Another district judge adopts 1-to-1 crack/powder sentencing plan
In this post last month, I reported on the thoughtful opinion in US v. Gully, No. CR 08-3005-MWB (N.D. Iowa May 18, 2009), Judge Mark Bennett explaining why he adopted a 1:1 ratio for crack sentencing cases. Thanks to a helpful reader, I can now post another thoughtful district court opinion, this one from Judge Paul Friedman of the U.S. District Court for the District of Columbia, that also mebraces a 1-to-1 crack-to-powder ratio. The opinion in US v. Lewis, No. 04-0430 (D.D.C. June 9, 2009), can be downloaded below, and here is the key part of Judge Friedman’s explanation for his sentencing plans:
For all of these reasons, this Court disagrees, as a matter of policy, with both the amended 100-to-1 crack-to-powder ratio currently embodied in the Sentencing Guidelines and the 20-to-1 ratio the Sentencing Commission more recently endorsed for practical political reasons. The Court instead concludes that the appropriate ratio is 1-to-1. Thus, in the future, this Court will apply the 1-to-1 ratio in all crack cocaine cases and then will separately consider all aggravating factors applicable in any individual case, such as violence, injury, recidivism or possession or use of weapons.
Henceforth this Court will employ a three-step approach – or where mandatory minimum sentences are implicated, a four-step approach – to sentencing in crack cocaine cases. First, it will calculate the sentencing range under the existing Sentencing Guidelines (i.e., it will use the amended 100-to-1 ratio found in the Guidelines and then factor in any appropriate adjustments or departures contained within the Guidelines). Second, it will calculate an alternative sentencing range using a 1-to-1 ratio (by using the powder cocaine Guidelines) and then factor in any appropriate adjustments or departures contained within the Guidelines. Third, it will consider whether it is appropriate to vary from the alternative 1-to-1 sentencing range based on the Court’s consideration of the relevant factors set forth in 18 U.S.C. § 3553(a) as they apply to the individual defendant and the particular case – including, but of course not limited to, any aggravating factors such as violence, injury, recidivism or possession or use of weapons. See United States v. Gully, 2009 WL 1370898 at *9. While theoretically this could lead to a downward variance, in view of the Court’s approach it would more likely lead to an upward variance in an individual case to take account of the defendant’s history of violence, the use of violence in a particular case, injury to others, the presence or use of firearms or other weapons, or the defendant’s recidivism. As a fourth and final step, the Court will of course implement any statutory mandatory minimums applicable to the case – even though the statutory mandatory minimums themselves embody the now-discredited 100-to-1 ratio between crack and powder cocaine offenses.
UPDATE: I now see that The BLT has this coverage of the Lewis opinon