Retroactively, Panel Reduces Drug Sentences

By DAVID STOUT

Published: December 12, 2007

WASHINGTON — The agency that sets guidelines for federal prison sentences voted unanimously on Tuesday to lighten punishments retroactively for some crimes related to crack cocaine, a decision that could eventually affect about 19,500 inmates and mean freedom for some within months.

The 7-to-0 vote by the United States Sentencing Commission was intended to help narrow the stark disparity that has existed for two decades between sentences for crack cocaine and those linked to the powder form of the drug, a disparity written into law two decades ago when it was widely assumed that crack was more dangerous than the powdered drug.

Since then, experts have concluded that there are more similarities than differences, and many people involved in sentencing have lamented the fact that black people are disproportionately affected by crack-related sentences. Statistics show that about 85 percent of the federal inmates behind bars for crack offenses are black.

“At its core, this question is one of fairness,” said one commission member, Judge William K. Sessions III of the United States District Court in Vermont. “This is an historic day. This system of justice is, and must always be, colorblind.”

The decision — which does not affect mandatory minimum sentences imposed by Congress — will become effective on March 3, at which point many inmates will be eligible to petition a judge to be resentenced under the new guidelines. The delay will give prison administrators and other correctional administrators time to prepare for a surge of applications.

Hard numbers are elusive, but statistics kept by the commission suggest that, on average, an eligible prisoner might have his sentence reduced by 17 percent, and that about 3,800 inmates would be eligible but not assured of release in the next year. But, addressing concerns about public safety, commission members emphasized that judges, newly empowered by a pair of Supreme Court decisions on Monday, will have wide discretion over which inmates will be granted leniency.

Notwithstanding his own remark about the commission making history, Judge Sessions suggested, and the other commission members agreed, that it was up to Congress to rewrite what it did two decades ago. Reacting to images — or perhaps anecdotes — about the evils of crack, and the street crime it was presumed to stoke, the lawmakers enacted penalties that many have called draconian, treating crack-cocaine offenses far more harshly than ones involving powdered cocaine.

Several commission members said the perception over the years that crack-related prosecutions had affected black defendants and their relatives far more than white people was having a corrosive effect on the criminal justice system, influencing juries, potential witnesses and law enforcement officers as well as defendants.

The vote was followed by applause by relatives of prisoners who attended the session. But the decision to apply retroactivity does not mean a “get-out-of-jail-free card,” as one panel member put it.

In addition to the 19,500 prisoners who may become eligible for early release sooner or later, there are 16,000 to 17,000 people incarcerated for crack-related crimes who have virtually no hope of a break. Some of them were given the absolute minimum term in the first place, and so have nothing to gain. Other were arrested with huge amounts of crack, or deemed career offenders, and sentenced to long terms with no hope of leniency.

The Bush administration restated its opposition to making the lighter sentences retroactive. “Our position is clear,” Attorney General Michael B. Mukasey said Tuesday at a news conference.

That stance was repeated at the commission meeting by Kelli Ferry, an assistant United States attorney in Virginia who is an ex-officio member of the panel, asserting that the prospect of a large number of prisoners being released posed “significant safety risks for the communities to which they will be returned.”

Drug offenders make up a high percentage of the roughly 200,000 federal inmates. About 60,000 prisoners are released in a typical year, and some 63,000 new inmates take their place.

Cocaine-related offenses are covered under state as well as federal law. A typical prisoner in the federal system was a street-level trafficker — not a kingpin — who dealt in crack when there was little or no public tolerance for drug peddlers, even those with previously clean records.

Iralee Johnson of Orange, N.J., and the 16-year-old granddaughter she is raising, Secoya Jenkins, attended the hearing in the hope that the commission would give a break to Secoya’s mother, Nerika. She was convicted of conspiring to distribute crack in Philadelphia and has been in prison more than a decade.

Ms. Johnson blamed her daughter’s fall on “bad company” and said she had “learned her lesson,” after serving nearly 11 years. Her relatives said she was a first-time nonviolent offender who had just earned an associate college degree.

Because Congress has declined to take up legislation that would reduce or eliminate mandatory minimum prison terms for drug offenses, the sentencing commission can only offer leniency administratively, without setting aside the mandatory minimum terms imposed by Congress.

The commission put new guidelines into effect on Nov. 1, after a 180-day waiting period expired without Congress doing anything to stop them. But the effects were relatively modest: reducing the average sentence for crack possession to 8 years 10 months from 10 years 1 month, for instance.

One commission member, Judge Ruben Castillo of the United States District Court for the Northern District of Illinois, reminded the audience that the commission first recommended in 1995 that the sentencing disparity involving crack and powdered cocaine be erased in the absence of any data that it made sense.

“No one has come before us to justify the 100-to-1 ratio,” Judge Castillo said, referring to a provision of federal law that imposes the same 10-year minimum sentence for possessing 50 grams of crack and for possessing 5,000 grams of powder cocaine.

Senator Edward M. Kennedy, Democrat of Massachusetts and chairman of the Health, Education, Labor and Pensions Committee, said he was pleased with the commission’s action.

“Nearly 20,000 nonviolent, low-level drug offenders will be eligible for a reduction in the excessive prison terms they received in the past because of the unacceptable disparity in the sentencing guidelines between crack cocaine and powder cocaine offenses,” Mr. Kennedy said. “Those who break the law deserve to be punished, but our system says that punishment must be proportionate and fair. The current sentencing disparity between crack and powder cocaine is neither.”

The commission chairman, Judge Ricardo H. Hinojosa of the United States District Court for the Southern District of Texas, reflected at Tuesday’s meeting on the perspective he has acquired in 25 years on the bench. “I didn’t think sentencing would be as difficult as it is when you actually have to do it,” he said.