Your ABA

In Need of a Fix

James Felman.
Photo by Alex McKnight

The anti-drug abuse act that congress passed in 1986 reflected a widespread be­lief at the time that crack cocaine posed a greater threat than powder cocaine be­cause it could be instantly addictive and cause psychotic, often violent, behavior in users.

The law created a 100-to-1 differential in the amounts of powder and crack cocaine necessary to trigger the same man­datory prison sentences.

That means a conviction involving 5 grams of crack (10 to 50 doses on the street) receives the same mandatory five-year sentence as a conviction involving 500 grams of powder cocaine (2,500 to 5,000 street doses).

Since then, extensive research has shown the effect of crack cocaine to be more myth than fact, but the dispar­ity continues in sentences for con­victions involving crack and powder cocaine.

The ABA has been urging Congress to eliminate the disparity for more than a decade because it results in penalties that sweep too broadly, apply too frequently to lower-level offenders, overstate the seriousness of some offenses, and produce a significant racial disparity in sentencing. The association also is urging Congress to refocus federal drug enforcement policy toward major traffickers.


“It is imperative that Congress act quickly to correct the gross unfairness that has been the legacy of the 100-to-1 ratio,” said James E. Felman of Tampa, Fla., when he testified for the ABA on Feb. 13 before the Senate Judiciary Subcommittee on Crime and Drugs.

Felman, who co-chairs the Sentencing Committee in the ABA’s Criminal Justice Section, said there is growing consensus that the sentencing disparity is “unjustifiable and plainly unjust.”

Felman voiced ABA support for bipartisan bills in Congress that would rectify the disparity between crack and powder cocaine sentences without raising the severe penalties for powder offenses. The legislation would address aggravating factors in sentencing, such as weapons use, violence or injury to another person. The bills also would provide mitigating adjustments for people who play minor roles in drug crimes, and for those whose involvement was due to extenuating factors but who otherwise would be unlikely to commit such an offense.

The ABA supports provisions to repeal the mandatory minimum penalty for mere possession of crack, the only drug that triggers a mandatory minimum for a first offense of simple possession. The association also supports provisions calling for federal grants to state and local drug treatment programs for offenders while they are imprisoned or on supervised release, and for grants to help develop effective alternatives to incarceration for drug offenders.

The U.S. Sentencing Commission has been urging Congress to eliminate the 100-to-1 cocaine sentencing ratio since 1995.

The commission took an important first step toward addressing the issue recently by amending the federal sentencing guidelines to reduce advisory crack-offense penalties by two offense levels and to make those reductions retroactive, effective March 3.

The amendments could make more than 3,000 crack offenders eligible for release by the end of the year, although sentence reductions must be approved by a federal judge after offenders have completed their mandatory minimum sentences. More than 19,000 people now in prison on drug charges could be affected by the amendments over the next few decades.

This column is written by the ABA Governmental Affairs Office and discusses advocacy efforts by the ABA relating to issues being addressed by Congress and the executive branch of the federal government.

Web Extra

James Felman’s congressional testimony (PDF) on cocaine sentencing.

Rhonda McMillion is editor of Washington Letter, an ABA Governmental Affairs Office publication.

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