Sentencing Guidelines

  • December 8, 2011

    by Jeremy Leaming

    President Obama and Congress took a significant step toward “fair and proportionate penalties” for some drug offenders with enactment last year of the Fair Sentencing Act, but additional reform legislation is needed to overcome the harsh effects of the nation’s so-called War on Drugs, a new ACS Issue Brief states.

    Kara Gotsch, the director of advocacy for The Sentencing Project, details, in her Issue Brief, the effect of the “War on Drugs” on our criminal justice system, noting that two laws enacted in the late 1980s created “hefty mandatory minimum sentences for drug offenses, including mandatory penalties for crack cocaine offenses that were the harshest ever adopted for low-level drug offenses.”

    Specifically, Gotsch writes, persons convicted of “possessing as little as five grams of crack cocaine were subject to a mandatory minimum sentence of five years in prison. Defendants with at least 50 grams were subject to a ten-year mandatory minimum sentence.” But offenses involving powder cocaine resulted in significantly lighter sentences.

    This sentencing disparity falls disproportionately on “African Americans despite evidence that the prevalence of drug use is similar across racial ethnic groups, suggesting disparate enforcement of facially neutral policies. An estimated two-thirds of all crack cocaine users are white or Hispanic, and surveys of users suggest that they generally purchase their drugs from sellers of the same racial and ethnic backgrounds. Nevertheless, 79 percent of federal crack cocaine defendants in 2010 were African Americans.”

    In 2004, Gotsch notes, the U.S. Sentencing Commission, created in 1984 by Congress and comprising federal judges and lawyers, issued a report declaring that revising “the crack cocaine thresholds would better reduce the [sentencing] gap than any other policy change, and it would dramatically improve the fairness of the federal sentencing system.”

  • September 21, 2011
    Guest Post

    By Matt Kaiser, an attorney at The Kaiser Law Firm PLLC. Mr. Kaiser blogs at Federal Criminal Appeals Blog.


    Reason magazine recently featured an article on President Barack Obama and the drug war. The title, albeit in rather hyperbolic fashion, says it all – “Bummer.”

    Many of us thought that when Obama came into office the war on drugs would be different.  Reason’s Jacob Sullum, in his article, “Bummer,” however, takes Obama to task for not living up to the expectations of those who want our national drug policy reformed. I think, though, that Sullum goes a little too far.

    The reasons for desperately needing reform are many and existed well before Obama came to office. Mandatory minimums are too harsh and hurt too many low-level participants in the drug trade. Our incarceration rates lead the world – perhaps the most verifiable form of American Exceptionalism we have. We are spending ourselves into oblivion both domestically and abroad. And, apparently, 65 percent of us think that the war on drugs is a failure.

    Before he became president, Obama knew our drug policy needed to change. As a candidate for the United States Senate, he described our war on drugs as an “utter failure.” As an Illinois state senator he said that “we can’t continue to incarcerate ourselves out of the drug crisis.” As he was gearing up to run for President, he advocated a “public health” approach to our nation’s problem with narcotics.

    Sullum paints Obama too negatively – viewed properly, I think the president’s record has been a mixed bag.

  • September 20, 2011
    Guest Post

    By Nkechi Taifa, senior policy analyst for the Open Society Policy Center. She will discuss drug policy reform during two panel discussions at the Congressional Black Caucus Foundation’s Annual Legislative Conference this week.


    For a quarter of a century mandatory minimum sentences have resulted in egregiously severe and harsh punishments which often do not fit the crime, have racially disparate outcomes, increase overcrowding, and exacerbate prison costs. These sentences are the result of a war on drugs that has been disproportionately fought in Black and Latino communities. The impact of the war on drugs on individuals, families, and communities has been likened to a “new Jim Crow,” resulting in the mass incarceration and over-representation of people of color in the criminal justice system.

    As a quick reminder: A mandatory minimum sentence is a prison term predetermined by Congress and automatically imposed for certain crimes, primarily drugs and firearms. It is the minimum penalty that a judge must impose. In most cases the sentence is at least five years, and often it is 10, 15, or 20 years or more, even for nonviolent first time offenders. 

    One of the problems with inflexible mandatory sentencing laws is that they are applied regardless of the role of the defendant and of other factors, which judges traditionally take into account for sentencing, such as the history and characteristics of the defendant and the likelihood of rehabilitation. 

  • June 16, 2011

    An article in Politico today suggests U.S. Attorney General Eric Holder is reemerging as a liberal voice reports that he will “showcase many of those left-leaning positions” during his address tonight at the ACS Tenth Anniversary National Convention, “Constitution at the Crossroads: Progress Imperiled?”

    The article notes that the location of the 9/11 trials had “defined much of his tenure,” and with that behind him, he has been freed to focus on other issues close to his heart, such as fair drug crime sentencing.

    Holder will deliver keynote remarks during the opening gala dinner tonight, following the final round of the ACS Constance Baker Motley Moot Court Competition, and an opening panel on nontraditional lawyers and their impact on the law, featuring Slate’s Dahlia Lithwick, cartoonist Ruben Bolling and former ACS Executive Director Lisa Brown, who runs a new White House government reform initiative.

    The full schedule for the three-day convention is available here and general information about the convention is here. For those who have not yet registered but are interested in attending, on-site registration at the Capital Hilton begins at noon today.

  • August 6, 2010
    Guest Post

    By Nkechi Taifa, Senior Policy Analyst at The Open Society Policy Center and the author of an ACS Issue Brief, "The 'Crack/Powder' Disparity: Can the International Race Convention Provide a Basis for Relief?"
    For nearly a quarter of a century the disparity between crack and powder cocaine sentencing has stood out as one of the most notorious illustrations of unfairness in the criminal justice system. Since 1986 low-level crack cocaine offenders selling sugar packet and candy-bar-weight quantities of crack cocaine have been punished far more severely than their counterparts who trafficked in large-scale quantities of powder cocaine. For example, one who possessed just 5 grams of crack cocaine received a mandatory felony sentence of at least five years without parole in federal prison, yet one selling 100 times that amount of powder cocaine -- 500 grams -- received the same five-year sentence. Far from being "tough on crime," this 100:1 quantity ratio of low level crack prosecutions amounted to what has been described as "junk food justice," primarily impacting African Americans at the bottom rung of the drug chain.

    As a result of bipartisan legislation passed by Congress and signed into law by President Obama on August 3, the five-year sentence for simple possession of crack cocaine has been eliminated. This represents the first time in 40 years that a federal mandatory minimum sentence has been repealed, making the Fair Sentencing Act (S. 1789) a historic legislative achievement. Although advocates fought long and hard for the complete elimination of disparate treatment in crack cocaine sentencing, the Act significantly lowered the 100:1 ratio for distribution of crack to 18:1. While not ideal, achieving this reduction with agreement across the political spectrum was extraordinary, particularly with mid-term elections looming. The new 18:1 ratio will bring relief to nearly 3,000 cases a year, reduce crack sentences by nearly 30 months and, according to the Congressional Budget Office, save the federal government $42 million dollars over a five year period.

    Rare bipartisan consensus in support of drug sentencing reform was the catalyst in the passage of the Fair Sentencing Act. Widespread agreement from not only civil rights and criminal justice groups that have historically worked on the issue, but also support from the White House and Justice Department, law enforcement and prosecutors, and political and religious conservatives, was influential. Partisan politics was tabled as Senators and Representatives from both sides of the aisle spoke to the critical need for reform. Rather than the political posturing of "tougher than thou" on crime, the overriding sentiment became "smarter on crime." A groundswell of bipartisan support culminated in "cracking" the disparity, and now it is critical that these same champions come together to support continued reform.