Release of 19,500 Crack Offenders Considered

Sentencing Commission could retroactively apply new sentencing guidelines.

February 12, 2009, 3:02 PM

Nov. 13, 2007— -- The U.S. Sentencing Commission heard testimony Tuesday on whether it should reduce the prison sentences of an estimated 19,500 people currently incarcerated for crack cocaine offenses.

In May, the commission proposed reducing crack cocaine sentences by an average of 27 months. The amendment affects individuals convicted after Nov. 1, but now the commission is considering making the rule retroactive for previously sentenced offenders.

According to an analysis by the Sentencing Project, a group in favor of retroactively applying the decision, a majority of the people affected by the new policy have been sentenced since 1995.

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 individuals convicted of possessing 100 times as much powdered cocaine.

There is a racial disparity in the federal crack statues, Marc Mauer, executive director of the Sentencing Project, noted in a statement to the commission.

"Currently, more than 80 percent of the people prosecuted under the federal statues are black. Whether or not this is evidence of bias in policy or practice it clearly demonstrates that a retroactive change would disproportionately benefit African-Americans," Mauer stated.

The Justice Department has strongly opposed the retroactive sentence reduction claiming, that it would pose a public safety risk.

"The commission, to our knowledge, has never before made an amendment retroactive that would have the sweeping impact of these proposed amendments," Alice Fisher, an assistant attorney general, wrote in a letter to the commission earlier this month.

"Furthermore," Fisher's letter continued, "the unexpected release of 20,000 prisoners ... who have comparatively high recidivism rates, would jeopardize community safety and threatens to unravel the success we have achieved in removing violent crack offenders from high crime neighborhoods."

"I would hope all judges are ready to take on that additional burden," federal Judge Reggie Walton said at Tuesday's meeting, though he noted that the commission's estimated 1,404 eligible offenders sentenced in the Eastern District of Virginia alone "would be an added burden in that district."

Virginia's eastern district includes suburban Washington, as well as Richmond. Walton serves on the bench of the U.S. District Court in Washington, D.C.

Before serving on the bench, Walton worked as a prosecutor and served as the associate director of the Office of National Drug Control Policy in the first Bush administration, from 1989-1991.

Walton, however, who is regarded as a judge who is tough on crime and imposes tough sentences, said, "People do change. … The reality is that we have a lot of people in our prisons that could be released."

Walton cited the financial burden of having so many people in prisons, and that the money would be more effective if it were used in educating prisoners.

With the U.S. prison and jail population topping 2 million, some communities in inner cities have been severely affected.

Commission member Edward F. Reilly Jr. said at the hearing, "We're talking about people with addiction. … Treatment is an issue. … We've got to struggle with the population issue."

There is no set date for when the members of the commission may vote on the issue.

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