The debate about the sentencing disparity between crack and powder cocaine continues.
The Obama DOJ has gone before the Senate Judiciary Subcommittee on Crime and Drugs to request that Congress "completely eliminate the disparity in prison sentences between crack cocaine and powdered cocaine."
While they made no mention of how they wished Congress to accomplish this, the mention of a complete elimination of any difference in sentences suggests that the administration wants to alter both the mandatory minimum sentences and the sentencing guidelines for crack offenses. President Obama made changes in the crack-powder disparity part of his presidential campaign.
The sentencing guidelines for crack offenses currently employ a ratio that ranges from between 25 to 1 and 80 to 1, depending on the defendant's offense level. The Supreme Court, in Kimbrough v. US (2007), has also declared that the Guidelines for cocaine sentencing are advisory, meaning that judges do not have to follow them so long as the eventual sentence imposed is "reasonable."
The minimum sentences contained in 21 U.S.C. § 841 are mandatory, however, and use a 100 to 1 sentencing ratio. In other words, a defendant convicted of selling five or more grams of crack is subject to the same five year minimum sentence as a defendant caught selling 500 grams of powder cocaine.
Many civil rights advocates have decried this differing treatment of different forms of the same drug as racially biased, since African-Americans make up 85 percent of those convicted of crack offenses.
Some commentators have also suggested that the sentencing disparity creates disincentives for prosecutors to pursue large-scale wholesalers dealing in powder cocaine when they could obtain greater sentences for street-level distributors of crack.
A growing number of prosecutors, defenders and judges have called for adjustments to the sentencing law, but so far their entreaties have not spurred any law through Congress.
The Obama administration appears to hope that adding its voice will change all that.