The opinion of the court was delivered by: Michael J. Reagan United States District Judge
I. The History and Underlying Assumptions of the Sentencing Disparity for Crack and Powder Cocaine Offenses
As is discussed more fully below, the sentencing disparity at issue here originated in a 1986 statute, which the United States Supreme Court confronted two decades later in Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558 (2007). Kimbrough dramatically altered the way in which federal district courts sentence defendants for "crack" cocaine and powder cocaine offenses. Justice Ginsburg's opinion thoroughly delineates the history of the crack/powder disparity. A summary of that history furnishes the starting point for this Court's analysis.
Crack cocaine and powder cocaine are two forms of the same drug. Powder cocaine (cocaine hydrochloride) most often is inhaled through the nose. It also can be mixed with water and injected. Kimbrough, 128 S.Ct. at 566, citing United States Sentencing Commission, Special Report to Congress: Cocaine and Federal Sentencing Policy at 5, 12 (Feb. 1995)("1995 Report"). Crack cocaine (one form of cocaine base) generally is sold and used in single-dose rocks, which are smoked. Id. Despite being chemically similar, crack and powder cocaine have been treated quite differently for sentencing purposes. Id., citing United States Sentencing Commission, Report to Congress: Cocaine and Federal Sentencing Policy iv (May 2002)("2002 Report").
The disparity in sentences for crack offenses and powder cocaine offenses traces back to the Anti-Drug Abuse Act of 1986, 100 Stat. 3207 ("1986 Act"). That Act created a two-tiered system of mandatory minimum sentences for drug manufacturing and distribution crimes. The 1986 Act used the weight of the drugs to distinguish between "major" dealers and "serious" dealers. Ten-year minimum terms applied to "major" dealers, and five-year minimum terms applied to "serious" dealers.
In the mid-1980s, crack (an inexpensive and relatively new drug) had become a hot topic and a matter of increasing public concern. Congress believed that crack cocaine was more dangerous to users than powder cocaine, that crack cocaine was extremely addictive (more so than powder cocaine), and that crack users and dealers were more likely to be violent than users and dealers of other drugs.
Based on these assumptions, the 1986 Act adopted a 100-to-1 ratio that treated every gram of crack cocaine as the equivalent of 100 grams of powder cocaine. The 1986 Act imposed:
" a 5-year mandatory minimum sentence for any defendant accountable for 5 grams of crack cocaine OR 500 grams of powder cocaine; and " a 10-year mandatory minimum sentence for any defendant accountable for 50 grams of crack cocaine OR 5,000 grams of powder cocaine.*fn1
In the Sentencing Reform Act of 1984, 18 U.S.C. § 3551, et seq., Congress gave the United States Sentencing Commission the task of promulgating sentencing guidelines. The United States Sentencing Guidelines took effect in November 1987. The Sentencing Commission formulated the Guidelines using an empirical approach based on data about past sentencing practices. Kimbrough,128 S.Ct. at 567. But the Commission did not use this empirical approach to develop the guideline sentences for drug-trafficking offenses, instead opting for the weight-based scheme of the 1986 Act. Specifically as to sentences for crack cocaine and powder cocaine, the Commission used a 100-to-1 ratio. Id., citing 1995 Report at 1.
As the years passed and additional research was conducted, the Sentencing Commission concluded that the 100-to-1 ratio was not warranted and in fact failed to meet the sentencing objectives of the Sentencing Reform Act and the 1986 Act. Kimbrough at 568, quoting 2002 Report at 91. In Kimbrough, the Supreme Court summarized the three key problems with the crack/powder disparity identified by the Sentencing Commission in its series of reports (including the two reports cited above and the United States Sentencing Commission, Report to Congress: Cocaine and Federal Sentencing Policy 8 (May 2007)("2007 Report").
First, the Commission acknowledged that the 100-to-1 ratio was premised on outdated and unfounded assumptions about the relative harmfulness of the two drugs and the relative prevalence of harmful conduct associated with the drugs. For instance, the Commission found that (a) crack is associated with far less drug-trafficking violence than previously assumed, and (b) the widespread epidemic of crack cocaine use by young Americans had not occurred.
Second, the Commission found the disparity inconsistent with the goal of punishing major traffickers more severely than low-level dealers. In fact, the 100-to-1 ratio led to the anomalous result that "retail crack dealers get longer sentences than the wholesale drug distributors who supply them the powder cocaine from which their crack is produced." Kimbrough, 128 S.Ct. at 568.
Third, the Commission declared that the sentencing disparity fostered lack of confidence in the criminal justice system due to a widely-held perception that it "promotes unwarranted disparity based on race." Id. In Kimbrough, 128 S.Ct. at 568, the Court remarked that roughly 85% of defendants convicted of crack offenses in federal court are African-American, so the severe sentences resulting from the 100-to-1 ratio fall primarily on African-American offenders.
The Commission did not advocate identical treatment for crack and powder cocaine but found that the 100-to-1 ratio significantly overstated the differences between the two forms of cocaine and should be substantially reduced. Without waiting for Congress to take action, the Sentencing Commission amended the Sentencing Guidelines in 2007 as a "partial remedy" to the problem resulting from this disparity. That Amendment, effective November 1, 2007, reduced the base offense level associated with each quantity of crack by two levels. Kimbrough, 128 S.Ct. at 569. After the 2007 Amendment, the Guidelines advanced a crack/powder ratio varying (at different offense levels) between 25 to 1 and 80 to 1. Id. at 571, citing Sentencing Guidelines for United States Courts, 72 Fed. Reg. 28571-28572 (2007).
In Kimbrough, the Court emphasized that the crack cocaine Guidelines did not exemplify the Commission's "exercise of its characteristic institutional role," because in formulating the Guideline ranges for crack offenses, the Commission did not properly consider "empirical data and national experience." Kimbrough, 128 S.Ct. at 575. Therefore, the Supreme Court held that a district court, in sentencing a particular defendant, could properly conclude that the crack/powder disparity yields a sentence greater than necessary to achieve § 3553(a)'s purposes. Id. This holding gave district courts the freedom to deviate from the Sentencing Guidelines based on the sentencing judge's disagreement with the 100-to-1 ratio.
II. This Court's Authority to Reject the 100-to-1 Ratio
As explained above, prior to Kimbrough, sentencing judges could not impose a sentence based on their disagreement with the crack/powder cocaine disparity.
Commenting on pre-Kimbrough precedent in the Seventh Circuit, Judge Posner pointed out that a district judge could "rail against the 100:1 ratio, but that would have been spitting against the wind, since we had held that the ratio was not to be questioned by sentencing ...