Sentencing Guidelines

  • August 3, 2010
    Guest Post

    Pat Nolan is Vice President of Prison Fellowship, an outreach program to prisoners and their families, and leads the ministry's criminal justice reform arm, Justice Fellowship. For more information about drug policy reform, go to Justice Fellowship's Drug Policy Key Issue Page

    In an important victory for justice, President Obama today signed the Fair Sentencing Act of 2010, putting an end to the 100-to-1 disparity between punishments for crack cocaine and powder cocaine.

    The passage of the bill was a pivotal point in the fight to correct imbalances in our sentencing laws. The bill repeals a mandatory minimum sentence for the first time since mandatory minimums were introduced in the Nixon administration. It is important to note that this law had the support of Members of Congress from both sides of the aisle who joined forces in a remarkable display of non-partisan solidarity.

    A unanimous Senate voted to reform the disparity in March, and the House passed the bill at the end of July. With conservative sponsors such as Tom Coburn and John Cornyn joining progressives like Richard Durbin and Al Franken, Congress finally acted to correct this horrible injustice. Rep. Dan Lungren, a former California Attorney General, delivered a statement to the House endorsing the act, saying, "I believe that this is what justice should be about. This is a well-crafted bill, a good compromise; it serves the ends of justice and fairness."

    The bill was also supported by a vast number of associations and advocacy groups of all stripes. The Federal Law Enforcement Officers Association, the National District Attorneys Association and the International Union of Police Associations joined groups such as Prison Fellowship, Families against Mandatory Minimums, the National Association of Evangelicals, CitizenLink of Focus on the Family, members of the Congressional Black Caucus, and Asa Hutchinson, former head of the Drug Enforcement Administration.

    The original policy mandated a 10-year minimum sentence for a drug dealer caught with only a candy-bar-size amount of crack. Yet dealers selling powder cocaine had to fill an entire briefcase in order to receive the same 10-year sentence.

    Enacted in 1986, the disparity was largely based on the understanding that crack cocaine was more dangerous than powder cocaine because it was instantly addictive and provoked violent behavior. Since then, copious amounts of scientific evidence and U.S. Sentencing Commission analysis have shown these differences to be exaggerated or even false. Sadly, the disparity led to a hugely disproportionate number of black Americans being sentenced under this mandatory minimum law.

  • July 30, 2010

    The House of Representatives this week joined the Senate in passing legislation that would significantly narrow the gap between statutorily mandated sentences for crack cocaine and powder cocaine, "a step toward ending what legal experts say have been unfairly harsh punishments imposed mainly on blacks," The New York Times reports.

    The Fair Sentencing Act of 2010 now awaits signature from President Barack Obama, who said during the 2008 presidential campaign that the sentencing disparity "disproportionately filled our prisons with young black and Latino drug users."

    Under current law, the amount of powder cocaine triggering a mandatory minimum sentence is 100 times as much as the amount of crack cocaine triggering sentencing. The bill was passed in 1986 after a spate of drug-related killings.

    The new law would decrease the ratio to 18-1 and eliminate the five-year mandatory minimum sentence for simple possession of crack cocaine.

    "Never before have advocates for crack cocaine sentencing reform been so close to the finish line," writes Laura W. Murphy, director of ACLU's Washington Legislative Office, recalling when she convened the first conference on the crack/powder disparity 17 years ago.

    "The ACLU has remained steadfast to eliminating the disparity completely," Murphy writes in The Huffington Post. "However, now that the Senate has acted to pass a reform bill that falls short of our ideal, we must confront the reality that it will nonetheless make important improvements in the lives of many people who would have otherwise been locked away for years, or decades, on end."

    A statement from the Lawyers' Committee for Civil Rights Under Law also acknowledged that the bill is "not optimal" but applauded the bill's passage as a development that "should not go unnoted."

    "The fight is not over," said Lawyers' Committee Public Policy Director Tanya Clay House.

    For more on reforming disparities in criminal justice sentencing see video of an ACSblog interview with the Open Society Institute's Senior Policy Analyst Nkechi Taifa. Her interview followed and ACS event on reforming the criminal justice system, including its disparaties in sentencing. Video of the entire panel discussion, "Reorienting Federal Criminal Justice Policy -- An Opportunity for a More Integrative Approach?," is available here.

  • May 12, 2010

    Defendants are increasingly receiving reduced sentences for Post-Traumatic Stress Syndrome suffered in the wake of military service in combat zones. Convicted marijuana dealer Kimball Manning thought the trend so promising that he allegedly fabricated a military career to take advantage of it.

    The Wall Street Journal reports:

    Manning's lie was caught by his probation officer, who was preparing a report about the defendant that would be given to the judge before sentencing. The officer found calendar overlaps between purported military records provided by Manning and those from a small Vermont college, which show he was a student at the time, the Free Press reported.

    On Monday a U.S. military records official - and former Marine - testified at the Burlington court that he could find no evidence Manning served in the Marines.

    According to the Burlington Free Press, reporting from Vermont:

    At first glance, Manning's typewritten discharge papers appeared convincing, Shattuck said, but they contained close to a dozen errors that "just didn't add up." Among them:

    • Manning's release from the Corps is dated 1971, but the form was printed and issued on Navy stationery in 1972.

    • Entries include nonexistent awards and pay-grades.

  • May 4, 2010
    Guest Post

    By Marc Mauer, Executive Director, The Sentencing Project & Author, Race to Incarcerate

    In the midst of often rancorous debate on Capitol Hill, growing bipartisanship is developing in an area that many would have thought extremely unlikely: criminal justice reform. Just last week legislation to establish a national commission to examine the criminal justice system was introduced in the House by the unlikely mix of liberal Democrats William Delahunt and Marcia Fudge along with conservative Republicans Darrell Issa and Tom Rooney. The legislation mirrors a bipartisan bill, introduced by Sen. Jim Webb (D-VA), passed by the Senate Judiciary Committee earlier this year. At the time of the bill's introduction, Sen. Webb wrote, "With so many of our citizens in prison compared to the rest of the world, there are only two possibilities. Either we are home to the most evil people on earth or we are doing something different - and vastly counterproductive. Obviously, the answer is the latter."

    The criminal justice commission bill comes at a time when significant reform to federal sentencing policy may become a reality for the first time since the enactment of a slew of mandatory sentencing policies in the 1980s. Legislation to reform the longstanding and notorious differential in sentencing between crack and powder cocaine was passed by unanimous consent in the Senate in March and is likely to gain similar support in the House. Under current law, sale of 500 grams of powder cocaine results in a mandatory five-year prison term. But for crack cocaine, possessing as little as five grams carries the same five-year penalty. This 100:1 quantity disparity ratio has been broadly criticized for leading to large-scale prosecutions of low-level crack cocaine offenders, 80 percent of whom have been African American.

  • May 3, 2010
    Guest Post

    By David Carroll, Director of Research, National Legal Aid & Defender Association (NLADA)
    In 2007, the State of South Carolina took a major step forward in assuring the promise of Gideon v. Wainwright. Legislation that year created a circuit public defender system. The 16 circuit public defenders are appointed by the statewide South Carolina Commission on Indigent Defense - a 13-member commission appointed by diverse authorities - upon nomination of local attorneys representing counties in the circuit. A central Office of Indigent Defense under the Commission establishes indigency guidelines and attorney performance guidelines, provides training, and distributes state funding. Counties share the burden of funding the right to counsel in the circuits.

    A recent Charleston Post-Courier article shows that standards and structure can only go so far without appropriate funding. One public defender from Charleston is highlighted for his Herculean effort, including representing 44 clients in a single day (which comes down to a little under 11 minutes per client). Annually, the attorney is estimated to handle more than 930 misdemeanor clients - 133 percent above national standards for misdemeanor attorneys - a number exacerbated by having to cover 12 different courts throughout the county. South Carolina ranks 43rd of the 50 states in per capita funding between Idaho and Michigan - two states National Legal Aid & Defender Association (NLADA) has evaluated and deemed to be failing in their duty to meet the constitutional right to counsel.

    Although misdemeanor convictions or sentences may not generally result in lengthy incarceration, the life consequences of convictions can be severe, including job loss, family breakup, substance abuse, and deportation - all factors that tend to foster recidivism or require further court action at tax payer expense. And, as the article indicates, many South Carolina counties do not even have this level of services for misdemeanor clients in the county and municipal lower courts.

    States should consider reducing crowded dockets by looking to alternative forms of disposition for those accused of non-serious misdemeanors. There are benefits to reevaluating the criminal justice system's treatment of misdemeanors that carry possible jail time, but for which incarceration is rarely sought or imposed. If these non-serious offenses were treated as civil infractions or made subject to reduced penalties that do not include incarceration, the impact on crowded court dockets would be significant.