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Barry Sentenced to 6 Months in PrisonBy Michael York and Tracy Thompson
Washington Post Staff Writers
Saturday, October 27, 1990; Page A01
U.S. District Judge Thomas Penfield Jackson, saying that D.C. Mayor Marion Barry had violated the public trust, yesterday sentenced Barry to six months in prison and ordered him to pay a $5,000 fine for his conviction of cocaine possession.
Jackson said Barry "has given aid, comfort and encouragement to the drug culture at large, and contributed to the anguish that illegal drugs have inflicted on this city." The judge said Barry, 54, is "a compulsive user of cocaine," and therefore is not only a criminal but a victim, "deserving of as much compassion as anyone so afflicted."
Under federal rules, Barry would be required to spend the full six months in prison. Parole has been abolished in the federal system, and prisons grant administrative reductions, or "good time," only for prisoners sentenced to more than a year.
The judge said that in addition to the $5,000 fine, Barry must pay for his confinement, a standard condition under a 1984 law. Federal officials said that, using current fees as an example, that could amount to about $9,653 for the six-month imprisonment and one year of federal supervision. During that year, Barry will have to submit to unscheduled urinalysis tests.
Moments before the sentencing, Barry asked Jackson for leniency, telling the judge that he wanted "to take full responsibility" for actions Barry described as "out of character for me."
"My mother, who is sitting in this courtroom, didn't raise me that way," Barry said. "My wife, who married me over 12 years ago, wouldn't have married someone with those kinds of character defects and values."
Jackson could have handed Barry a one-year sentence and a $100,000 fine, but it is uncommon for first-time offenders to receive jail terms for a misdemeanor possession. Barry's lawyer, R. Kenneth Mundy, said he will appeal the verdict and the sentence.
It is unclear how the sentence will affect Barry's candidacy next month for an at-large seat on the D.C. Council. Under city law, a mayor or council member can stay in office after conviction for a misdemeanor, but not for a felony.
The sentence appears to be a closing chapter in the investigation and prosecution of the mayor, a criminal case that has preoccupied the District in the closing years of the Barry administration and divided the city on the question of the government's fairness in pursuing him. The case had drama enough for worldwide publicity. The mayor was lured to a hotel by a former girlfriend working for the FBI, and he was videotaped smoking crack.
The sentence characteristically split the city's residents. Some said it is a fair sentence. Others said it is too harsh, and some see in it evidence of racism. Several pointed to such cases as former White House aide Michael Deaver, a white man whom Jackson sentenced to probation for a 1987 perjury conviction.
The mayor was asked later for his reaction, and said: "I should have been shocked and stunned. I'm not. I'm calm about it."
"I understand there are different sets of standards for different people. That's the American injustice system."
Later, Barry told ABC News that Jackson's sentence was unfair, particularly in light of the Deaver case. "It's disparate treatment," Barry said. "It doesn't get at what I allegedly did."
As downcast as Barry appeared to be -- face drawn, voice in a monotone -- law enforcement officials who worked on the case, reacting in private moments, were ebullient.
Jackson allowed Barry to remain free on his own recognizance during the appeal, which could take up to a year. Jackson did not recommend that Barry serve his term in a halfway house or other community facility, and it appeared that the U.S. Bureau of Prisons would assign the mayor to a federal prison.
After a 10-week trial, Barry was convicted of a single charge of possessing cocaine, for having used cocaine with a friend, Doris Crenshaw, at Washington's Mayflower Hotel in fall 1989. He was acquitted of a second drug possession charge, and jurors were unable to reach a verdict on the remaining 12 charges, including three felony counts alleging that he lied to a federal grand jury.
"His breach of public trust alone," Jackson said of Barry, "warrants an enhanced sentence. By his own unlawful conduct the defendant rendered himself beholden to, and thus vulnerable to influence from, anyone who had firsthand knowledge of it . . . . His prominence inspired others to emulate him and to behave as they believed he did."
Jackson, referring to hefty sentences meted out to drug dealers in the same courthouse recently -- he cited a Howard University student, 22, given 12 years in prison -- "proportionate justice would seem to call for some fairly comparable penalty" for Barry. Drug dealers, the judge said, are "part of the drug supply network. There would, however, be no people like them -- and also no drug crisis -- if there were no consumers to make a market for illicit drugs. The defendant was such a consumer."
In imposing his sentence, Jackson accepted a key part of the government's argument: that Barry was guilty of more than the single possession count for which the jury convicted him.
Jackson also based his sentence in part on the government's contention that Barry tried to obstruct justice when he allegedly lied to a grand jury investigating reports of drug use by former D.C. employee Charles Lewis in December 1988. That charge was among the perjury counts on which the jury deadlocked.
Federal prosecutors yesterday dropped the 12 remaining charges.
Mundy urged Jackson to place Barry on probation, saying the mayor would be more valuable to the community as a volunteer worker than as a prisoner. Outside the courthouse, Mundy said he was "very disappointed" with the sentence. "The final chapter hasn't been written," he said.
During the sentencing hearing, Assistant U.S. Attorney Judith E. Retchin described Barry's appeal for leniency as a last-minute courthouse conversion. She said he had not truly accepted responsibility for his actions.
The judge agreed, saying that Barry has shown "persistence, until the moment of his sentencing, in a formal attitude of denial" about his drug use. The day before, Mundy filed papers asking for leniency, including a Barry letter to Jackson acknowledging for the first time he is a recovering drug addict.
Mundy said in court yesterday that Barry had been ready to make a public confession of drug use as early as January, after the mayor's arrest at the Vista Hotel. Mundy said he conducted plea negotiations with U.S. Attorney Jay B. Stephens, and he said Barry had offered to plead guilty to four possession counts in June during the final days before trial.
Stephens, at an afternoon news conference, declined to comment about the plea negotiations, citing a confidentiality agreement with Mundy.
Stephens said Mundy's description of the negotiations was "substantially inaccurate."
Stephens used the news conference to acknowledge what he called the extraordinary cooperation among law enforcement personnel during the investigation. He singled out Retchin and fellow prosecutor Richard W. Roberts. He also praised D.C. police Sgts. James Pawlik and Al Arrington for their "persistence, dedication and their courage" in investigating their boss, the mayor. In addition, Stephens mentioned FBI agents Peter Wubbenhorst, Ronald Stern and Fred Speidell.
Asked about the cost of the Barry investigation, Stephens said his office has spent $240,000 since December 1988. That does not include FBI and police expenses. Stephens's statement contradicted speculation by some of his critics who, without citing evidence, said the investigation cost $50 million.
Attorney General Dick Thornburgh said the sentence "sends a clear and continuing message that the use of illegal drugs will not be tolerated in our society."
At one point during sentencing, Jackson obliquely criticized the work of the jurors at Barry's trial. He said that Barry, in his public statements and actions, had tried to persuade them to "disregard the law and the evidence," and he implied the mayor was partially successful.
"The jurors will have to answer to themselves and to their fellow citizens for the way in which they discharged their duty," the judge said.
Jurors reached for comment yesterday about Jackson's remark reacted with restraint.
"I think he's entitled to his opinion," said Harriedell Jones, who said she did not believe she had anything to answer for. "I did what I had to do." According to post-trial interviews with jurors, Jones almost consistently voted for acquittal.
Another juror, Marilyn Thomas, said that she did not take the judge's comment as a personal criticism. According to interviews with other jurors, Thomas initially voted to convict Barry, then changed her vote. "My conscience is clear," Thomas said. Asked about the sentence, she said: "We all reap what we sow. We all pay for what we do."
Staff writers Barton Gellman, R.H. Melton and Elsa Walsh contributed to this report.