Panel Votes to Reduce Crack Sentences

Decision affects a group of predominately black offenders already in prison.

ByJason Ryan and Theresa Cook
February 12, 2009, 4:28 PM

Dec. 11, 2007 — -- A federal sentencing panel has voted unanimously to set new guidelines that will make sentences for crack cocaine retroactive, a move that makes more than 19,500 convicted drug offenders currently serving time in prison eligible for early release.

The decision by the seven-member U.S. Sentencing Commission will affect a predominately black group of inmates already serving time by allowing judges to lessen their sentences by two to three years on average, an effort to close a gap between sentences for crack cocaine versus the powder version of the drug.

Offenders, judges or the director of the Bureau of Prisons can make the motion to apply for early release, but ultimately, "these decisions are left to the discretion of federal judges," commissioner Dabney Friedrich said.

Career or very violent offenders, as determined by criminal history and the nature of offenses committed, are not eligible, but as many as 3,800 inmates who qualify could be released in the first year. The decision will take effect March 3, 2008.

"This is not a get-out-of-jail-free card," said commission member Michael Horowitz. "It will provide a greater sense of fairness."

Judge William Sessions, a member of the commission, said at Tuesday's meeting, "These penalties have had dramatic impact on African-American families," as more than 80 percent of federal crack defendants are black.

"This is a historic day," Sessions said. "The system of justice must always be colorblind."

The move comes on the heels of a decision by the Supreme Court, which ruled Monday to allow judges greater latitude to sentence crack cocaine offenders to shorter prison terms.

Congress passed increased penalties on crack cocaine over powder cocaine in 1986, as the crack epidemic led to increased violence and addiction in U.S. cities. The mandatory minimum sentences for crack cocaine offenses were the same as those for the mostly white individuals convicted of possessing 100 times as much powdered cocaine.

In an effort to reduce the disparity, the commission proposed a measure earlier this year to reduce crack cocaine sentences by an average of 27 months. The change went into effect Nov. 1, but was not applied retroactively at the time.

The commission has never before retroactively applied a change in sentencing that would affect so many people, though it has allowed new sentencing amendments for marijuana-, LSD- and oxycodone-related offenses to be applied to previously sentenced offenders, most of whom are white.

Several groups had come out in favor of a decision to make the guidelines retroactive, in part because of the fact that federal crack prosecutions heavily impact blacks.

"Despite the fact that cocaine use is roughly proportionate among the different populations of our nation, the vast majority of offenders who are tried, convicted and sentenced under federal crack cocaine mandatory minimum sentences are African-American," NAACP Washington bureau director Hilary Shelton said at a forum the commission held on the matter last month.

"Our people in our communities continue to be disproportionately devastated by the law. Almost 83 percent of those convicted of federal cocaine offenses are African-American, while according to the 2000 census, only 12.9 percent of the entire U.S. population is African- American."

On the other side of the argument is the Justice Department, which has strongly objected to retroactive sentence reduction.

"Our position is clear. We oppose it," Attorney General Michael Mukasey said at a Tuesday press conference, before the commission's vote took place.

He said that because the cases that could be affected were handled under an assumed set of guidelines in place at the time, making the retroactive change would "in a sense be unfair because it would undo a lot of decisions that might have been made otherwise had those guidelines not been in place."

Mukasey also voiced concern about how the probation system would handle a possible influx of newly released offenders.

As for Tuesday's vote, while the commission did not extend the retroactivity to violent or career offenders, the Justice Department rejected the decision.

"Making the revised guidelines for crack cocaine retroactive will make thousands of dangerous prisoners, many of them violent gang members, eligible for immediate release," Acting Deputy Attorney General Craig Morford said. "These offenders are among the most serious and violent offenders in the federal system."

"In addition to the threat to public safety, retroactive application will divert valuable resources from federal courts and prosecutors for resentencing at a time when violent crime is rising in many vulnerable communities around the country," Morford's statement concluded.

With the U.S. prison and jail population topping 2 million, some inner city communities have been heavily impacted.

At the November forum on the issue, commission member Edward F. Reilly Jr. said addiction and treatment are significant issues that are part of the larger picture.

"We've got to struggle, as Americans, with this [prison] population issue. I don't see how we can continue to build prisons and take money away from other important social resources," Reilly said.

But there's concern that Monday's Supreme Court decision, which gave judges greater discretion in imposing lower sentences for crack offenses, will embolden some judges to make further reductions in sentences, beyond what the commission approved with Tuesday's vote.

One federal judge, who has a reputation of imposing tough sentences on criminal offenders, said last month that the change could have a positive impact on offenders who have rehabilitated themselves in prison.

"People do change," Judge Reggie Walton said at a hearing last month. "But I do think that the reality is that we have a lot of people in our presence who have reached the point where they could be released back into society and would not be a potential threat."

"And we pay an astronomical amount of money to keep those people locked up for times beyond when they need to be locked up, when we could be using that money to maybe educate our kids and put programs in our communities so those kids don't end up in the prison cells that are being occupied by those who don't need to be there," Walton continued.

Walton sits on the bench of the U.S. District Court in predominately black Washington, D.C.

Before taking his place as a judge, Walton worked as a prosecutor, and served as associate director of the Office of National Drug Control Policy in the first Bush administration, from 1989 to 1991.

Even with the commission approving the change, it will not take effect immediately, giving Congress a chance to weigh in. Congress could reject the commission's decision outright, or it could say any reduction in sentences will be limited to the mechanical formula, again, to limit the judges' discretion in these cases.

But the top Democrat on the Senate Judiciary Committee immediately applauded the commission's decision.

"I abhor the damage done by drug abuse, but I also abhor that the penalties for those in our inner cities are different than for those in affluent society," Sen. Patrick Leahy, D-Vt. said in a statement. "For 21 years, far too many African Americans and low-level drug offenders were subject to unfair and overly punitive federal crack cocaine sentencing laws.

"Applying this fix retroactively is only fair and just," Leahy's statement concluded.

Leahy's counterpart on the House Judiciary Committee, chairman John Conyers, D-Mich., had urged the commission Monday to do the "right thing" and apply the guidelines retroactively in light of the Supreme Court decision.

Tuesday, he joined Leahy in championing the decision, calling it a good first step to combat a "grossly unfair" sentencing policy.

"At a time when our nation's prison population continues to expand exponentially, at a huge cost to taxpayers, we must get smart about our nation's drug policy," Conyers said.

"Congress must act to change crack/powder penalties. I intend to hold hearings next year to begin the long-overdue process of changing these unfair laws."

ABC News' Jan Crawford Greenburg contributed to this report.

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