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Nicole M. Austin-Hillery Before Senate Committee on the Judiciary

Testimony given before Subcommittee on Crime and Drugs strongly supports efforts to end disparities between crack and powder cocaine sentencing.

Published: April 29, 2009

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United States Senate
The Senate Commit­tee on the Judi­ciary
Subcom­mit­tee on Crime and Drugs

Testi­mony of Nicole M. Austin-Hillery[1]
Director and Coun­sel – Wash­ing­ton Office
The Bren­nan Center for Justice
At New York Univer­sity School of Law
Wednes­day, April 29, 2009

            Mr. Chair­man, the Bren­nan Center is greatly appre­ci­at­ive for your lead­er­ship in the effort to elim­in­ate the dispar­it­ies in federal law between crack and powder cocaine sentences. We thank you and members of the subcom­mit­tee for hold­ing this hear­ing in an effort to help end the over­arch­ing prob­lem of racial dispar­it­ies in the crim­inal justice system.

Intro­duc­tion

            The Bren­nan Center for Justice at New York Univer­sity School of Law was foun­ded in 1995 as a living trib­ute to the late Supreme Court Asso­ci­ate Justice, William J. Bren­nan, Jr.  The Center is a non-partisan public policy and law insti­tute that focuses on funda­mental issues of demo­cracy and justice.  The Justice Project at the Bren­nan Center works on issues of equal justice partic­u­larly as they relate to ensur­ing fair­ness in the crim­inal justice system.

            In 2007, the Bren­nan Center issued a report entitled Prosec­utorial Discre­tion and Racial Dispar­it­ies in Federal Senten­cing: Some Views of Former U.S. Attor­neys (the “racial dispar­it­ies report”).[2]  This report was the product of a conven­ing hosted by the Bren­nan Center and the National Insti­tute for Law and Equity (“NILE”), at  which 12 former United States Attor­neys discussed the “effects of racial dispar­it­ies in senten­cing on communit­ies devast­ated by mass, long-term incar­cer­a­tion and on public confid­ence in federal law enforce­ment.”[3]  In the report, we describe the impact that dispar­ate drug senten­cing laws have on communit­ies of color.  More poin­tedly, the report describes the role of prosec­utors in crim­inal senten­cing and exam­ines specific oppor­tun­it­ies and duties that prosec­utors have to promote equal justice. 

            As a result of our work on this report, and as part of our broader work to elim­in­ate racial dispar­it­ies in the crim­inal justice system, the Bren­nan Center strongly supports the effort to end dispar­it­ies between crack and powder cocaine sentences.   We know that elim­in­at­ing these senten­cing dispar­it­ies is the first step in address­ing the array of racial dispar­it­ies that exist in the crim­inal justice system.  We hope that our comments here will help to bring atten­tion not only to the need for senten­cing reform with respect to crack and powder cocaine but also to the need to exam­ine other areas of the crim­inal justice system where such dispar­it­ies exist. 

The Crack-Cocaine Senten­cing Dispar­it­ies are Racial Dispar­it­ies

            As the Preamble to the Bren­nan Center’s racial dispar­it­ies report artic­u­lates:

"[o]ur coun­try was foun­ded on the prin­ciple that all are created equal.  We are a nation of laws that promote liberty and justice for all without regard to race, ethnic origin, reli­gion, creed or gender.  We are mind­ful that our nation’s racial history has sorely tested those beliefs of equal­ity, liberty, and justice and that there should be no room for the vestiges of racial or ethnic discrim­in­a­tion in our crim­inal justice system.[4]

            The enact­ment of the Anti-Drug Abuse Act of 1986[5]  resul­ted in “mandat­ory penal­ties for crack cocaine offenses which were the harshest ever adop­ted for low-level drug offenses and estab­lished drastic­ally differ­ent penalty struc­tures for crack and powder cocaine.”[6] Federal law estab­lishes a 100 to1 differ­ence between sentences for the two categor­ies of crimes.[7] The mandat­ory senten­cing struc­ture created by this law-which remains in effect today-results in aver­age sentences for crack cocaine offenses that are 3 years longer than for offenses involving powder cocaine.[8]   The effect of these uneven punish­ments has resul­ted in extremely severe prison terms for very low-level crack cocaine offenses, which repres­ent more than 60% of federal crack defend­ants. (See Figure 2 from Senten­cing Project report).[9]

Crack v. Powder Cocaine Sentencing

The racial impact of the crack cocaine senten­cing laws is plain. The vast major­ity of low-level offend­ers most affected by these laws are African-Amer­ican.[10] “In 2006, 82% of those sentenced under federal crack cocaine laws were black and only 8.8% were white-even though more than two-thirds of people who use crack cocaine are white.”[11]   Research by the U.S. Senten­cing Commis­sion (“the Commis­sion”) found that “sentences appear to be harsher and more severe for racial minor­it­ies than others as a result of [these] laws.”[12]  In the year 2000, the Commis­sions data show[ed] that of all federal crack defend­ants, 84% were black.[13]

These numbers portray a start­ling differ­ence in the treat­ment that offend­ers of crack cocaine laws receive as contras­ted with offend­ers of powder cocaine laws. A close exam­in­a­tion of all cocaine offend­ers (includ­ing crack) shows that African Amer­ican drug defend­ants have a 20% greater chance of being sentenced to prison than white drug defend­ants.[14]  Stat­ist­ics compiled by the Depart­ment of Justice indic­ate that as a result of the senten­cing require­ments for crack cocaine offenses, African Amer­ic­ans serve virtu­ally as much time in prison for a drug offense as whites do for viol­ent offenses.[15]

            At this junc­ture in the fight to end senten­cing dispar­it­ies between crack and powder cocaine, the stat­ist­ical data has been thor­oughly and frequently discussed.  Many respec­ted experts have come before Congress in a series of legis­lat­ive sessions and recoun­ted the data, and the numbers are clear-crack cocaine offend­ers, who are dispro­por­tion­ately African Amer­ican, serve time in prison at a much higher rate and for much longer peri­ods of time than do powder cocaine offend­ers, most of whom are not African Amer­ican.[16] 

The stark real­ity of these numbers has impressed Senat­ors on both sides of the aisle.  In 2001, Senator, Jeff Sessions (R-AL) intro­duced the Drug Senten­cing Reform Act which would have raised the threshold posses­sion amount for a five year mandat­ory minimum in the case of crack offenses.[17]  During the 110th Congress, Senat­ors Orrin Hatch (R-UT) and Joseph Biden (D-DE) intro­duced bills that would either reduce or elim­in­ate the senten­cing dispar­ity between crack and powder cocaine.[18]  Addi­tion­ally, Repres­ent­at­ives Sheila Jack­son Lee (D-TX), Charles Rangel (D-NY) and Robert Scott (D-VA) intro­duced their own versions of bills seek­ing to end this dispar­ity.  It is clear that many members of Congress under­stand that “the uneven treat­ment [of these senten­cing laws] strikes at the heart of the justice system.”[19]

With this hear­ing today, the 111th Congress is primed to right this ongo­ing wrong.  The Pres­id­ent himself declared earlier this year that “the dispar­ity between senten­cing [for] crack and powder-based cocaine is wrong and should be completely elim­in­ated.”[20]  The 111th Congress has the best oppor­tun­ity to put an end to this uneven meting out of justice that has been pervas­ive in the crim­inal justice system for over 20 years.

Racial Dispar­it­ies in the Crim­inal Justice System Go Beyond the Crack-Powder Cocaine Issue

            Racial dispar­it­ies, so troub­ling in crack and powder cocaine senten­cing, impose an addi­tional cost in many other contexts within the crim­inal justice system. The Senten­cing Commis­sion has observed that, beyond the direct impact on indi­vidu­als, “[p]erceived improper racial dispar­ity fosters disrespect for and lack of confid­ence in the crim­inal justice system…”[21]  The current moment, in which our soci­ety is consid­er­ing elim­in­at­ing dispar­it­ies in crack and powder cocaine senten­cing, thus provides us with an import­ant oppor­tun­ity to step up our national efforts to elim­in­ate racial dispar­it­ies in all aspects of the crim­inal justice system.

            The prosec­utors who we called upon in produ­cing the Bren­nan Center’s report on racial dispar­it­ies in the crim­inal justice system developed a set of “Guid­ing Prin­ciples of Equal Justice” which they designed to serve as the found­a­tion for reform efforts focused on racial justice.  These guid­ing prin­ciples are the follow­ing:

  • 1) The pursuit of justice requires the fair applic­a­tion of the law to ensure public confid­ence and trust in the crim­inal justice system;
  • 2) Justice means observing the highest ethical stand­ards by ensur­ing that racial bias and stereo­typ­ing do not play a role in federal prosec­u­tions;
  • 3) Fair­ness and equal­ity demand that simil­arly situ­ated defend­ants be treated equally and that unwar­ran­ted racially dispar­ate impact be elim­in­ated; and
  • 4) Prosec­utorial decision-making should be well-reasoned and trans­par­ent.[22]

These prin­ciples were developed with the recog­ni­tion that racial dispar­it­ies in the crim­inal justice system, are at least in part, a product of decisions made by prosec­utors and other law enforce­ment offi­cials. The report there­fore builds from the premise that those who work in the front­lines of our crim­inal justice system are among the best posi­tioned to help end the racial dispar­it­ies in the crim­inal justice system.  In the report, the parti­cip­at­ing prosec­utors concluded that “conscious atten­tion to the role of race in prosec­utorial decision-making, as well as concer­ted efforts to monitor and improve the decision-making process, is essen­tial for mitig­at­ing unwar­ran­ted racial dispar­it­ies in the outcomes of federal crim­inal prosec­u­tions.”[23]

            In addi­tion to fixing crack-powder cocaine dispar­it­ies, new legis­la­tion to promote such “conscious atten­tion to the role of race” and to “monitor and improve the decision-making process” can serve as an essen­tial tool with which to respond to the prob­lem.  The Justice Integ­rity Act embod­ies this approach.  In the 110th Congress, then-Senator Biden (D-DE) intro­duced the Justice Integ­rity Act of 2008, a bill that would estab­lish pilot programs in 10 selec­ted U.S. Attor­ney districts, enabling an advis­ory group in each district to gather data with respect to racial and ethnic dispar­it­ies in prosec­u­tions.  The bill would also provide for analysis of that data to determ­ine the root causes of any such dispar­it­ies.  The legis­la­tion has been bi-camer­ally intro­duced in the 111th Congress by Senat­ors Benjamin Cardin (D-MD) and Arlen Specter (R-PA) and Repres­ent­at­ive James Cohen (D-TN). 

In addi­tion to the Justice Integ­rity Act, the follow­ing addi­tional initi­at­ives are also import­ant and currently, or soon to be, pending: the National Crim­inal Justice Act of 2009, S.714, sponsored by Senator James Webb (D-VA) and the End Racial Profil­ing Act, which will hope­fully be intro­duced during the first term of this legis­lat­ive session. We are confid­ent that the Justice Integ­rity Act, and similar legis­la­tion, will help our nation gain more insight into the addi­tional racial dispar­it­ies that exist in the crim­inal justice system.   

While we applaud the Commit­tee’s commit­ment to end the divis­ive dispar­it­ies that are inher­ent in federal cocaine senten­cing laws, we also recog­nize that there is more to do to make our system fair and strong and to renew our nations commit­ment to ensur­ing that race is not a factor in how indi­vidu­als are treated in our crim­inal justice system. The  time is ripe for Congress to take bold steps to reduce race-based crim­inal justice dispar­it­ies. We encour­age support for reforms that will help achieve this goal.


[1] Nicole M. Austin-Hillery is Director and Coun­sel of the Wash­ing­ton, D.C. Office of the Bren­nan Center for Justice at New York Univer­sity School of Law where she over­sees the Wash­ing­ton, D.C, oper­a­tions, advocacy efforts and issue focus.

[2] Federal Senten­cing Reporter, Vol. 19, No. 33, pp.192–201 (2007).

[3] Id. at 192.

[4] Id. at 198.

[5] Pub. L. 99–570, Oct. 27, 1986, 100 Stat. 3207.

[6] Federal Crack Cocaine Senten­cing, the Senten­cing Project, pp. 1–2,  Janu­ary, 2009.

[7]  The Drug Policy Alli­ance, Crack/Cocaine Senten­cing Dispar­ity (Nov. 2007) avail­able at http://www.drug­policy.org/drug­war/mandat­orymin/crack­powder.cfm.

[8] Federal Crack Cocaine Senten­cing, The Senten­cing Project, p. 2, Janu­ary, 2009.

 

[9] Federal Crack Cocaine Senten­cing, The Senten­cing Project, pp. 3,  Janu­ary, 2009 (citing U.S. Senten­cing Commis­sion, 2005 Drug Sample).

[10]See gener­ally, Where are All the Young Men and Women of Color, Melvin Delgado (Oct. 2001).         

[11] The Drug Policy Alli­ance, Crack/Cocaine Senten­cing Dispar­ity (Nov. 2007) (citing to U.S. Senten­cing Commis­sion, Special Report to Congress: Cocaine and Federal Senten­cing Policy (Wash­ing­ton, D.C.: U.S. Senten­cing Commis­sion, May 2007) avail­able at http://www.drug­policy.org/drug­war/mandat­orymin/crack­powder.cfm.

[12] The Drug Policy Alli­ance, Crack/Cocaine Senten­cing Dispar­ity (Nov. 2007) (citing to U.S. Senten­cing Commis­sion, Special Report to Congress: Cocaine and Federal Senten­cing Policy (Wash­ing­ton, D.C.: U.S. Senten­cing Commis­sion, April 1997 at p.8) avail­able at http://www.drug­policy.org/drug­war/mandat­orymin/crack­powder.cfm.

 

[13] Race and Class Penal­ties in Crack Cocaine Senten­cing, Michael Coyle, The Senten­cing Project,

(       ) avail­able at  http://www.senten­cing­pro­ject.org/Admin/Docu­ments/public­a­tions/rd_racean­d­class_penal­ties.pdf.

[14] United States Senten­cing Commis­sion, Fifteen Years of Guidelines Senten­cing (Nov. 2004), p.122.

[15] Bureau of Justice Stat­ist­ics, Compen­dium of Federal Justice Stat­ist­ics, 2003 (Wash­ing­ton, D.C.: Oct. 2004), refer­en­cing Table 7.16, p. 112.

[16]  See, ABA Testi­mony on Crack Dispar­ity, Febru­ary 12, 2008, avail­able at www.abanet.org/poladv/letters/crim­law/2008fe­b12_crack­dis­par­ity_t.pdf; ACLU Testi­mony, Febru­ary 12, 2008, avail­able at www.aclu.org/drug­policy/senten­cing/index.html – 36k; Report to Congress: Cocaine and Federal Senten­cing Policy, United States Senten­cing Commis­sion, May 2007.

[17] Federal Crack Cocaine Senten­cing, The Senten­cing Project, p. 7, Janu­ary 2009.

[18] Id.

[19] Time to End the Crack Dispar­ity, edit­or­ial, The Phil­adelphia Inquirer, April 27, 2009, avail­able at http://www.philly.com/inquirer/opin­ion/43758552.html.

[20] Federal Crack Cocaine Senten­cing, The Senten­cing Project, p.1, Janu­ary 2009.

[21] United States Senten­cing Commis­sion, Report to Congress: Cocaine and Federal Senten­cing Policy, May 2002, p.103.

[22] Prosec­utorial Discre­tion and Racial Dispar­it­ies in Federal Senten­cing: Some Views of Former U.S. Attor­neys, Federal Senten­cing Reporter, Vol. 19, No. 33, pp.198–199 (2007).

[23] Id. at 194.