Post-Booker Crack and Cocaine Convictions1

Post-Booker Sentencing GuidelinesChristopher BatesMay 11, 2006Legal Studies Senior Seminar Prof. Marcia Miller 1

When two crack dealers bought about 255 grams of power cocaine from their supplier to turn into crack, they were disappointed when the cocaine yielded only 88grams of crack, instead of the normal yield of about 200 grams of crack. The supplier agreed to replace the 255 grams of powder cocaine free of charge, while returning to thelocation, the crack dealers were arrested with the 88 grams of crack on themselves; thesupplier was also arrested with possession of 255 grams of powder cocaine. Ultimately,the crack dealers received a sentencing guideline range of 121 to 151 months with astatutory minimum of ten years, whereas the supplier’s guideline range was just 33 to 41months.

1

This perversion of justice is a result of one of the most hotly debated topics infederal sentencing: the sentencing structure for crack and powder cocaine. As illustratedin the above story the penalty structure for crack cocaine is much harsher than that of powder cocaine.A conviction for the sale of 50 grams of crack is a ten-year mandatory sentence.Whereas to reach the same mandatory ten-year sentence, a cocaine dealer would have to be convicted of selling 5000 grams of powder cocaine. There is hope that these unfair sentences will be a thing of the past with the recent decision of

United States v. Booker .

2

This landmark case drastically changed the United States Sentencing Guidelines bychanging them from mandatory to recommended. With the unjust sentences no longer mandatory, judges can, and should, downward depart from the recommendations of thesentencing guidelines in crack and cocaine convictions. The judges should heed therecommendations of the sentencing guideline committee over the past ten years andreduce the ratio in crack and powder cocaine sentencing to 20:1.

1

William Spade, Jr.,

Beyond the 100:1 Ratio: Towards a Rational Cocaine Sentencing Policy

, 38 Ariz. L.Rev. 1233, 1273 (Winter 1996).

2

U.S. v. Booker

, 543 U.S. 220, 125 S.Ct. 738 (2005).

2

This paper will first address the relative weight judges should give to thesentencing guideline recommendation when dealing with these types of cases. That this paper will argue judges have the right to downward depart from the recommendedguidelines if the punishment is greater than necessary to meet the goals of sentencing.This paper will finally argue that judges can consider other factors and circumstances of defendants when sentencing.Sentencing in the United States has had many drastic changes within the lasttwenty years. Before the current Sentencing Guidelines were established, sentencing inthe United States was calculated by a system of indeterminate sentencing based on therehabilitation model.

3

Under the rehabilitation model, the courts determined themaximum term of imprisonment for each defendant. The Parole Commission released the prisoners, in most cases, earlier than the maximum term for good behavior or finding the prisoners were rehabilitated.

4

This system of indeterminate sentencing created very largedisparities in federal sentencing because the courts only limit was the applicable statutorymaximum. The Parole Commission’s discretion to release prisoners was only limited only by the requirement that prisoners serve a certain amount of their sentence. Thus,offenders convicted of similar crimes were getting vastly different sentences.

5

The Sentencing Reform Act of 1984 (SRA) replaced the indeterminate system.The SRA eliminated the broad judicial discretion of federal courts and dismantled therelease discretion of the Parole Commission.

6

The SRA was created to limit judicialdiscretion and create uniformity and individuality in all federal sentencing. The most

3

Jesseca R. F. Grassley,

Federal Cocaine Sentencing Policy Following the 1995 Cocaine Report: Issues of Fairness and Just Punishment

, 21 Hamline L. Rev. 347-351 (1998).

4

Grassley,

supra

n. 3, at 347-351.

5

Grassley,