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For Crack Offenders, Earlier Shot At Release

By Darryl Fears
Washington Post Staff Writer
Wednesday, December 12, 2007

The U.S. Sentencing Commission voted unanimously yesterday to give federal inmates incarcerated for crack cocaine offenses a chance to reduce their sentences, paving the way for about 3,800 prisoners to petition for an early release in the next year.

Yesterday's vote was a controversial sequel to the panel's decision this spring to change the guidelines it issues to judges, reducing the sentences that are handed out to people convicted of crack cocaine offenses. That decision, which went into effect Nov. 1, applied to future cases. Yesterday's vote made that decision retroactive, covering people already imprisoned.

According to an analysis by the commission, 19,500 inmates will be eligible to petition the courts to reduce their sentences. The largest number of those -- more than 1,400 -- were convicted in the U.S. District Court for the Eastern District of Virginia, covering Northern Virginia and the Richmond and Tidewater areas. About 280 inmates convicted in federal courts in Maryland will be eligible, as well as almost 270 prisoners convicted and sentenced in the District.

"Crack cocaine sentences have generally been excessive and unwarranted," said William K. Sessions III, a vice chair of the commission. He went on to quote Judge Reggie B. Walton, who appeared before the commission last month: "I just don't see how it's fair that someone sentenced on October 30th gets a certain sentence when someone sentenced on November 1st gets another."

The commission's vote came a day after the Supreme Court decided that federal district judges are not bound by commission guidelines that created a large disparity in punishments meted out to crack and powder cocaine offenders. The 7 to 2 decision cut across the court's typical ideological divide.

The commission's decisions are its attempts to narrow that gap. That disparity, first written into federal law by Congress in 1986, has long been criticized by some jurists and civil rights advocates because it meant crack cocaine offenders, who tend to be African American, often get longer prison sentences than those convicted of crimes involving powder cocaine, who more often are white.

The Bush administration strongly opposed the commission's vote to make its earlier decision retroactive, arguing that inmates would clog the courts with appeals for reductions.

"Making the revised guidelines for crack cocaine retroactive will make thousands of dangerous prisoners, many of them violent gang members, eligible for immediate release," Craig S. Morford, acting deputy attorney general, said in a statement released by the Justice Department. "These offenders are among the most serious and violent offenders in the federal system."

In March, crack cocaine offenders will be eligible to petition the courts that originally sentenced them to have their prison time reduced. Many could be denied by judges based on certain factors, such as whether they represent a public danger or were convicted for other crimes.

"The profound reason why we should get this retroactive application is it is the right thing to do," Vice Chair Ruben Castillo said minutes before the vote. "We should constantly strive to make sure that race plays no role in the day-to-day operation of the criminal justice system."

Commissioner Beryl A. Howell called the vote "one of the most important decisions the commission has made" during her three years of service. She noted that the panel contributed to the disparity by establishing guidelines that were even more severe than what Congress allowed for in the Anti-Drug Abuse Act of 1986.

As part of a tough sentencing equation, the bipartisan commission mandated that conviction for possessing or distributing five grams of crack cocaine would draw the same mandatory minimum prison sentence of five years as a conviction for possessing or selling 500 grams of powder cocaine, and 10 year for 50 grams of crack or 5,000 grams of powder. In 1995 the commission asked Congress to treat the drugs equally for sentencing purposes, but the request was rejected.

Howell said the vote, which could reduce sentences by an average of 27 months for inmates sentenced under the old guidelines, is small but important. "It is significant because it's the first correct movement in over . . . 20 years. Though modest, I think it shows the commission is trying to change the contribution it has made to the disparity."

But the change is not a "get out of jail free" card, said commissioner Michael E. Horowitz. "Not everybody is automatically entitled to this reduction," he said, explaining that federal judges, many of whom supported making the guidelines retroactive, will decide cases individually on merit.

Sessions said the commission decided to delay retroaction until March 3 so that courts can prepare for an onslaught of inmate motions. The Bureau of Prisons will be asked to notify its facilities, and administrators are to notify inmates of their eligibility.

Echoing a majority of commissioners, Castillo said the vote is a signal to Congress "to make a comprehensive change" in the drug laws.

In the audience, activists from groups such as Families Against Mandatory Minimums joined the family members of inmates in applauding the vote.

Karen Garrison, a D.C. mother whose twin sons, both Howard University graduates whose convictions were based on witness testimony, said: "This is the first time I have really been excited about anything." Lamont Garrison's 19-year sentence could be reduced by four years, and Lawrence's sentence could be reduced by three.

Secoya Jenkins, 16, of Orange, N.J., smiled broadly and said, "I'm excited because my mom is coming home." Nerika Jenkins, 35, also convicted because of witness testimony, is serving a 19-year sentence.

"It is a remarkable day," said Marc Mauer, executive director of the Sentencing Project. "While this is only the federal system and it's a small change, it's going to resonate around the world."

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