What is the Sentencing Commission fiddling while the crack guidelines burn?

Over the summer, the US Sentencing Commission indicated in this statement of priorities that it was working on cocaine sentencing policy.  But, as detailed here, in its 88-page discussion of new proposed amendments, the USSC does not address the crack guidelines (and also, stunningly, fails to even mention the Booker ruling).   Especially given that some (many? most?) federal judges, as detailed in the recent Sentencing Project report, are using their post-Booker discretion to deviate from the crack guidelines (which the USSC’s own 2002 report concludes are too severe and create unwarranted disparities), I am troubled by the USSC’s decision not to speak at all on crack sentencing in its new set of amendments.

Additional evidence something needs to be done about crack sentencing comes from a decision last week by District Judge John Bates in US v. Doe, No. 02-0406 (D.D.C. Jan. 26, 2006) (available here), in which the court decides it should not deviate from the crack guidelines despite recognizing that judges in the DC District and elsewhere have done so.  In my view, Doe ultimately falls prey, like the First Circuit’s recent Pho decision (basics here, commentary here and here and here), to what Marc Miller has fittingly described as “Sentencing Equality Pathology“.  In Doe, Judge Bates thoughtfully explains his views, but like the First Circuit in Pho, Judge Bates fails to mention Congress’s clear command in 3553(a) that a court “impose a sentence sufficient, but not greater than necessary, to comply with the purposes” of punishment.  Like the Pho court, Judge Bates in Doe seems to the elevates his perceived intent of Congress over the plain textual commands of 18 U.S.C. § 3553(a).

Whatever one thinks of the merits of the Doe decision, it provides further evidence of the deepening post-Booker disparity in the application of the crack guidelines.  Of course, because the USSC is still yet to promulgate any statistics about sentencing in crack cases, we do not know how deep this disparity may run.  Ironically, if statistics showed that judges were deviating from the crack guidelines in most cases (which certainly seems plausible), the Doe decision to follow the guidelines would actually exacerbate disparity rather than minimize it.

Unless the USSC no longer stands by its “unanimous” and “firm” conclusions in its 2002 report that “various congressional objectives can be achieved more effectively by decreasing substantially the 100-to-1 drug quantity ratio,” I have a hard time understanding why the latest set of guideline amendments do not seek to implement the USSC’s proposed 20-to-1 ratio.  Some (many? most?) federal judges are already applying that ratio.  The USSC’s failure to seek to codify this improved ratio in the guidelines serves only to ensure additional post-Booker disparities in drug sentencing.  At the very least, the USSC ought to explain why it is not acting on the crack guidelines.  Silence simply breeds distrust and disrespect for the Commission’s (non)efforts (and also leads to obnoxiously critical blog posts like this one).