Chicago Tribune Mar. 6

Crack cocaine prison terms may be eased
March 6, 2008
By Michael Higgins
Chicago Tribune

In a victory for critics who say the nation's drug laws disproportionately punish racial minorities, a new federal rule that took effect this week has made about 350 inmates sentenced for crack cocaine offenses in Chicago eligible for reduced sentences.

The controversial new rule has defense lawyers scrambling to court on behalf of their clients. Several dozen inmates, such as Pharoah Spencer, 31, stand to be released immediately.

For defense lawyers, "it's probably the largest thing on the radar screen right now," said Spencer's attorney, John A. Meyer of Chicago.

The U.S. Sentencing Commission made the change, which applies to up to 19,500 inmates nationwide, last year in order to soften the disparity between sentences involving powder cocaine and the more harsh prison terms meted out for crack.

Current drug laws passed in the 1980s established a so-called 100-1 ratio in which 5 grams of crack is treated the same as 500 grams of powder cocaine.

Civil rights advocates have long argued that those laws unfairly mandate tougher sentences for the smokable version of cocaine popular among urban minority drug users, than for powder, a form of the drug more prevalent among suburban whites.

Only Congress can rewrite the drug laws. But the Sentencing Commission altered the guideline that judges consult to decide proper sentences and made the change retroactive, which means inmates who have already been sentenced can still benefit.

Spencer, for example, pleaded guilty to selling 70 grams of crack, about $2,400 worth, to an FBI informant in 2003.

That same amount of powder cocaine would have netted Spencer a sentence of 8 to 14 months, Meyer said. But Spencer was sentenced to 70 months, or almost 6 years.

Spencer had been set to be released March 31. But on Wednesday, U.S. District Judge Ruben Castillo, who is also a vice chairman of the Sentencing Commission, approved his immediate release because his sentence under the new rule would be 57 months.

Reluctance from Justice

U.S. Department of Justice officials have criticized the new guideline, saying it creates a risk to public safety and should not have been made retroactive.

"These offenders are often violent criminals who are likely to repeat their criminal activities," U.S. Atty. Gen. Michael Mukasey said last month in a speech to a police union.

In a statement this week, Justice Department officials said they would apply the new guideline as written. But the statement added: "We had hoped to tailor the rule to apply only to those who are first-time or non-violent offenders -- rather than all 19,500 eligible offenders -- but that did not happen."

In a recent op-ed piece in the Los Angeles Times, Craig Morford, the outgoing acting deputy U.S. attorney general, said the government owed it to inner-city residents not to weaken crack laws.

"When I speak with people who live in these communities, they tell me that they struggle with the scourge of crack cocaine every day," Morford wrote. "Children can't play outside, elders can't sit on the front porch, families are imprisoned in their homes. And they have asked prosecutors like me to do something about it."

In an interview Wednesday, Castillo defended the new rule, which he said in typical cases might cut 16 to 24 months from a sentence of 6 to 9 years.

"I think crack is a drug that is much more addictive and more troublesome than powder cocaine," Castillo said. "But does that justify the current penalty system? Absolutely not."

Castillo said the commission had found no intentional discrimination in the crack cocaine laws, but "there's no doubt that the racial demographics on paper look bad."

Attempts to push changes through Congress have failed. Former President Bill Clinton reportedly said in a recent speech that he regretted not pushing harder to eliminate the disparity during his administration.

'Politically courageous'

Critics of the current sentencing scheme say the commission's new rule doesn't go far enough, but it's still welcome.

"It's so hard to get any movement in the area of crack cocaine," said Julie Stewart, president of Families Against Mandatory Minimums. "We're delighted this has taken place."

The commission was "politically courageous," said Dan Hesler, an attorney with the Federal Defender Program in Chicago. "The Sentencing Commission has been willing to do what Congress has not been because no politician wants to stand up and say, 'I'm in favor of shorter sentences for crack dealers.'"

In response to Mukasey's concerns about violence, Castillo said federal judges would review each case and that no inmate would be released automatically.

On Wednesday, for example, Meyer asked U.S. District Judge David Coar to cut time from the 4-year sentence of Joshua Betts, who pleaded guilty in 2005 to participating in a drug conspiracy.

But Coar rejected the request, saying Betts had already benefited from a reduced sentence under his plea agreement.

"What Mr. Betts is asking for is a reduction beyond the 48 months," Coar said, "and I'm not going to do that."

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