Some crack convicts could soon be set free
March 3, 2008
CNN
Kevin Bohn
http://www.cnn.com/2008/US/03/03/crack.release/
Story Highlights
Federal inmates convicted on crack-cocaine charges may be granted early release
Decision aims to resolve disparity over powder, crack cocaine sentencing
Nearly 1,600 federal inmates eligible to ask court to reduce their sentences
(CNN) -- New sentencing guidelines were expected to lead Monday to the early release of more than a dozen federal inmates convicted on crack-cocaine charges.
Approximately 1,600 federal inmates are currently eligible to ask a court to reduce their sentences because of December's decision by a federal agency to make retroactive reduced sentences for some crack-cocaine related convictions.
The decision was based on the stark difference in terms handed out for crack convictions versus those convicted on charges for powder cocaine.
Judges could reduce sentences for nearly 20,000 inmates following the decision by the U.S. Sentencing Commission -- an independent federal agency that advises all three branches of government on sentences. Advocates of the sentence reduction say it is only fair, but the Justice Department counters and says that the move will allow dangerous criminals back on the street.
The Justice Department is concerned "that so many people would be released all at once -- people who have shown that they are repeat offenders, and without the possibility of any kind of transition or re-entry program to bring them from prison back to the streets," Deborah Rhodes, an associate deputy attorney general, told CNN. Watch why officials are worried about inmates' early release »
But lawyers and groups that have been pushing for the change in sentencing disagree. They say that most of these prisoners are not hardened criminals, and that judges will have to approve any reduction on a case-by-case basis and will not grant an early release to those considered dangerous.
"Judges have a lot of discretion," Virginia public defender Michael Nachmanoff told CNN. His office filed 16 motions for early release and expects at least four of his clients to be set free Monday, with some others going to halfway houses.
"If [judges] view a particular defendant a public danger there is nothing in the law that obligates them to lower that sentence," he said.
Judges "can also impose intermediate protections as well or refer someone to a halfway house, or to home confinement," he said.
The U.S. Supreme Court ruled 7-2 in December that judges can impose shorter prison sentences for crack cocaine. If reductions are approved by judges, the Justice Department hopes they will be as limited as possible.
The Supreme Court case dealt with Derrick Kimbrough of Norfolk, Virginia, who according to court records, pleaded guilty to distributing more than 50 grams of crack cocaine.
Federal sentencing guidelines called for 19 to 22.5 years behind bars. However, Judge Raymond Jackson instead gave the defendant a 15-year sentence, calling the case "another example of how crack-cocaine guidelines are driving the offense level to a point higher than is necessary to do justice."
A federal appeals court later overturned the case and sent it to a higher court, claiming Jackson's discretion was "unreasonable when it is based on a disagreement with the sentencing disparity for crack and powder cocaine offenses."
But writing for the majority in the Supreme Court's decision, Justice Ruth Bader Ginsburg said it is important to preserve judicial discretion, while ensuring most sentences remain within federal guidelines.
Attorney General Michael Mukasey told a police group last week that statistics from the Sentencing Commission show that nearly 80 percent of the almost 20,000 who can ultimately apply in the coming years for reductions have a prior criminal record.
The commission, however, in a recent report also pointed out that only 1 percent of the 1,600 immediately eligible were considered "career criminals."
Previously, a person with one gram of crack would receive the same sentence as someone with 100 grams of the powder version.
Those advocating sentencing reform, such as the Families Against Mandatory Minimums, argue that such a ratio is discriminatory, and they point to a racial issue associated with the disparity in sentencing. Many of those found with crack are African-American, while powder users are mostly white.
While the commission set Monday as the date for the retroactive measure to take effect, some of the eligible prisoners are already free -- since the panel's date was considered advisory and let judges make their own decisions.
Public defender David Porter, who works in Sacramento, California, told CNN that judges there had already approved the release of two of his clients.
Since the Sentencing Commission action, lawyers around the nation have been working vigorously file motions for many of those eligible so they could be released as close to March 3 as possible if judges approve.
Other inmates, such as 60-year-old amputee Burton Hagwood, who has been in prison since 2000, petitioned courts themselves. His wife, who did not wish to be identified, said he is not violent and would not be a threat to society.
"He wants to come back to the community. And he also wants to help the community. He plans on doing some paralegal work when he gets out. So he would be an asset," she told CNN