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Plan to Cut Inmates' Sentences Raises Ire

By Darryl Fears
Washington Post Staff Writer
Wednesday, November 14, 2007

The Bush administration squared off against members of the federal judiciary yesterday over a proposal by an independent panel to reduce the sentences of thousands of federal inmates imprisoned on crack cocaine offenses.

In testimony before the U.S. Sentencing Commission, which sets guidelines for federal prison sentences and recently established more lenient guidelines for future crack cocaine offenders, the administration implored commissioners to forgo making the policy retroactive so that 19,500 inmates would be eligible to have their sentences reduced.

Such an action would backlog the courts and flood halfway houses with hardened criminals who are not prepared to reenter society, Justice Department officials said. "My concern is about the future and about the unforeseen consequences of releasing such large numbers of convicted drug offenders into vulnerable communities in a relatively short period of time," said Gretchen C.F. Shappert, a U.S. attorney for the Western District of North Carolina.

But that assertion was disputed by federal judges, public defenders, activists and several of the commissioners, who, in asking pointed questions to Shappert and other officials, appeared to indicate a willingness to approve making the new, lenient guidelines retroactive.

After Shappert suggested that violent criminals would go free, Commissioners Ruben Castillo and Beryl A. Howell took issue with some of Shappert's comments, and with statements by other members of the administration.

Castillo said eligibility for sentence reduction did not mean that inmates would automatically have their incarceration time cut, and that Shappert and her colleagues would probably be successful in making sure that violent criminals do not win appeals for release. "Isn't there a chance that you would win some of those challenges?" he asked.

Howell's remarks to Shappert were sharper. "I have been quite troubled by the department's letter that says the unexpected release of 20,000 crack offenders" would clog the courts and wreak havoc on communities, she said, referring to a letter from the Justice Department to the commission. "That is totally wrong."

In truth, she said, many of the 19,500 would not get the sentence reductions they seek, and even fewer would be released. But even if all were granted relief, Howell said, the process would take seven to 10 years for most, a far lesser burden on the courts.

"By our estimate," Howell said to Shappert about inmates likely to be released into her Charlotte area district, "the most will be 40 or 42 people," not the hundreds estimated by the prosecutor.

The testimony of Sylvester E. Jones, assistant director of the witness security and prisoner operations division of the U.S. Marshals Service, was also questioned.

If 19,500 prisoners were returned to court for hearings and housed for a month at $65 per day, Jones said, the cost would amount to $38 million for housing alone. Transportation of the prisoners from prisons and courts across the nation would cost $43 million.

Jones's calculations, commissioners said, were based on a false and largely exaggerated number of prisoners, and costs would likely be borne out over a decade.

The commission, comprising seven voting members appointed by President Bush and former president Bill Clinton, is scheduled to meet today, but a vote on retroaction is unlikely. Individuals familiar with the panel's deliberations who spoke only after receiving a promise not to be identified said the commission is likely to vote on retroaction in January. A spokesman for the group declined to discuss its plans.

The disparity between the sentences given for powder cocaine, which more white people use, and cheaper crack cocaine, more widely used among African Americans, is among the most sensitive issues of the war on drugs that began in the mid-1980s.

As part of a tough sentencing equation, Congress mandated that conviction for possessing or distributing five grams of crack cocaine would draw the same mandatory minimum prison sentence as a conviction for possessing or selling 500 grams of powder cocaine.

The commission asked Congress to consider changing the equation before taking action by changing the guidelines on May 1. Congress had 180 days to intervene but declined. The new, more lenient guidelines went into effect Nov. 1.

Lisa B. Freeland, a public defender for the Western District of Pennsylvania, said the sentencing disparity should be made retroactive immediately. "The . . . ratio is unfair and cannot coexist with justice and equity," she said.

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