An initial reaction to the USSC crack report

Fellow sentencing guru Mark Osler sent via e-mail this first-cut reaction to the Sentencing Commission new cocaine report (basics here):

A federal defender, one of the smartest people I know in sentencing, called me this afternoon to talk about the proposed crack guideline amendments.  He got my voice mail, and left this provocative message: “What’s going on?! These things are all over the place!”

He’s right, and the Sentencing Commission’s report on “Cocaine and Federal Sentencing Policy” (released about the same time as that call) does not do much to clear things up.  The USSC’s report is chock-full of great data and analysis.  However, when the rubber hits the road, the Commission makes just three recommendations to Congress, on page 8: First, increase the amount needed to trigger mandatory minimums for crack; second, repeal the mandatory minimum for simple possession; and third, don’t solve the problem by lowering the thresholds for powder cocaine which trigger mandatory minimums.

I’m all for these recommendations.  However, they leave open a key question: If we leave behind the 100-to-1 ratio, what will take its place?  This crucial question is more complex than it may at first appear — what is at issue is not just what other ratio we should employ, but whether we should tie crack sentencing to powder cocaine at all. 

Which brings us back to the call I received from my friend the public defender.  He was very happy that the proposed guidelines lowered the crack ranges, but noticed that they were no longer tied to any ratio at all relative to powder cocaine.  For example, at level 28 of those proposed guidelines, the ratio is 17.5-to-1, at level 26 it is 25-to-1, and at level 24 it shoots up to 80-to-1.  Obviously, the sentencing commission is comfortable not just with adjusting the ratio, but with throwing out the idea of a ratio altogether.  In keeping with this new outlook, the key recommendations of the new report to Congress do not suggest 20-to-1 or any other ratio to direct Congressional reforms, unlike the 2002 report.

It is a brave new world, if we might be free not only from the 100-to-1 ratio, but the idea of ratios controlling the way we think about crack sentencing.