate for federal concern and reserve to the states

those criminal activities and defendants that state resources could most effectively

target and consider in their own sentencing schemes. Though most of the

overlapping jurisdiction between the state and federal governments in national

crime control policy may be authorized by the Constitution, it does not necessarily

follow that such overlapping jurisdiction is either the most effective or the most

efficient use of the combined resources of the federal and state governments. For

example, it is clear in looking at state sentencing schemes that states have historically

made a wide variety of choices about the sentencing of persons who are deemed

low-level offenders or who are apprehended with street-level amounts of drugs. 

These choices reflect traditional state responsibility for addressing public health,

safety, and welfare issues related to addicts, street-level crime, and persons low in

local distribution chains. States may be able to address these issues more

economically and with more locally-focused penal and social goals than can be

achieved by the federal government. 

Federal cocaine sentencing policy is an excellent example of a place to start

rationalizing federal and state priorities with respect to drug control. It is the view

of the Sentencing Commission that current federal cocaine policy inappropriately

targets limited federal resources by placing the quantity triggers for the five-year

mandatory minimum penalty for crack cocaine too low. The use of federal
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sentencing policy as the machine to drive enforcement, adjudication, and

imprisonment choices does not reflect a thoughtful and considered choice about the

most effective use of public resources at all levels. This debate about the proper role

of the respective levels of government goes far beyond federal cocaine policy. We

are convinced, however, that adjusting the powder and crack five-year quantity

triggers to target serious dealers will begin the process of adjusting national drug

policy in a way that effectively and efficiently directs resources at all levels.

D. Cocaine Sentencing Policy and Practice Must Be Perceived By the

Public As Fair

One of the issues of greatest concern surrounding federal cocaine sentencing

policy is the perception of disparate and unfair treatment for defendants convicted

of either possession or distribution of crack cocaine. Critics argue that the 100-to-1

quantity ratio is not consistent with the policy, goal, and mission of federal

sentencing — that is to be effective, uniform, and just. While there is no evidence

of racial bias behind the promulgation of this federal sentencing law, nearly 90

percent of the offenders convicted in federal court for crack cocaine distribution are

African-American while the majority of crack cocaine users is white. Thus,

sentences appear to be harsher and more severe for racial minorities than others as a

result of this law. The current penalty structure results in a perception of unfairness

and inconsistency.

Designing sentencing policy to properly focus federal resources on the most

violent and dangerous offenders will also help alleviate concerns that have been

raised with the Commission about prosecutorial and investigative sentencing

manipulation. For example, because powder cocaine is easily converted into crack

cocaine and because the penalties for crack cocaine offenses are significantly higher

than for similar quantity powder cocaine offenses, law enforcement and

prosecutorial decisions to wait until powder has been converted into crack can have

a dramatic impact on a defendant’s final sentence. To the extent that the differential

is reduced, the potential for this practice will also diminish.
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IV. Conclusions and Recommendations

A. Penalties for Cocaine Trafficking

In reassessing penalties for cocaine trafficking, the Commission has moved

step-by-step through an evaluative process that examined all of the factors listed by

Congress in the 1995 legislation and the goals set forth above. In arriving at

recommended changes to current policy, the Commission has balanced conflicting

goals. The Sentencing Commission shares congressional and public concern about

the harms associated with both forms of cocaine — both to users and to the society

as a whole — including the violence associated with its distribution, its use by

juveniles, the involvement of juveniles in its distribution, and its addictive potential. 

However, as the Commission reported in 1995, we again conclude unanimously

that congressional objectives can be achieved more effectively without relying on the

current federal sentencing scheme for cocaine offenses that includes the 100-to-1

quantity ratio.

The Sentencing Commission thereby recommends that Congress revise the

federal statutory penalty scheme for both crack and powder cocaine offenses. 

Selecting the appropriate threshold for triggering the five-year mandatory minimum

penalties is not a precise undertaking, but based on the best available research and

the goals detailed above, the Commission recommends for Congress’s consideration

a range of alternative quantity triggers for both powder and crack cocaine offenses. 

For powder cocaine, the Commission concludes that the current 500-gram trigger

for the five-year mandatory minimum sentence should be reduced to a level between

125 and 375 grams, and for crack cocaine, the five-gram trigger should be increased

to between 25 and 75 grams. 

We urge Congress to adopt a ratio within the quantity ranges we have

recommended to address the problem as soon as possible, as hundreds of people will

continue to be sentenced each month under the current law. After Congress has

evaluated our recommendations and expressed its views, the Commission will

amend the guidelines to reflect congressional intent. Consistent with the principles

of the Sentencing Reform Act of 1984, the Commission believes that better

sentencing policy — for cocaine as well as for other offenses — is developed

through Commission research and expertise together with regular and ongoing

consultation with Congress and the Executive Branch. We intend to continue to

work closely with Congress and senior administration officials as pertinent

legislation is developed. By doing so, we believe a fairer and more effective cocaine

sentencing policy — one that better targets serious and upper-level dealers and the

most violent and dangerous drug offenders — can be created.

The Commission is mindful that these and other related sentencing changes

could have a substantial impact on the federal prison population, thus changing the
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resources available for other drug control strategies. The President, the Attorney

General, the Congress, and the Office of National Drug Control Strategy have

repeatedly indicated that an effective drug control strategy requires a balanced

approach of domestic and international law enforcement, interdiction, prevention,

and treatment. The impact of policy changes on drug control resources must be

considered seriously before making any substantial increase in drug sentences. The

Commission is prepared to provide impact analysis and other expertise to both

Congress and the Executive Branch at any time.

B. Penalties for the Simple Possession of Crack Cocaine

The Commission has also reassessed the penalties uniquely applicable to the

simple possession of crack cocaine. Much of the rationale for reexamining the 100-

to-1 quantity ratio applicable to cocaine trafficking offenses similarly applies to the

penalties applicable to crack simple possession offenses. The Commission reiterates

its unanimous finding that the penalty for simple possession of crack cocaine should

be the same as for the simple possession of powder cocaine.

Richard P. Conaboy

 Chairman

Michael S. Gelacak

Vice Chairman

Michael Goldsmith

 Vice Chairman

Wayne A. Budd

 Commissioner

Deanell R. Tacha

 Commissioner

Michael J. Gaines

 Ex-officio

Mary Frances Harkenrider

 Ex-officio
Concurring Opinion – April 1997

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Concurring Opinion of

VICE CHAIRMAN MICHAEL S. GELACAK

COCAINE AND FEDERAL SENTENCING POLICY

(as directed by section two of Public Law 104-38)

I concur with my colleagues in this report and the recommendations in

response to Congress’s request. However, the recommendations, while moving our

federal sentencing system in the direction of greater fairness, fail to rectify fully an

unjust sentencing system for crack cocaine. After several years of careful study,

detailed examination of our sentencing system, and meetings with defendants

sentenced under these penalties, I have come to the conclusion that Congress

established an unfair mandatory minimum of five years for trafficking in five grams

of crack cocaine. This is particularly the case when those who traffic in up to 500

grams of powder cocaine may in many instances not even be prosecuted at the

federal level. The Sentencing Commission exacerbated this problem by constructing

its guidelines to increase sentences proportionately for drug quantities above

mandatory minimum levels. The result is extremely severe sentences for those at the

lower ends of the drug distribution chain.

I support severe sentences for serious criminal conduct. I oppose a penalty

structure that results in unfair sentences, and it is clear to me that the current

mandatory minimum sentences for five grams of crack cocaine are unjust and that

failing to correct the imbalance with powder cocaine does not serve justice. I am

also troubled by the economics of this penalty structure. Incarceration is expensive. 

Whether lengthy federal prison sentences for street-level crime is the wisest use of

scarce resources deserves far more consideration. I believe the country would be

better served by our dealing more directly with these issues. Political compromise is

a function better left to the Legislature. 

Congress and the Sentencing Commission have a responsibility to establish

fair sentencing standards that protect the public, enhance the public’s confidence in

our criminal justice system, and ensure that similarly situated offenders are treated

similarly. For the majority of crimes, we have accomplished these goals by

establishing a “truth in sentencing” system and fair sentencing standards. We have

jointly failed in our approach toward crack cocaine sentences, and the result is

seriously disparate sentences. We should not lose sight of that overriding reality. 

President Kennedy in a speech to the Massachusetts State Legislature said:

For of those to whom much is given, much is required. 

And when at some future date the high court of history
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sits in judgment on each of us, recording whether in

our brief span of service we fulfilled our responsibilities

to the state, our success or failure, in whatever office we

hold, will be measured by the answers to four

questions: First, were we truly men of courage.... 

Second, were we truly men of judgment.... Third, were

we truly men of integrity.... Finally, were we truly men

of dedication?

Does any Commission preserve its integrity by persevering in that which it is

unable to accomplish even though it believes it to be right? The answer seems

apparent. In its original recommendation to the Congress, the Commission

proposed changes to the sentencing guidelines for cocaine offenses that would have

equated base sentences for powder and crack offenders by adopting a 1:1 quantity

ratio at the powder cocaine level with sentencing enhancements for violence and

other harms disproportionately associated with crack cocaine.

Congress and the Administration chose not to accept that recommendation. 

The Congress specifically rejected the proposed amendments that would otherwise

have taken effect by operation of law on November 1, 1995. That, of course, was

the prerogative of both but does not necessarily lead to the conclusion that the

Commission’s recommendation was wrong as a matter of policy.

We can argue over the merits. We could also propose simple solutions in the

hope that the problem would then go away. The Commission, for its part, could

simply do nothing. Silence is clearly the simplest course. I believe that that would

accomplish nothing positive. Conversely, the Congress could suggest that the ratio

be eliminated by simply raising the penalties for powder cocaine to the same level as

crack. That also would accomplish nothing positive. There are no easy answers. 

During the year 1993, of those sentenced for crack cocaine, 88.3 percent

were Black and 95.4 percent were non-White. Even though the Commission has

conceded that there was no intent by the Legislature that penalties fall

disproportionately on one segment of the population, the impact of these penalties

nonetheless remains. If the impact of the law is discriminatory, the problem is no

less real regardless of the intent. This problem is particularly acute because the

disparate impact arises from a penalty structure for two different forms of the same

substance. It is a little like punishing vehicular homicide while under the influence

of alcohol more severely if the defendant had become intoxicated by ingesting cheap

wine rather than scotch whiskey. That suggestion is absurd on its face and ought be

no less so when the abused substance is cocaine rather than alcohol.

The logic of this analogy is compelling, but even if that is not so, eliminating

discrimination is a principle to which this nation has committed itself. As a signator
Concurring Opinion – April 1997

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of the United Nations International Convention on the Elimination of all Forms of

Racial Discrimination, the United States pledged to:

... take effective measures to review governmental,

national and local policies, and to amend, rescind or

nullify any laws and regulations which have the effect of

creating or perpetuating racial discrimination wherever

it exists.

Clearly the 100:1 powder/crack cocaine ratio would qualify as such a law. 

Although a discussion of the nation’s drug abuse problem and the impact of

penalties on African Americans and other people of color is often uncomfortable

and elevates the profile of the issue as well as the political consequences, we cannot

choose to ignore it or act as if it is of no concern. The perception of unfairness is a

very real problem. Black Americans know that the penalties for crack cocaine fall

primarily upon the youth of their communities and they do not countenance the

present penalty structure. There is a vast difference between wanting to rid your

neighborhoods of crack users and dealers and wanting members of your community

treated more harshly than others using and trafficking in the same substance in a

different form. How is what we are doing or propose to change making the lives of

these people better? It seems to me it is not. Rather, I believe that those we would

like to protect and help are those most affected and harmed by a law that clearly

leads to a racially disparate and overly severe result. That is wrong. 

There are other, and better ways to deal with drug abuse in this country. 

The current quantity-driven system of imposing penalties is simplistic and quite

effective in filling our prisons. It begs the question of what the role of the federal

government ought to be with regard to drug use, abuse, and trafficking. Should the

federal government focus its enforcement efforts more on street-level dealers or on

major importers and traffickers of the drug trade? Is the best use of federal

manpower concentrating on street-level trade or are states and localities better able

to be cost-efficient in this area? Conceding that reasonable men and women can and

do differ on these questions, I submit that the federal government ought to focus

resources on the major players in the drug trade and leave the street-level players to

be dealt with by state courts as a local issue. If you accept that premise of different

roles for the federal and state governments in dealing with drug abuse, a federal

penalty scheme based upon significant punishment for minimal quantities of drugs

is counterproductive. The current policy focuses law enforcement efforts on the

lowest level of the distribution line – the street-level dealer. Unless we ignore all

evidence to the contrary, the current policy has little or no impact upon the drug

abuse problem. The jails are full. Drug abuse is a more significant problem than it

was when Congress in 1986 adopted mandatory minimum penalties based on the

quantity of drugs involved in the offense. There also seems to be an unending
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supply of willing participants in the drug trade, and it is unlikely that many citizens

would say they feel significantly safer today than they did 20 or even ten years ago. 

As a nation, we cannot punish our way out of this problem. Increased penalties and

sentences offer no panaceas for societal ills. We need to look at other solutions and

stop making false promises. We should be concerned about our current focus on

long-term incarceration and where that leads us. Is it more advantageous to invest

in structures or people? Does it make sense to invest upwards of $100,000 of

federal resources to incarcerate someone involved in a street-level drug transaction

that at best will net a few hundred dollars illicit profit, or are there other ways to get

at and deal with this problem?

It seems to me that a better way to direct the federal law enforcement effort

in dealing with the drug abuse problem is to change the focus of statutory

mandatory minimum penalties from quantities of drugs to consideration of the role

of the perpetrator in the offense. This change would target our law enforcement

efforts on middle- and high-level drug dealers. Congress, the Administration, and

this Commission could probably all agree on a statute that increases penalties for

serious offenders and might actually impact the flow of drugs to our communities. 

This approach, not inconsequentially, resolves the problem caused by the different

penalty structures for powder and crack cocaine. 

Although an approach that would lower sentences for a segment of low-level

defendants could be labeled “soft on crime,” additional considerations indicate that

the label might be inaccurate. Recognizing that whenever concerns about lowering

penalties are raised the level of discourse is amplified, the Commission nonetheless

would be remiss in not acknowledging that it has information (based on interviews,

discussions, correspondence and commentary solicited from those involved in the

criminal justice system throughout the country) that many judges, wardens, police

officials, law enforcement officers, assistant United States attorneys, probation

officers and Members of Congress are also concerned about the injustices caused by

the present drug sentencing policies.

Additionally, public attitudes about appropriate drug penalties may be

different from the view generally acknowledged. In its study, Just Punishment: 

Public Perceptions and the Federal Sentencing Guidelines, the Commission, as a

result of a national survey found that generally respondents were more likely to give

crack cocaine traffickers shorter punishments than those called for under the

sentencing guidelines. That finding is startling and contrasts sharply with widely

expressed views. If the public and various law enforcement officials and personnel

acknowledge there is a problem, perhaps the Commission and Congress and the

Administration ought to pay attention. Bad laws weaken respect of good laws. 

Consequences follow. Sooner or later all those people who feel alienated as a result

of receiving what they believe to be unfair treatment and unjust sentences will be
Concurring Opinion – April 1997

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released from jail. Does this country really expect them to become productive

members of society or might we anticipate some retributive behavior?

I believe strongly that the disparity between penalties for the same quantities

of crack and powder cocaine is wrong. The only real solution to the injustice is to

eliminate it. I also believe that tenacity of purpose in a rightful cause should not be

shaken by the frenzy of those clamoring for what is wrong. The congressional

mandate that penalties for crack cocaine must be higher than those for a similar

quantity of powder cocaine, however, makes it impossible for the Commission

alone to accomplish that goal at the present time. The Commission’s

recommendation is better than simply choosing to ignore the problem.