Early release proposed for crack cocaine offenders
Atty. Gen. Eric H. Holder Jr. backs an early release proposal to retroactively correct sentence disparities between crack and powder cocaine offenders. The plan, which would apply to 5,500 prisoners, would take effect Nov. 1.
By Richard A. Serrano, David G. Savage and Carol J. Williams
Los Angeles Times
June 1, 2011
http://www.latimes.com/news/nationworld/nation/la-na-holder-crack-20110602,0,5716668.story
Thousands of
federal prisoners could have an average of three years shaved off their prison
terms to correct wide disparities in sentences between crack and powder cocaine
offenders, under a proposal supported by Atty. Gen. Eric H. Holder Jr.
More than 12,000 federal prisoners — nearly 6% of the inmates in the badly
overcrowded U.S. prison system — could be affected. But Holder recommended
Wednesday that the early release be applied to only 5,500 prisoners, whose
crimes did not involve the use of weapons and who did not have long criminal
histories. The releases could begin later this year.
The proposal is intended to remedy a legacy of the war on drugs that meted out
much harsher sentences to crack cocaine users, who are mostly black, than to
powder cocaine users, often white and sometimes affluent. Congress changed the
sentencing law last year but did not address the fate of thousands of prisoners
already sentenced under the old system or arrested just before the law was
changed.
The proposal under consideration by the U.S. Sentencing Commission comes after a
divided Supreme Court ordered California to reduce its prison population by more
than 30,000 inmates. It drew immediate fire from some prominent conservatives.
Rep. Lamar Smith (R-Texas), chairman of the House Judiciary Committee, said he
was "disappointed by the Obama administration's position" on early releases for
drug offenders and indicated he might push Congress to intervene if the U.S.
Sentencing Commission votes to make the changes this month that would take
effect Nov. 1. "It shows they are more concerned with the well-being of
criminals than with the safety of our communities."
Sen. Charles E. Grassley (R-Iowa), the ranking member of the Senate Judiciary
Committee, said it was a "bad idea" and that "I strongly disagree" with Holder's
recommendations.
But blocking the move would be an uphill battle. To stop the sentence
reductions, opponents would have to introduce a bill rejecting the early
releases and the House and Senate would have to pass that legislation and send
it to the White House for President Obama's signature — an unlikely sequence.
Smith was the only lawmaker to speak against the change in the law last year.
"I would be extremely surprised if Congress got worked up about this," said Marc
Mauer, executive director of the Sentencing Project, a Washington group that
pushes for reform in sentencing laws. "The law that was passed last year had
strong bipartisan support and it's within the commission's authority to make
sentencing guideline changes retroactive."
The number of prisoners who stand to benefit in California is relatively small,
fewer than 300, because prosecutors have targeted drug gangs rather than
individual dealers.
In testimony before the commission, Holder said his years as a federal
prosecutor, federal judge and, now, the country's top law enforcement officer
"compelled" him to seek equity between an offender convicted in a crack case and
someone serving a shorter term for powder cocaine.
"There is simply no just or logical reason why their punishments should be
dramatically more severe than those of other cocaine offenders," Holder said.
The six-member commission, presidential appointees comprising federal judges,
lawyers and academics, are expected to vote later this month on amending the
Fair Sentencing Act to grant the reprieves retroactively.
The commission has received 37,000 letters and emails on the subject, the
majority of them from prisoners and their families who support early releases
and equity between crack and powder cocaine offenders.
Mauer, who also testified at Wednesday's commission hearing, said the average
crack offender would see a reduction of 37 months in his sentence.
The relief is justified, he said, because there is "no meaningful
pharmacological difference between the two drugs" and "large percentages" of
low-level crack dealers are serving long sentences designed for serious
traffickers.
He added that the crack versus powder cocaine disparity particularly affects
African Americans, who account for 82% of those convicted for federal crack
offenses.
"For many African Americans," Mauer said, "this fundamental unfairness has
undermined the legitimacy of the criminal justice system."
If the amendments are approved and become effective Nov. 1, prisoners or their
attorneys can petition their sentencing judges for an early release, commission
officials said. Or the judge or the director of the Bureau of Prisons could act
unilaterally.
In the past, some judges have readily agreed to lower prison terms in response
to changes in the sentencing guidelines. Others have been reluctant to do so.
"This process will be coordinated among the courts, probation offices, U.S.
attorneys’ offices and the federal public defenders service," said Jeanne
Doherty, a commission spokeswoman.
The harsh punishments for crack cocaine were rooted in the mid-1980s, when the
epidemic of crack cocaine swept through major cities. Legislation was rushed
through Congress in the weeks before the 1986 election and resulted in a series
of penalties that has haunted judges, lawyers, prison wardens and untold
families since.
Without time to study the issue, Congress wrote into law specific penalties for
different versions of the same drug. Someone caught with 500 grams of powder
cocaine or 5 grams of crack cocaine would get five years in prison. Possession
of 5,000 grams of powder cocaine called for a mandatory 10-year term. The same
was true for 50 grams of crack cocaine.
This 100-to-1 ratio based on the weight of powder and crack cocaine was adopted
in the U.S. sentencing guidelines, and it has been used for deciding prison
terms for more than 91,000 inmates since.
After years of growing criticism, Congress voted last year to change the ratio
to 18 to 1. The law called for less severe prison terms for newly convicted
defendants. However, it did not say what should happen to those already
sentenced to long terms under the now-repealed ratio, and left it open for the
commission to make available retroactive reductions.
In the Central District of California, which covers Los Angeles and six other
counties, 138 prisoners would be eligible for relief.
Thom Mrozek, a spokesman for the U.S. attorney's office in Los Angeles, said
that although each of the 94 federal prosecution offices nationwide had its own
guidelines about what cases to bring, "in the area of narcotics, we like to
focus our resources on drug trafficking organizations as opposed to a guy
selling a rock."
California state prisoners serving time for cocaine offenses won't be affected
by federal sentencing reductions and disparities in the state system are fewer.
Carl Gunn of the federal public defender's office in Los Angeles said the
proposed federal sentence reductions were a step in the right direction but that
they did not go far enough to correct the injustice of a law that so severely
punishes users of one form of the drug and not others.
"There are still a lot of people out there suffering the ill effects of a
horribly unjust law," he said of the thousands of other federal prisoners
sentenced to mandatory minimums that cannot be lifted by the sentencing
commission.