Examining Crack Cocaine Sentencing in a Post- Kimbrough World

08-CASSIDY.DOC
1/29/2009 3:29:23 PM
2009] EXAMINING CRACK COCAINE SENTENCING IN A POST-KIMBROUGH WORLD 109
In 1984, the Washington Post reported crack addicts in Los Angeles
were using their welfare checks to get high, 28 and television networks
broadcasted seventy-four drug-related news segments—more than half
focusing on crack—during the summer of 1986. 29 Newsweek called
crack the most significant story since Vietnam and Watergate, 30 and
Time labeled it the “issue of the year” in 1986. 31 The extensive coverage
was justified, with cocaine-related deaths rising from 185 in 1981 to 580
in 1984. 32 Statistics from 700 hospital emergency rooms revealed that
roughly 10,000 patients were admitted in 1985 for cocaine-related health
problems, a near threefold increase from the 3,300 admitted in 1981. 33
During the 1980s, the federal anti-drug budget amassed close to $13
billion a year, approximately twice the budget of the Environmental
Protection Agency. 34 Increased spending, however, was not enough.
The war on crack raged on, and Congress desperately sought a solution.
III. MODERN FEDERAL SENTENCING: A BRIEF HISTORY
A. The Sentencing Reform Act
From the late nineteenth century and throughout most of the
twentieth century, federal judges were afforded broad discretion when
imposing sentences. 35 Judges were free to sentence a defendant up to a
legislatively imposed statutory maximum based on their reading of the
facts. 36 Appellate review was only triggered when a sentence exceeded
the statutory maximum or was based on overt discrimination. 37 This
28. Jay Matthews, Drug Abuse Takes New Form; Rock Cocaine Is Peddled To the Poor In
Los Angeles, WASH. POST, Dec. 23, 1984, at A15.
29. See CHRISTIAN PARENTI, LOCKDOWN AMERICA: POLICE AND PRISONS IN THE AGE OF
CRISIS 56 (1999).
30. Id. at 56-57.
31. Carol A. Brook, Mukasey Puts Latest Crack in Truth on Drugs, CHI. TRIB., Mar. 7, 2008,
available at http://www.nacdl.org/public.nsf/legislation/Legislation008?Opendocument.
32. Joel Brinkley, U.S. Says Cocaine Related Deaths are Rising, N.Y. TIMES, July 11, 1986,
at A1.
33. Id.
34. Dan Baum, Tunnel Vision: The War on Drugs, 12 Years Later, 79 A.B.A. J. 70, 70
(1993). Almost two-thirds of the federal drug budget was used for more law enforcement
personnel, prosecutors, and prisons, while about one-third was designated for treatment. Id.
35. Steven L. Chanenson, The Next Era of Sentencing Reform, 54 EMORY L.J. 377, 391-92
(2005).
36. Id. at 392.
37. See, e.g., Michael Goldsmith, Reconsidering the Constitutionality of Federal Sentencing
Guidelines After Blakely: A Former Commissioner’s Perspective, 2004 BYU L. REV. 935, 939
(“Prior to 1984, federal judges enjoyed wide discretion in sentencing offenders. A judge could