Recently legislation has been enacted that reduces the unfair federal punishment differences between crack and powder cocaine offenses. In the mid 1980's Congress enacted reactionary laws to address the growing crack cocaine epidemic. Lawmakers relied on misinformation that crack cocaine was more dangerous than the powder form of the drug that was used to "cook" crack. Despite the fact that scientifically there is no difference between crack and powder cocaine, Congress passed laws that treated the two very differently.
In federal court, when judges consider sentences for drug offenses, the Court is required to consider a defendant's sentencing guidelines. The guidelines suggest a range of punishment based on the defendant's criminal history and the amount of drugs involved in the offense. When determining the culpable drug amount, federal judges can consider drugs seized by police, as well as drugs a witness alleges the defendant has distributed.
Prior to 2005, the sentences suggested by the guidelines were mandatory. Now, the guidelines provide an advisory sentencing range. However, even though the guidelines are advisory, there are still minimum sentences that the judge cannot ignore without a "cooperation motion" by the government.
The statutory penalties for crack and powder were very different. Defendants caught with crack were punished one hundred times greater than those with powered cocaine. As an example, a person charged with the
intent to distribute 5 kilograms of powered cocaine would face a ten-year mandatory minimum sentence. A person would only need to possess 50 grams of crack to face the same ten-year mandatory minimum sentence.
In August 2010, President Obama signed a bill decreasing the ratio from 100:1 to 18:1. Now, for example, a person must possess with the intent to distribute 280 grams of crack (instead of the 5 grams) to face the mandatory minimum sentence of ten years.
It is clear that all disparities between crack and powder should be eliminated. Additionally, mandatory minimum penalties unfairly require judges to impose ridiculously lengthy sentences. Because federal law still harshly punishes defendants, it more important in those case to obtain the best attorney possible. An experienced federal lawyer can prepare a sentencing memorandum that instructs a judge when to impose a "variance" or "downward departure" from the suggested guideline range. Also in special circumstances, a savvy attorney can use the federal "safety valve" provision to request a sentence below the required mandatory minimum.