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THE FEDERAL 100:1 POWDER COCAINE/CRACK COCAINE RATIO AND THE RESULTING DISPARITY IN FEDERAL MANDATORY MINIMUM SENTENCING FOR COCAINE OFFENSES?

Recently, Tilem & Campbell filed an appeal challenging the constitutionality of the federal statutory mandatory minimum sentences applicable to crack cocaine offenses and the 100:1 powder cocaine vs. crack cocaine ratio. The issues raised in the appeal will be discussed in future blogs as will the United States Supreme Court’s recent decision in Kimbrough v United States, 128 S. Ct. 558 (2007).

However, one must have a basic understanding of the federal statutory mandatory minimum sentencing statutes and how they apply to both powder cocaine and crack cocaine to understand the arguments against them as well as the Kimbrough decision. Germane to this discussion is an understanding of the often discussed 100:1 powder cocaine/crack cocaine ratio. It is this ratio that has resulted in crack offenders spending decades in prison while powder cocaine offenders convicted of offenses involving the same weight often spend less than two years in prison.

Basically, for sentencing purposes in the federal system, the relevant statute (21 U.S.C 841) treats one gram of crack cocaine as equivalent to 100 grams of powder cocaine. For example, possession of just 5 grams of crack cocaine (about a thimble full) triggers a five year mandatory minimum sentence. However, it would take 500 grams of powder cocaine (1/2 kilo) to trigger the same mandatory minimum. (See 21 USC 841). Therefore, one who possesses what is clearly a personal use amount of crack cocaine (5 grams) faces the same sentence as a major dealer of powder cocaine.

Indeed, 500 grams of powder cocaine becomes 1000 grams (or more) after being “cut” for resale. One thousand grams of powder cocaine equals approximately 36 ounces of powder cocaine. Therefore, the hapless crack junkie caught with what is clearly a personal use amount of crack cocaine (5 grams) must be sentenced to the same mandatory 5 year minimum that a major powder cocaine supplier would face for an offense involving 100 times the quantity.

The lunacy of the mandatory minimum crack sentences is even more apparent when dealing with just 50 grams of crack cocaine; just under 2 ounces. Offenses involving fifty grams of crack cocaine trigger a mandatory minimum 10 year sentence. However, under the 100:1 ratio, it would take 5000 thousand grams of powder cocaine (5 kilos) to trigger the same 10 year mandatory minimum. (See 21 USC. § 841(b)(1)(A)(II) (triggering 10 year mandatory minimum for offenses involving 5 kilograms (5000 grams) of powder cocaine). Recall, 50 grams of crack is just under 2 ounces (56 grams would be 2 ounces). However, 5000 grams of powder cocaine is approximately 179 ounces. If cut for resale, that 5000 grams of powder cocaine could easily become 10,000 grams; or about 360 ounces. That is major supplier weight.

Because crack cocaine is more prevalent in minority communities, especially African-American communities, African-Americans and other minorities are facing decades in prison while their white counterparts who deal in powder cocaine (which is the same drug) often times face 2 years or less. This racial disparity in sentencing for offenses involving what is the same drug has been, and will continue to be, the basis of equal protection challenges to the ratio. This will be discussed in future blogs.

The above is just a brief summary of a very complex issue. I will be discussing this issue in great detail in coming blogs including a detailed discussion about Tilem & Campbell’s federal appellate challenges to the crack cocaine mandatory minimums. For further information regarding sentencing issues or other criminal matters, contact Tilem & Associates at 1-888-ANY-CRIME or visit us on the web at www.888AnyCrime.com.