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February 21, 2008 - Boston Globe (MA)

US Shift May Free Up To 30 Inmates

Judges Here Trim Prison Time For Crack Convictions

By Jonathan Saltzman

Return to Drug War News: Don't Miss Archive

Federal judges in Massachusetts have begun ordering the release of prisoners convicted of crack cocaine offenses, responding to a government decision to retroactively reduce the harsh penalties for using and selling that particular form of the drug. Up to 30 could be affected.

Since Feb. 6, judges have reduced by 15 to 33 months the sentences of at least three Massachusetts inmates imprisoned for crack offenses. As a result, two who have already exceeded the shortened sentences will be freed March 3, the first day prisoners are eligible for lightened punishments for crack-related crimes. A third is expected to be released in June.

In one case, US District Judge William G. Young criticized the US Sentencing Commission for failing to implement the new sentencing structure right away when it voted on Dec. 11 to make the lessened penalties retroactive for some 19,500 federal prisoners nationwide.

"The failure of the Commission immediately to implement its solution to the 'fundamental unfairness' in the way crack cocaine offenders were treated under the previous version of the guidelines . . . virtually guarantees that some defendants . . . will spend more time in prison than they should have," Young wrote Tuesday.

Young said one convicted crack dealer, Carlos Gagot, would be finished with his sentence as a result of a 33-month reduction at the request of the defense and government. But the judge said he was pow erless to free Gagot immediately. Still, Gagot "ought not spend one more day in prison than necessary" and should be freed March 3, Young wrote.

Miriam Conrad -- head of the federal public defender agency in Boston, which represented the three defendants whose releases have been ordered -- said her office has come up with a list of at least 27 other inmates who may be eligible for sentence reductions.

"I'm getting letters from prisoners on a daily basis," she said.

An analysis by the US Sentencing Commission, which voted unanimously Dec. 11 to lighten punishments retroactively for some crack offenses, said 91 prisoners convicted in federal courts in Massachusetts will be eligible through 2012 to seek reductions of sentences imposed for selling or possessing crack. But Conrad said she believes the number could be much higher than 91.

Christina DiIorio-Sterling -- a spokeswoman for US Attorney Michael J. Sullivan, whose office agreed to all three sentence reductions -- said many factors will determine how prosecutors treat such applications.

"In general, there will be some offenders for whom early release may be appropriate, given the reduction in sentencing as mandated by the changes in the guidelines," she said.

Advocates for such offenders were buoyed by the first reductions in sentences to take place as a result of the government's effort to reduce the stark disparity between punishments for crimes involving crack cocaine and those involving cocaine powder.

"Everyone knew for years that the crack guidelines were just obscenely inflated, compared to powder cocaine," said Page Kelley, the federal defender who represented Gagot, "so this is a very belated and meager correction of those guidelines."

US District Judge Nancy Gertner, who ordered yesterday that Fernando Morales be released March 3 for the time he has served on a crack-dealing conviction, said in an interview that federal judges across the country have long decried the disparity between penalties for crack cocaine and powder cocaine.

"It was right to change it, and it should be changed even further," she said.

The third prisoner whose release has been ordered is Deborah Woodard. Young reduced her sentence from 135 to 120 months, making her eligible for release in June.

A bill pushed through Congress in the national frenzy following the 1986 death of Len Bias, a first-round National Basketball Association draft pick for the Celtics whose death was initially linked to crack cocaine, imposed extreme mandatory penalties for crack.

Under the law, someone caught with 1 gram of crack received the same sentence as someone with 100 grams of powder cocaine. It also imposed a minimum mandatory sentence of five years in prison for dealing 5 grams of crack and 10 years in prison for dealing 50 grams of crack.

Advocates of the two-tier penalty system said crack was cheaper and more addictive than powder cocaine and was more frequently linked to violent crime. But critics said that those differences were overstated and that blacks bore the brunt of the inequity, because they account for at least 80 percent of federal crack defendants.

The Sentencing Commission reduced the sentencing range for crack cocaine offenses by two levels last year, lowering the maximum recommended sentence for selling 5 grams of cocaine from 78 months to 63 months.

Nonetheless, prison terms for crack cocaine are still longer than those for powder cocaine, because only Congress can change the 100-to-1 ratio and mandatory minimum sentences.

Mary Price of Families Against Mandatory Minimums, an advocacy group, said she has heard of judges in other states issuing orders similar to those in Massachusetts.

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