Sentencing Leniency—Crack Cocaine

Under the US Sentencing Guidelines, all other things being equal, a person possessing 5 grams of crack cocaine receives the same sentence as a person selling 500 grams of powder cocaine.^[1] In other words, a person possessing roughly 1/100 of a pound of crack receives the same base offense level (26) as a person possessing roughly a pound of powder cocaine.

This discrepancy has long been extremely controversial, not the least because there is little reason to view crack cocaine as 100 times more dangerous than powder cocaine.^[2] The discrepancy has led to much debate about racial disparity because most crack cocaine defendants are minorities, while most powder cocaine defendants tend to be white and more affluent.^[3] In the wake of Booker however, the Guidelines are advisory, not mandatory, and as a result, some evidence suggests that courts are becoming more lenient in applying sentences for crack cocaine offenses.^[4]

According to the nonpartisan Sentencing Project, judges are still applying stiff prison sentences, though they seem to be deviating from the guidelines, and they tend to consider multiple factors in the sentencing process.^[5] The Sentencing Project looked at 24 cases for which there were written opinions that “specifically implicate Booker.”^[6] In general Federal judges are considering the following factors when they sentence individuals in crack cocaine cases: the relative weight of the Guidelines, the goals of sentencing, individual circumstances of the offense and the defendant, and the Sentencing Commission’s own recommendations.^[7]

Nonetheless, crack cocaine defendants still tend to receive sentences of an average of 11 years in prison, though the range of sentences is quite broad.^[8] For example, in one case, U.S. v. Moreland, the Guidelines range suggested imprisonment for 30 years to life; the court sentenced the defendant to 10 years.^[9] In another case, U.S. v. Beamon the Guidelines suggested a sentencing range or 108-135 months in prison; the court sentenced the defendant to 51 months in prison based on substantial assistance to the government in its investigation, as well as the defendant’s community service and importance to the family.^[10] In another case, US v. Hubbard, the defendant faced 30 years to life in prison under the Guidelines, but the court felt that it was not proven to the jury that the substance in question was crack and sentenced the defendant to 262 months in prison based on the range for powder cocaine.^[11]

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[1] Gary Fields, Judges Show More Leniency on Crack Cocaine, Wall St. J., Jan. 12, 2006 (subscription required); Mark Sherman, Some Crack Cocaine Prison Terms Shorter Since Ruling on Sentencing Guidelines, Study Says, Associated Press (via San Diego Union-Tribune), Jan. 11, 2006. See also U.S. Sentencing Guidelines Manual § 2D1.1(c)(7). Note that the term “cocaine base” found in the Guidelines, for the purpose of the Guidelines, means “crack” cocaine. See U.S. Sentencing Guidelines Manual § 2D1.1, note (D).
[2] Fields, supra note 1.
[3] Id.
[4] Id.
[5] Ryan S. King, et al., Sentencing with Discretion: Crack Cocaine Sentencing After Booker 2, Sentencing Project, Jan. 2006. (PDF)
[6] Id. at 1.
[7] Id. at 2-3.
[8] Id. at 2, 4-5.
[9] Id. at 4.
[10] Id.
[11] Id.