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November 12, 2007 - Los Angeles Times (CA)

Panel May Cut Thousands Of Prison Terms

The Early Release Of 19,500 Inmates Could Result As Officials Try To Address Perceived Unfairness In Sentencing Under Federal Cocaine Laws

By Richard B. Schmitt, Los Angeles Times Staff Writer

Return to Drug War News: Don't Miss Archive

WASHINGTON -- Under pressure from federal judges, inmate advocacy groups and civil rights organizations, federal authorities are considering a sweeping cut in prison sentences that could bring early release for thousands of federal inmates.

The proposal being weighed by the U.S. Sentencing Commission would shave an average of at least two years off the sentences of 19,500 federal prisoners, about 1 in 10 in the 200,000-inmate system. More than 2,500 of them, mainly those who have already served lengthy sentences, would be eligible for release within a year if the rule is adopted.

Such a mass commutation would be unprecedented: No other single rule in the two-decade history of the Sentencing Commission has affected nearly as many inmates. And no single law or act of presidential clemency, such as grants of amnesty to draft resisters and conscientious objectors after World War II and the Vietnam War, has affected so many people at one time.

The far-reaching move is aimed at addressing what is seen as an unfair disparity in federal cocaine laws dating to the mid-1980s that have imposed much harsher punishment on crack cocaine users and dealers than in powder cocaine cases. About 80% of those sentenced on federal crack charges every year are African American.

The Justice Department is warning of dire consequences if the proposal goes through, including the possibility that returning thousands of serious drug offenders to the streets would compound a recent increase in violent crime across the country.

"The unexpected release of 20,000 prisoners . . . would jeopardize community safety and threaten to unravel the success we have achieved in removing violent crack offenders from high-crime neighborhoods," the department said in a letter to the commission this month.

The congressionally chartered commission, which sets sentencing guidelines for federal judges, has already adopted reduced penalties for new crack cases hitting the courts effective Nov. 1. That decision will affect about 4,000 a cases a year. The debate now is about its plans to make those changes retroactive to inmates. The seven-member commission is considering the proposal at a hearing Tuesday; a vote is expected next year.

Congress started enacting tougher penalties for crack offenders in the 1980s, at the height of public fears about spreading street violence associated with the drug, and amid concern that crack was more dangerous and addictive than powder cocaine.

The distinction became embedded in federal law and shaped the guidelines that the Sentencing Commission promulgated for two decades. For example, it takes 100 times as much powder cocaine as crack to trigger mandatory five- and 10-year prison terms under federal law.

Most experts now believe that the penalties exaggerate the relative harmfulness of crack compared with powder cocaine.

Another concern is that setting such relatively low thresholds for punishing crack offenders has led to the lengthy imprisonment not of major drug traffickers but of low-level street dealers, couriers and lookouts.

The disparity is under siege on several fronts. There is bipartisan legislation in Congress that would narrow the penalties for crack compared with those for powder cocaine. The Supreme Court is considering a case this term that would give judges even more discretion to reduce sentences in crack cases.

The widely differing treatment of crack offenders is "fundamentally unjust," said Reggie B. Walton, a federal judge in Washington.

As a top White House drug-control official in the 1980s, Walton advocated tougher sentences in crack cases. But the penalties have become too severe, he says. Walton is testifying at the hearing Tuesday on behalf of the policymaking arm of the federal courts, which supports the sentencing proposal.

Walton is greatly concerned that the distinction has eroded confidence in the courts, he says. In Washington, potential jurors often refuse to serve in crack cases, knowing that the penalties hurt African Americans more, he said.

He noted that a few years ago the commission made retroactive reductions in sentences for LSD offenders, who were mainly white. If it does not do the same for defendants in crack cases, he said, it could be accused of a double standard.

"If you are trying to send the message to the greater society that our process is a fair and just process, it becomes very difficult to say, Well, we lower the sentences retroactively for other types of drugs, but in reference to crack cocaine, which we know has had a significantly greater adverse impact on people of color, we are not going to do it," Walton said.

Advocacy groups for inmates, such as Families Against Mandatory Minimums, are being flooded with calls about the Sentencing Commission proposal. Mary Price, the general counsel of the Washington-based group, says a co-worker has two sons in prison who would benefit from the sentencing change.

"It is one of the very important civil rights issues of our day," said Hilary O. Shelton, director of the Washington office for the National Assn. for the Advancement of Colored People, which has long pushed for changing cocaine laws.

Potential beneficiaries of the proposal include Willie Mays Aikens, a former Major League Baseball star with the Kansas City Royals, who was sentenced to 20 years in federal prison in 1994 for selling 63 grams of crack to an undercover cop.

Aikens' case illustrates the effect of the crack/powder divide: If the charges against him involved a similar amount of powder cocaine, he would have received a sentence of no more than 27 months.

Now, if the proposal passes, he will be eligible for release in 2009, about three years earlier than his current release date, said his attorney, Margaret Love.

Justice Department officials question the wisdom of releasing drug dealers earlier than planned without sufficient time to train them to assimilate back into their communities. The department estimates that about a third of those who could be released were convicted on related weapons charges and would pose a worrisome threat.

The department also said it was concerned about the courts being swamped with applications for reduced sentences.

"This surge of litigation, much of which may be frivolous, would detract from our ability to investigate and prosecute current crime and will impede the courts' ability to deal with pending cases, both criminal and civil," Assistant Atty. Gen. Alice Fisher said in a letter to the commission this month.

But federal judges said they would be willing to shoulder the load.

While acknowledging the possible risk to public safety, they also note that judges have discretion under the proposal to decline to reduce the sentence of a defendant who is considered a threat based on criminal history and other factors.

Some experts believe the quandary is the price for a tough-on-crime mentality that at the federal level has included longer sentences, the abolition of parole, and under the Bush administration, the virtual elimination of executive clemency.

They said that in the war on drugs over the last two decades, these measures had not necessarily worked out as expected: Despite prisons crowded with inmates, massive amounts of illegal drugs continue to flow into the country.

"We are struggling to find ways to introduce some flexibility into this very rigid system," said Love, the Justice Department pardon attorney in the 1990s. "The only question is whether we are willing to give people currently doing hard time the benefit of this change of heart."

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