washingtonpost.com
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.

In many cases, prosecutors didn't contest the reductions because the convicts were near the end of their sentences. In others, prosecutors and defense attorneys agreed on reductions within the new guideline.

Thousands more cases remain, among them hundreds in Washington area federal courthouses. They have been more difficult to resolve, prosecutors and defense attorneys said.

"There are no generic cases, and these aren't widgets," said Gretchen C.F. Shappert, the U.S. attorney for the Western District of North Carolina and the Justice Department's point person on crack sentencing. "They present complicated issues, and each one is different."

Lawyers say some cases present such complex legal issues that they expect appeals.

Certain cases are so difficult that, even when prosecutors agree that an offender is a candidate for a reduction, both sides disagree on how much. Prosecutors say some convicts don't deserve much of a break because of bad conduct or criminal history. And some offenders, they say, deserve no leniency at all.

"We want to make sure that dangerous people are not being released too soon," said John P. Mannarino, acting chief of the special proceedings division of the U.S. attorney's office in the District. "We want to make sure that the reductions are appropriate."

Mary Manning Petras, an assistant federal public defender, has led the fight in U.S. District Court in Washington to reduce sentences for crack offenders. She has won earlier releases for more than 150 and is working on scores of others, sometimes pursuing novel legal arguments.

She says she tries to get judges to understand how unfair crack sentences have been. One she cites is the case of Donnell O. Williams, 37.

Since age 11, Williams had been a member of the R Street Crew, a ruthless drug gang in Northeast Washington that made headlines in the early 1990s.

At a hearing before U.S. District Court Judge Thomas F. Hogan in October, Petras argued that Williams played a minor role in the gang and said prosecutors originally offered him a plea deal that would have capped his sentence at five years. But the agreement evaporated when a co-defendant refused to accept a similar deal, and Williams and four others were convicted at trial. He was sentenced to life.

Prosecutors conceded that Williams deserved some benefit from the commission's guideline changes. But they argued that Williams was an important cog in the gang, had carried guns and was present when other crew members committed violence. They said Hogan shouldn't reduce the sentence below 30 years, leaving Williams with about nine more years to serve.

By speakerphone during the hearing, Williams told Hogan that he wanted to be a productive citizen and "to have some more kids, get married and spend the rest of my days as an old man, a happy, free man."

"Your Honor, I was very stupid and I made some bad choices," he said. "I was young and I was crazy."

Last month, Hogan reduced Williams's sentence to 24 years. He has a little more than three years left to serve. "Going from life to just 3 1/2 years in prison, that is a huge thing," Petras said. "That is very satisfying. You can't beat the feeling. You have this guy who has life, and now he will get out in his 40s. Amazing."

Other cases present more complicated legal arguments.

Ricardo E. Epps pleaded guilty in 1999 to distributing crack cocaine in a deal that required the judge to sentence him to more than 15 years. Petras has argued in court papers that Epps would not have agreed to that sentence if there had been a lower guideline range and that he has served enough time. Prosecutors countered that a federal judge has no authority to undo such a deal.

The biggest legal issue facing the cases is whether judges can reduce sentences below the new guideline ranges. In 2005, the Supreme Court ruled that the guidelines, once mandatory, were only advisory. To appease concerns about sentence reductions being larger than intended under the new rules, the commission said judges could not resentence offenders to terms below the new ranges. But Petras has persuaded three judges to do just that, winning immediate release for two inmates.

Marvin Ragland, a 49-year-old crack dealer who was sentenced in 1998 to more than 15 years in prison, was ordered released in August with time served. If the judge had reduced his sentence to the low end of the new guidelines, Ragland would have faced 18 more months behind bars.

"Those extra months mean a lot," said Ragland, who is living with his grandmother in Northeast Washington. "I'm home and I'm free. Every day matters."

View all comments that have been posted about this article.

© 2009 The Washington Post Company