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The hate crime legislation enacted in 2009 directed the U.S. Sentencing Commission to submit a second report on federal mandatory minimums.28 The commission presented its second report in October 2011.29 A number of things had changed between the first and second Commission reports. Sentencing under the Guidelines had been in place for only a relatively short period of time when the first report was written. By the time of the second report, the number of defendants sentenced by federal courts had grown to almost three times the number sentenced under the Guidelines when the commission wrote its first report.30 The judicial landscape has changed as well. When the commission issued its first report, the Guidelines were considered binding upon sentencing judges.31 After the Supreme Court's Booker decision and its progeny, the Guidelines became but the first step in the sentencing process.32 In addition, the Fair Sentencing Act, passed in 2010, reduced the powder cocaine-crack cocaine ratio from 100 to 10 to roughly 18 to 1.33
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The eight substances are heroin, powder cocaine, cocaine base (crack), PCP, LSD, fentanyl, methamphetamine, and marijuana. Criminal penalties related to each substance provide one set of mandatory minimums for trafficking in a very substantial amount listed in Section 841(b)(1)(A), and a second, lower set of mandatory minimums for trafficking in a lower but still substantial amount listed in Section 841(a)(1)(B). The first set (841(b)(1)(A) level) features the following thresholds:
At one time, possession with intent to distribute crack cocaine (cocaine base) was punished 100 times more severely than possession with intent to distribute cocaine in powdered form.294 Defendants claimed the distinction had a racially disparate impact. The claim was almost universally rejected.295
P.L. 111-220, 2(a), 124 Stat. 2372 (2010). Prior to enactment, 5000 grams of powder cocaine or 50 grams of crack cocaine triggered the Controlled Substances Act's 10-year mandatory minimum, 21 U.S.C. 841(b)(1)(A)(ii) and (iii) (2006 ed.), and 500 grams of powder or 5 grams of crack triggered its 5-year mandatory minimum. Id. 841(b)(1)(B)(ii) and (iii) (2006 ed.). The FSA established a 5000 grams to 280 gram ratio for the 10-year mandatory minimum, 21 U.S.C. 841(b)(1)(A)(ii) and (iii), and a 500 grams to 28 gram ratio for the 5-year mandatory minimum. Id. 841(b)(1)(B)(ii) and (iii).
Conspiracy to violate narcotic laws (cocaine); possession/distribution cocaine (crack); possession of a firearm by convicted felon during drug trafficking crime; possession of firearm/ammunition by convicted felon (two counts)
Knowingly and intentionally distribute a mixture or substance containing a detectable amount of cocaine base (crack); Knowingly and intentionally combine, conspire, confederate, and agree to distribute a mixture or substance containing a detectable amount of cocaine base (crack)
Conspiracy to possess with intent to distribute a controlled substance; possession with intent to distribute cocaine, crack cocaine, and marijuana; use of a communication facility to commit, cause or facilitate commission of drug felony (five counts)
Possession with intent to distribute a quantity of cocaine base (crack); using and carrying a firearm during and in relation to a drug trafficking crime (two counts); possession with intent to distribute more than five grams of cocaine base (crack)
Conspiracy to distribute and to possess with intent to distribute heroin and marijuana, each a schedule I controlled substance, and cocaine and cocaine base ("crack"), each a schedule II controlled substance; money laundering
Conspiracy to distribute cocaine base ("crack"); distribution of cocaine base ("crack") or possession with intent to distribute cocaine base ("crack"); carrying a firearm during a drug trafficking crime
Conspiracy to possess with intent to distribute and to distribute more than five kilograms of powder cocaine, 50 grams of cocaine base, and/or 1,000 kilograms of marijuana; possession with intent to distribute five kilograms or more of cocaine; possession with intent to distribute 50 grams or more of cocaine base (crack cocaine); possession with intent to distribute 40 pounds of marijuana
Conspiracy to distribute and possess with intent to distribute 50 grams or more of cocaine base (crack); distribution and possession with intent to distribute more than five grams of cocaine base (crack) (five counts); distribution and possession with intent to distribute more than 50 grams of cocaine base (crack)
Conspiracy to distribute and possess with intent to distribute crack cocaine, 21 U.S.C. 846; distribution of crack cocaine and aiding and abetting (two counts), 21 U.S.C. 841(a)(1) and 18 U.S.C. 2
Smoking crack cocaine has been linked with numerous lung issues, including injuries to the airways, asthma, a range of symptoms referred to as "crack lung," interstitial lung disease, pneumonia, bronchiolitis, pulmonary hypertension, emphysema, infections, and tumors.
Andre has been in Terre Haute for only about a year and a half, but the federal prison system has been his home since 1997, when he was sentenced to life without parole for possession with intent to distribute 114 grams of crack cocaine.
Thirteen years later, Congress responded. The Fair Sentencing Act, signed by President Barack Obama in August 2010, reduced the long-discredited 100-to-1 disparity between the amount of powder cocaine and the amount of crack needed to trigger the same mandatory minimum sentences. Someone like Andre would now have to be caught with 28 grams of crack to trigger the five-year sentence and 280 grams to trigger a decade.
Employing officers from more than a dozen different city and state police forces, as well as federal agents, the task force was built to sustain lengthy, sprawling investigations involving wiretaps and extended surveillance aimed at taking down a network of Jamaican immigrant "posses" accused of coordinating thousands of members in an effort to monopolize the retail side of crack cocaine distribution in the United States, often using violence.
Kenneth, who had also sold drugs, had been living in Andre's old bedroom while Andre lived with Lahran Small downtown. Andre still kept shoes and clothes there. Inside a safe in the room, agents said they found personal papers that belonged to Andre, a brown paper bag with 123 grams of powder cocaine, and a plastic bag with 114 grams of crack.
Since Aaron went to prison in 1993, lawmakers across party lines and government branches have gradually rolled back the measures associated with the tough-on-drugs era in which he was sentenced: inflexible mandatory minimums, broad and unfettered prosecutorial discretion and a disparity in how crack and cocaine were treated by the criminal justice system. The Smarter Sentencing Act, currently pending in Congress, would make some of these changes retroactive for thousands of inmates serving crack sentences. But many inmates who fall outside the act's scope would not be helped.
But roughly 13 years after Aaron first petitioned for relief, on Dec. 19, 2013, President Barack Obama used his executive power to make a point, commuting the sentences of Aaron and seven others who were caught in what the president called the "decades-old injustice" of the crack cocaine sentencing disparities.
The Anti-Drug Abuse Act included a 5-to-40-year sentence for trafficking in 5 grams of crack and a sentence of 10 years to life for trafficking in 50 grams. It also established the 100-to-1 disparity between the amount of crack versus powder cocaine needed to trigger the same sentences.
Of all the illicit drugs in America, crack is perhaps the most notorious. Yet most Americans know little about its history and pharmacology, its relationship to powder cocaine or who the average user really is. This gap between perception and reality has had real-life consequences, especially when it comes to jail time.
Crack cocaine, on the other hand, was seen as an epidemic. The word "crack" still conjures a film reel of drug dens, murderous dealers and hollow-eyed waifs selling their bodies for a $5 rock. A 1991 congressional study on the health effects of this "epidemic" warned that casual use was impossible: "The craving for crack ultimately may become more important than anything else in the user's life."
In black communities, ravaged by mass unemployment and growing inequality, crack cocaine was a symptom of desperate times. The down-and-out grew addicted to its cheap, instant high, overwhelming emergency rooms; armed gangs set up competitive franchises and child welfare cases surged.
Like anything else, drugs go through trends. While 2.2 percent of the population in 1982 claimed to use crack on a regular basis (defined as having used within the past month), only 0.6 percent used any form of cocaine regularly in 2012, according to the Substance Abuse and Mental Health Services Administration (SAMHSA).
Suarez, 51, is a career stonemason who spent years battling drug addiction. He remembers trying crack for the first time in 1983, when it was "available 24 hours a day, in a $5, $2, $1 piece." Suarez sold small amounts of drugs and fell out with his family, but neither jail time nor treatment programs did him any good. Only harm reduction, focused on peer outreach and safe drug use, helped him "maintain." He now does cocaine very infrequently.
This decadent period would, in part, turn out to be the background for the drug-related crimes later committed by the Dominican men I write about. Cocaine would birth the drug dubbed "crack," which would first launch them into superstardom and then drop them as fallen stars. But like all social phenomena, crack and cocaine did not appear or vanish by magic. Social forces birthed and nurtured them, then dug their graves.
Its glow would spur a cocaine surge among affluent U.S. consumers. During the 1970s, cocaine use rose by about 300 percent. To keep up with the ravenous appetite, its overseas producers increased supply by 400 percent. As a result of high demand and high availability, purity would increase by close to 30 percent, and its kilo price would drop by about 60 percent.59 Yet it was still too expensive for poor drug consumers. Their turn would come later, through a chemical variation known as "crack."