Beyond the Clash of Disparities: Cocaine Sentencing After Booker

Abstract

United States v. Booker has reignited a long-smoldering debate over the crack sentencing ratio contained in the United States Sentencing Guidelines, which punishes crack offenders much more harshly than powder cocaine offenders. Courts disagree over whether Booker's standard of “reasonableness review” permits judges to categorically abandon the ratio. This article argues that it does not. In doing so, this article revises the traditional argument against the crack sentencing ratio and suggests that this revised argument can be accommodated by a new “structural” approach to post-Booker sentencing. The article elaborates this structural approach, suggests a doctrinal framework, and sketches its limits and possibilities for future crack sentencing cases. In practice, this article contends that the new approach allows a resolution of the crack issue that has so far gone unappreciated by both sides of the debate: Contrary to common assumption, sentencing judges can reduce the harm caused by the crack disparity without treading on policy choices made by Congress.

Keywords: Booker, Blakely, crack, cocaine, sentencing, sentencing guidelines, drug