With Prosecutors Like These . . . DOJ Vows to Eliminate Crack-Cocaine Disparity

Acknowledging that “[a] consensus has developed that the federal cocaine sentencing laws should be reassessed,” the Department of Justice has announced plans to establish a working group to formulate a complete elimination of the crack-cocaine disparity in the sentencing laws.  This disparity is “difficult to justify based on the facts and science, including evidence that crack is not an inherently more addictive substance than powder cocaine,” Lanny A. Breuer, the new Chief of DOJ’s Criminal Division, explains in his prepared remarks to Congress.  He elaborates:

[W]e think that the best way to address drug-related violence is to ensure the most severe sentences are meted out to those who commit violent offenses.  However, increased penalties for this conduct should generally be imposed on a case-by-case basis, not on a class of offenders, the majority of whom do not use any violence or possess a weapon.

For the time being, nothing will change: “Until a comprehensive solution – one that embodies new quantity thresholds and perhaps new sentencing enhancements – can be developed and enacted as legislation by Congress and as amended guidelines by the Sentencing Commission, federal prosecutors will adhere to existing law.”  Recognizing, however, “federal courts have the authority to sentence outside the guidelines in crack cases or even to create their own quantity ratio,” federal prosecutors “will inform courts that they should act within their discretion to fashion a sentence that is consistent with the objectives of 18 U.S.C. § 3553(a) and . . .  will bring the relevant case-specific facts to the courts’ attention.”

So, in the meantime, what can practitioners do?  Well, for one thing, try to get plea agreements based on a 1:1 ratio.  DOJ’s new policy involves achieving crack-cocaine parity with regard to both mandatory minimums and the guidelines.  While the Department has not yet formally implemented any changes, its plans to try to eliminate the disparity support a less hard-line approach in plea-bargaining crack cases, especially cases involving non-violent offenders.  And of course, DOJ’s commitment to an elimination of any disparity, coupled with its acknowledgement of a sentencing court’s powers to develop whatever ratio it chooses, are additional ammunition in the arsenal of reasons why a sentencing court should not wait for Congress to act, but should utilize a 1:1 crack-cocaine ratio right now.