By Darryl Fears
Washington Post Staff Writer
Tuesday, November 13, 2007
An independent panel is considering reducing the sentences of inmates incarcerated in federal prisons for crack cocaine offenses, which would make thousands of people immediately eligible to be freed.
The U.S. Sentencing Commission, which sets guidelines for federal prison sentences, established more lenient guidelines this spring for future crack cocaine offenders. The panel is scheduled to consider today a proposal to make the new guidelines retroactive.
Should the panel adopt the new policy, the sentences of 19,500 inmates would be reduced by an average of 27 months. About 3,800 inmates now imprisoned for possession and distribution of crack cocaine could be freed within the next year, according to the commission's analysis. The proposal would cover only inmates in federal prisons and not those in state correctional facilities, where the vast majority of people convicted of drug offenses are held.
By far the largest number -- more than 1,400 -- of those who would be eligible for sentence reductions were convicted in the U.S. District Court for the Eastern District of Virginia, which has jurisdiction over Northern Virginia and the Richmond area, according to an analysis done by the commission. Nearly 280 inmates convicted in federal courts in Maryland would be eligible, as well as almost 270 prisoners found guilty in the District of Columbia.
The commission is taking up one of the most racially sensitive issues of the two-decades-old war on drugs. Jurists and civil rights organizations have long complained that the commission's guidelines mandate more stringent federal penalties for crack cocaine offenses, which usually involve African Americans, than for crimes involving powder cocaine, which generally involve white people. The chemical properties of the drugs are the same, though crack is potentially more addictive.
Nearly 86 percent of inmates who would be affected by the change are black; slightly fewer than 6 percent are white. Ninety-four percent are men.
The commission's proposal does not change sentencing recommendations for powder cocaine.
Created in 1984 to bring more consistency to sentencing in federal courts, the commission has reduced sentences and made such decisions retroactive for offenses involving LSD, marijuana cultivation and the painkiller OxyContin. But none involved such a large number of inmates or so controversial a drug, or have had such racial implications.
The Bush administration opposes the new plan, arguing that it would overburden federal courts and release potentially dangerous drug offenders. In a letter to the commission, Assistant Attorney General Alice S. Fisher wrote that the release of a large number of drug offenders "would jeopardize community safety and threatens to unravel the success we have achieved in removing violent crack offenders from high-crime neighborhoods."
But many federal judges, public defenders, parole officers and civil rights advocates favor the move, asserting that the penalties for crack cocaine charges have fallen disproportionately onto black people.
"Making the amendment retroactive will . . . help repair the image of the sentencing guidelines in communities of color," NAACP Chairman Julian Bond wrote to the commission. "It is cruel and arbitrary to fix this injustice for some, but not for others, solely because of the date they were sentenced."
Congress has the power to overturn the proposal, but it is unclear whether it will do so. Lawmakers had 180 days to reverse the commission's May 1 decision to effect more lenient sentences for individuals convicted in some crack-related offenses, and they took no action. Those changes in the guidelines took effect Nov. 1.
The commission, an agency in the judicial branch, consists of seven voting members, nominated by the president and confirmed by the Senate. (The attorney general and the chairman of the U.S. Parole Commission are nonvoting members.) Three commissioners must be federal judges. Four current members were named by President Bush; the rest were tapped by President Bill Clinton in 1999.
In part, because of crack's relatively cheap price, most offenders are poor black people. As a result, some civil libertarians cite sentencing discrepancies as one reason for the explosion in the number of African Americans -- especially men -- behind bars.
Testifying before Congress earlier this year, the chairman of the sentencing commission, Ricardo H. Hinojosa, implored lawmakers to ease the crack guidelines. He said the racial differences between users of crack and powder cocaine created an unwarranted judicial disparity.
If the plan for retroactive reductions is adopted, inmates serving time for certain crack offenses can petition a judge for a hearing on whether they can be freed as a result of having their sentences reduced. A judge's decision can be appealed.
Richard L. Delonis, national president of the National Association of Assistant U.S. Attorneys, warned that retroaction would burden prosecutors and overwhelm U.S. marshals, who would have to resettle prisoners into halfway houses.
Among those challenging that argument are the committee on criminal law for the Judicial Conference of the United States and the Florida Association of Criminal Defense Lawyers.
Robert W. Pratt, chief judge of the U.S. District Court for the Southern District of Iowa, said assertions that retroaction will result in "an avalanche of motions . . . are exaggerated." He added: "The courts' workloads should not stand in the way of achieving sentences in 'crack' cocaine cases that are proportionate, fair and serve the interests of justice."
Inmates who might benefit from the reductions include Lamont and Lawrence Garrison, African American twins and graduates of Howard University who were sent to prison for 19 years and 15 years, respectively, for distributing crack cocaine.
Lamont Garrison's sentence could be reduced by four years and his brother's by three years if the guidelines become retroactive, said Monica Pratt Raffanel, a spokeswoman for Families Against Mandatory Minimums, an advocacy group that has lobbied for changes to the sentencing guidelines.
"They've been gone for almost 10 years, and the crack in the door with this little change is good," said Karen Garrison, the twins' mother. "As far as the retroactivity, part of it is not to think nothing until I see it. They still have to go back to court. It's not as easy as it seems if it does become retroactive. You just have to do the right thing and hope you get something back."