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April 3, 2008 -- Los Angeles Times (CA)

Freedom Eludes Many Crack Inmates

Though New Rules Have Reduced Sentences For Some, Others Remain Behind Bars Because Of Bureaucratic Delays And Justice Department Opposition

By Richard B. Schmitt, Los Angeles Times Staff Writer

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WASHINGTON -- New federal sentencing guidelines designed to end the racially tinged disparity between prison sentences for powder and crack cocaine dealers went into effect a month ago, and so far more than 3,000 inmates have had their prison terms reduced.

Dozens have been released, including at least 15 in California, but many others who should have been released have not. Attorneys involved in the process blame bureaucratic delays as well as opposition from the Justice Department.

In North Carolina, which has the country's fifth largest population of crack offenders eligible for early release, four inmates have been freed out of some three dozen who lawyers say should have been released, in some cases, years ago.

The delays appear to be due in part to a procedural bottleneck: Federal judges there did not approve a plan for processing requests for sentence reductions until five days before the new rules were to go into effect. Courts in parts of Texas and south Florida also appear to be lagging.

The U.S. Sentencing Commission approved the guidelines in December after a two-decade debate over the fairness and efficacy of laws that have punished dealers of crack cocaine much more severely than those who sell powder cocaine. The disparity has weighed particularly hard on African Americans, who represent about 90% of the defendants prosecuted for crack offenses in federal court.

The sentencing commission has estimated that about 20,000 inmates are eligible for the reduced sentences.

When the rules were approved, the commission deferred the effective date until March 3 to give courts time to prepare. As of Tuesday, the federal Bureau of Prisons said it had received 3,077 signed orders from judges modifying the sentences of prisoners nationwide. The prisons bureau won't say how many have actually been released; even after the reductions, some inmates will still have much time to serve.

In Dallas, one judge has refused to allow federal defenders to represent crack offenders in his court, saying they have no right to counsel at this stage of the proceedings. That has left hundreds of inmates having to file jailhouse petitions to gain their freedom.

After that ruling, the federal public defender in Dallas, Richard Anderson, sent out a mass mailing to several hundred eligible inmates to help them prepare their cases. Many of the inmates' applications are incomplete or have errors. The complexities of federal sentencing law have caused added confusion.

"The playing field isn't very level," Anderson said.

Some judges have recently begun to reconsider the approach and are more readily appointing lawyers for inmates, he said.

The delays stand in sharp contrast to the experience in other regions of the country where the new rules have unleashed an outpouring of federal clemency.

The process seems to be working best in jurisdictions where prosecutors, judges and probation officers were working weeks and in some cases months in advance of the effective date to mitigate delays.

Lee T. Lawless, a federal public defender in St. Louis, said his office had a standing agreement with the U.S. attorney that unless an inmate had posed a clear public safety threat or had received an unusually lenient sentence, the government would not stand in the way of the reductions.

Parks N. Small, a federal public defender in Columbia, S.C., said his office had been engaged in "triage" for months to make sure prisoners eligible for immediate release received attention. About 80 sentence-reduction orders were signed the first week of March, including "a couple of mistakes who got out a week or two early."

Dozens of other inmates have been granted sentence reductions in West Virginia, Florida and Ohio, among other states.

Among California crack offenders gaining early releases was a Fresno woman, Stacey Candler, 34, who was sentenced to 15 years in prison in 1996 after police caught up with her live-in boyfriend, a crack dealer. Also released was Vernon Watts, 37, of Sacramento, whose 22-year-sentence was shaved by about four years. "I have been waiting for this for a long time," Watts said in an interview after his release.

David M. Porter, a federal public defender in Sacramento, said Candler and Watts would still be behind bars if legislation the Justice Department had sought limiting the impact of the new sentences had become law. That exception was aimed at supposed violent offenders whose cases involved guns. Neither Candler nor Watts was convicted of gun offenses, but they would have been affected by the harsher rule because weapons were found by police at their residences. Nonetheless, Porter said that prosecutors in California did not object to the two inmates being released early.

At least three inmates convicted of crack offenses in Los Angeles have been released.

In other jurisdictions, prosecutors and judges are moving more deliberately. Some federal law enforcement officials defend the approach, noting that the new rules do not automatically entitle inmates to the lower sentences, and that judges are required to consider such factors as whether they pose a danger to the community in weighing early releases.

Claire Rauscher, a federal public defender in Charlotte, did not expect much opposition when she filed papers on behalf of about three dozen crack offenders seeking early release in North Carolina. They were all near the end of their sentences, and most were already residing in halfway houses being prepared to reenter society. "They are perfect candidates" for immediate release, Rauscher said.

But prosecutors in Charlotte apparently don't think so. The government supported one of the early releases and actively opposed two other requests, including one covering the case of a 29-year-old crack dealer who under the new rules should have been released two years ago. Prosecutors have argued that the man has a continuing propensity for violence.

The U.S. attorney in Charlotte, Gretchen C.F. Shappert, has been one of the Justice Department's most ardent advocates of tough sentences for crack offenders. She was the department's representative in February on Capitol Hill, testifying against the new sentencing breaks and citing the need to keep dealers locked up.

Now that the rules are in effect, "I believe that it is our duty and responsibility as prosecutors to review each and every petition" for early release, Shappert said in an interview. "We will provide our judges with an informed and detailed response in cases that we believe require judicial scrutiny."

Shappert recently opposed the release of Kenneth Eugene Jackson, who had just 11 days left on his sentence after having been incarcerated for a decade. Jackson had already been released from a halfway house and was serving the remainder of his sentence in home confinement, Rauscher said.

Shappert argued in court papers that Jackson, whose original sentence was reduced because he had cooperated with investigators, had already received enough of a benefit.

But a federal judge in Asheville, N.C., countermanded the government's position and ordered him released, citing his "exemplary record during incarceration."

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