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August 16, 2008 -- Daily Press (VA)

VA Leads In Crack Sentence Reductions

Under New Rules, Federal Judges In The State Have Lowered The Terms Of At Least 825 Prisoners

By Peter Dujardin

Return to Drug War News: Don't Miss Archive

NEWPORT NEWS -- Virginia leads the nation in the number of prisoners who've had sentences reduced under new federal sentencing guidelines for crack cocaine, U.S. Sentencing Commission numbers show.

Federal judges in Virginia have lowered the sentences of at least 825 prisoners since the new rules took effect March 3 -- with the average prisoner getting more than two years cut from a sentence, according to a recent report from the commission.

Judges have granted sentence reductions to 65 percent of the 1,271 federal prisoners in Virginia whose applications were acted upon by July 22. The numbers don't show how many have been released from prison.

Over the past 5 1/2 months, local defense attorneys, federal prosecutors and judges have been busy working on a slew of sentencing reductions coming through the federal system.

"We're making progress," said Michael S. Nachmanoff, the Alexandria-based federal public defender for the Eastern District of Virginia. "We've certainly gotten through huge number of cases in a pretty short amount of time."

The seven-member Sentencing Commission voted late last year to modestly reduce a vast and longstanding disparity in sentences involving equal amounts of crack cocaine and powdered cocaine. The commission then applied the change to thousands of people already behind bars.

Critics have long contended that the sentencing discrepancy is more about race than the drugs themselves: That is, those convicted on crack offenses -- more likely to be black than those convicted on powdered-cocaine offenses -- are treated more harshly than those convicted of powdered-cocaine offenses. But they are essentially the same drug, except that crack is smoked, while powder is snorted or injected.

Under the old sentencing guidelines, people convicted of dealing 50 grams (1.75 ounces) of crack for the first time would get between 10 and 12 1/2 years in prison, whereas someone convicted of dealing the same weight of powdered cocaine would get between 21 and 27 months. Under the new guidelines, the person dealing crack would get between eight and 10 years -- a two-year reduction -- while the powdered-cocaine punishment would remain the same.

Eastern Virginia -- where crack-cocaine arrests were numerous throughout the 1990s, particularly with an anti-gun initiative called Project Exile and other efforts -- is the nationwide region most affected by the new guidelines. The district includes Hampton Roads, the Richmond region and Northern Virginia.

Last year, the Sentencing Commission estimated Virginia's Eastern District would rank first among the 94 U.S. districts in the number of people eligible to have their sentences cut under the new rules.

The Eastern District has 1,404 prisoners, or 7.2 percent of the 19,500 national total, who might be eligible to get out early under the sentencing change. That far outpaces federal court districts that include New York, Los Angeles, Chicago, Washington and Miami. The Western District of Virginia -- which covers Roanoke, Lynchburg and Charlottesville -- is fourth on the list.

The change applies only to crack convictions in federal courts, not state courts. Under Virginia's sentencing guidelines, crack offenses are treated equally with those for powdered cocaine.

Each case, typically filed by a defense attorney or the defendant, is looked at by prosecutors before judges make a ruling on a reduction. Before the new guidelines took effect, there was a concern that the crack-sentencing reductions would take too much time from prosecutors' other cases. That was a big reason the Bush administration opposed applying the new guidelines retroactively to people in prison.

But Deanna Warren, a spokeswoman with the U.S. attorney's Norfolk office, said it hadn't been a problem. The work is divvied out to prosecutors on a rotating basis. Judges, too, she said, have efficiently pushed cases through.

"I think our system has worked," she said. "It's been very smooth, once we got the system down. The court has done a great job. Everybody has done their fair share."

Shortly after the new guidelines took effect in March, Warren said, she saw 25 motions coming across her desk each week -- with the work sometimes taking up more than half her day. Now, she said, that has fallen to three or four a week. "At first, I just had to dedicate more time to it," she said.

Ivan Davis, first assistant federal public defender for the Eastern District, handles many of the motions coming through the Alexandria office. "We're well oiled and well tuned at this point," Davis said. "We have these motions that just go out, and certain things have to be changed in them. On a not too busy day, I can get out 10 regular motions."

The average successful applicant in the Eastern District has seen prison time reduced by 29 months, or nearly 2 1/2 years. That's a 18 percent cut from the average 13-year sentence.

Some have gotten bigger breaks. In one Alexandria case, Davis said, a man was scheduled to serve life in prison but has now seen his sentence reduced to 30 years. Because he has served 20 years and will get some time knocked off for good behavior, he could be out in seven years -- rather than spending the rest of his days in prison.

But some defendants' applications have been rejected. The reasons are varied, including other charges that haven't been reduced and mandatory minimum sentences on particular charges. Inmates who are career offenders or have had problems with discipline in prison have also been rejected.

Between March 3 and July 22, federal judges nationwide have acted on 10,707 crack-sentencing reductions, granting 8,147, or 76 percent of the applications.

In the Eastern District of Virginia, judges have acted on 635 cases -- granting 394 cases, or 62 percent.

Once hundreds of pending cases are heard, the Eastern District is likely to surpass the Western District of Virginia as No. 1 in the nation.

"I'm confident that we're going to be number one here shortly, given the number of cases we still have," Nachmanoff said.

New Guidelines For Crack

Under old sentencing guidelines, people convicted of dealing 50 grams (1.75 ounces) of crack for the first time would get a prison sentence between 10 and 12 1/2 years. Someone convicted of dealing the same weight of powdered cocaine would get between 21 months and 2 1/4 years.

Under new guidelines, the person dealing crack would get between eight and 10 years -- a two-year reduction --while the powdered-cocaine punishment would remain the same.

Also visit our "Crack vs. Powder Cocaine" section.

Also visit our "Prisoner ReEntry" section.

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