The judge must choose a sentence from within the guideline range unless the court identifies an aggravating or mitigating circumstance that was not adequately considered by the Sentencing Commission. In mandatory minimum drug cases, judges can depart only upon motion from the government stating that a defendant has provided substantial assistance in the investigation or prosecution of another person. All guideline drug sentences are indirectly affected by the mandatory minimums. The base offense levels are set at guideline ranges slightly higher than the mandatory minimum levels to permit some downward adjustment for defendants who plead guilty or otherwise cooperate with authorities. Most of the specific offense characteristics and general adjustments increase the sentence length, as do all of the adjustments for criminal history. The result is that most drug defendants in federal court receive guideline sentences higher than the applicable statutory mandatory minimum penalty. In 79% of the 1993 crack cases and 71% of the powder cases, the minimum of the guideline range was higher than the applicable statutory mandatory minimum.

An exception to the mandatory minimum drug penalties was created by Congress in 1994 for certain first-time, non-violent, low-level drug offenders.

This exception allows qualified defendants to receive the full benefit of any mitigating guideline adjustments that they would otherwise be precluded from due to the mandatory minimum penalties. Only defendants whose guideline sentence is lower than the mandatory minimum level or who qualify for a downward departure actually benefit from the provision. In the first two months of its implementation, 27 powder cocaine and 13 crack defendants benefited from the provision. This provision became effective September 23, 1994.

As of February 3, 1995, the Sentencing Commission had received and entered into its database 96 cases in which the provision had clearly been applied.

Demographic Profile of Federal Cocaine Offenders

The demographic profile of cocaine offenders must be further examined to analyze any disparity in sentencing. Among crack cocaine cases, only 8.1% were non-U.S. citizens. This contrasts with the higher proportion of aliens for other drugs (powder cocaine 29.7%, heroin 63.0%, marijuana 31.8%, and methamphetamine 9.9%). Within a drug organization, alien status may be associated with the role of mule or courier and the crossing of a U.S. border. Furthermore, most federal drug defendants are male (89.2% of traffickers, 81.4% of possessors), regardless of the type of drug involved.

However, research indicates that crack cocaine trafficking defendants are generally younger, with nearly half (46.9%) less than 26 years old. Crack cocaine defendants are the only drug group with an average age less than 30 years. Approximately half (47.9%) of all drug defendants have not graduated from high school. The percentage of defendants not completing high school is highest among marijuana defendants (53.0%). Crack cocaine trafficking defendants have the lowest rates of college attendance or graduation.

Race is also an important factor that warrants close examination. In 1993, Whites account for 30.8% of all convicted federal drug offenders, Blacks 33.9%, and Hispanics 33.8%. Sentencing patterns for some drugs show high concentrations of a particular racial or ethnic group. Most strikingly, crack cocaine offenders are 88.3% Black. Conversely, methamphetamine offenders are 84.2% White. Powder cocaine cases involve sizable proportions of Whites (32.0%), Blacks (27.4%), and Hispanics (39.3%).

Among defendants convicted of simple possession, 58% of powder defendants were White, 26.7% were Black, and 15% were Hispanic. Among crack defendants, 10.3% were White, 84.5% were Black, and 5.2% were Hispanic.

Findings in a recent Bureau of Justice Statistics study, conducted by Douglas McDonald and Kenneth Carlson, suggest that between 1986 and 1990 both the rate and the average length of imprisonment for federal offenders increased for Blacks in comparison to Whites. The researchers concluded that this increase, based on legally relevant offense characteristics, was caused largely by the mandatory minimum penalties for drug offenses and more specifically by the 100-to-1 quantity ratio of powder cocaine to crack cocaine.

Operational Assumptions

The...

The researchers examined a number of offense- and offender-related characteristics and found that White, Black, and Hispanic crack cocaine traffickers differed in drug amounts, prior record, weapon involvement, trial rates, and charge reductions resulting from pleas. They conclude that within the category of crack cocaine trafficking, differences accounted for all the observed variation in imprisonment sentences.
The study argues that if legislation and guidelines were changed so that crack and powdered cocaine traffickers were sentenced identically for the same weight of cocaine, the Black/White difference in sentences for cocaine trafficking would not only evaporate but would slightly reverse.

From the available research, it appears that the 100-to-1 crack cocaine to powder cocaine quantity ratio is a primary cause of the growing disparity between sentences for Black and White federal defendants. Research has shown that the best way to identify offenders who are most likely to commit new offenses is to focus on their prior criminal record. The sentencing guidelines increase a defendant's sentence based on the seriousness of his/her criminal history to ensure that persons who are a continuing threat to the community are sufficiently punished.

Offenders with zero criminal history points were still successful three years after release 92% of the time. Those with over ten points succeeded only 23% of the time. Among Category I offenders, half the failures were for drug sale or possession, 14% were for property crimes, 12% were for driving while intoxicated, and 6% were for simple assault. For the amount of federal defendants that do not have serious prior criminal records, 62% fall have either no prior record, a single minor offense, or very old convictions. Examination by specific drug type, however, indicates that crack cocaine defendants as a group have more serious records of prior convictions than defendants convicted of other drug offenses. Crack defendants are least likely to have the lowest criminal history score (44.8%) and most likely to score in the career offender range (6.3%).

Research indicates that crack cocaine defendants also are more likely to have a recent criminal record, with 33.7% under a pre-existing criminal justice sentence at the time of their most recent federal offense. Additionally, crack cocaine defendants are most likely (4.2% compared to 1.7% for powder cocaine defendants) to have committed the instant offense within two years of release from imprisonment for a prior offense. Finally, 14.5% of crack cocaine defendants (compared to 6.6% of the powder cocaine defendants) are both under a pre-existing sentence when they commit their offense and commit the new offense within two years of a release for a prior sentence.

Another element of dangerousness includes the involvement of weapons in drug trafficking offenses. Under the guidelines, drug trafficking defendants receive a sentence enhancement if they or someone with them possess a weapon in connection with the offense. The weapon need not be present during the commission of the crime so long as it is in reasonable proximity to the place and time that conduct relevant to the drug trafficking occurred. Some defendants are convicted under 18 U.S.C. 924- which mandates a five-year mandatory consecutive sentence for use of a weapon in relation to a drug offense. Most drug defendants (83.5%) do not receive a weapon adjustment. The guideline weapon enhancement is applied to 13.9% of crack defendants, 13.1% of methamphetamine defendants, and 8.8% of powder offenders.

The geographic scope of activity for crack cocaine cases is largely limited on the local level (76.8%), at a rate nearly twice that of powder cocaine, the drug with the next highest rate (39.0%). For other drugs, approximately 50% or more of defendants were involved in interstate or international drug trafficking activities (powder cocaine 49.4%, heroin 62.8%, marijuana 64.7%). Among cocaine offenders generally, relatively few are classified as high level organizational function roles, 9.2% and 5.5% for powder and crack, respectively. Reflecting international and interstate trafficking patterns, 21.6% of the powder cocaine cases involve mules and couriers. The highest percentage of powder cocaine defendants are mid-level (38.2%), followed by street-level (31.2%). The majority of crack defendants, however, are street-level (59.6%).

Drug quantities specified in the mandatory minimum statutes are incorporated into the system of guidelines offense levels, which are in turn linked to months of imprisonment. First offenders at level 14 are subject to 15-21 months of imprisonment based solely on drug quantity. Under the mandatory minimums and the guidelines, crack possessors are treated the same as crack distributors if they have amounts above the statutory threshold,…