New Sentencing Guidelines For Crack, New Challenges

By Del Quentin Wilber
Washington Post Staff Writer
Thursday, January 1, 2009

Michael D. Thompson, a former crack cocaine dealer, thought he deserved a break.

Sentenced in 2000 to 15 years and eight months in prison, Thompson asked a federal judge in the District to release him, arguing that he had received an unfair sentence and has turned his life around behind bars, earning a general equivalency diploma and completing a commercial driving course.

Federal prosecutors said that was a terrible idea. Citing Thompson's criminal past and prison disciplinary record, which includes threatening a prison official with a knife, prosecutors argued in court papers that the 37-year-old poses a danger to the community and should complete his sentence.

Thompson's case is one of thousands around the country in which crack offenders and their defense attorneys are sparring with federal prosecutors over how to interpret new sentencing guidelines for crack possession or sale. The guidelines were issued to right old wrongs. But they have led to time-consuming legal challenges dealing with the often long-forgotten consequences of the bloody crack wars in the late 1980s and 1990s.

Defense lawyers say they are correcting systemic sentencing flaws that removed their clients, mostly black men, from their communities for too many years. Federal prosecutors say they are working to prevent bad guys from returning to the streets to wreak more havoc. Both sides say they are seeking justice.

"Justice isn't easy and justice isn't always about the simplest and most efficient solution, and sometimes it requires getting down in the dirt, and that is what we are doing in these cases now," said Michael S. Nachmanoff, the federal public defender for the Eastern District of Virginia, who has filed hundreds of applications to reduce crack sentences.

The legal fights stem from a decision last year by the U.S. Sentencing Commission to amend guidelines and reduce prison time for crack offenders. Advocates, defense lawyers and judges say sentencing laws are unfair because of a massive disparity in punishment between crack cocaine and powder cocaine. A person convicted of distributing five grams of crack, for example, draws the same mandatory minimum five-year sentence as someone convicted of distributing 500 grams of powder cocaine. The disparity was written into federal law in 1986 and has been criticized for disproportionately affecting blacks.

The commission, an independent agency in the judicial branch that develops sentencing policy, modified its guidelines to lower the potential range of sentences. The commission has urged Congress to eliminate the sentencing disparity.

In March, over the Bush administration's objections, the commission's reductions were applied retroactively, allowing thousands of inmates to petition judges for shorter sentences.

From March through the first week of December, federal judges in the Eastern District of Virginia and in Maryland granted more than 800 such requests and denied about 490. Judges in the District have granted more than 160 and denied nine. Lawyers said Virginia's federal courts have received a large number of applications filed by inmates representing themselves, and many are not eligible for reductions. In the District, the federal public defender is coordinating the effort.

In weighing the requests, judges must evaluate several factors, including criminal records and the amount of crack the offenders were convicted of possessing or distributing. Then there are the intangibles. Some judges want a strong indication that offenders are remorseful for their conduct.

Nationally, federal judges reduced sentences by an average of two years, or 17 percent, for more than 12,000 crack offenders from March through early December, according to the commission. In Michael Thompson's case, a judge trimmed his sentence Dec. 17 by a little more than three years.

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