Crack inmates could be released from prison early

*Federal panel to decide whether new, more lenient guidelines should
apply retroactively to thousands of inmates*

Saturday, November 17, 2007
By BRENDAN KIRBY
* Staff Reporter*

Some 19,500 federal prisoners -- including nearly 300 who were sentenced
in Mobile -- could get out of prison early if a sentencing panel
approves a proposal under consideration in Washington.

The U.S. Sentencing Commission, which sets guidelines for prison terms
in federal cases, recently reduced the punishments prescribed for most
crack cocaine offenders. Those guidelines took effect this month.

The commission has not yet decided whether the new terms should apply to
people sentenced before Nov. 1. The panel, made up of appointees of
President Bush and President Clinton, held hearings this week on the
question but has not indicated when it will vote.

An analysis prepared by the Sentencing Commission estimates that 296
crack offenders sentenced in Mobile would be eligible for reduced
sentences, the 21st highest number of the country's 94 federal
districts. Of those, 37 could get out immediately, and another 39 would
be eligible for release within a year.

"It's significant. It's going to be two to three years on most guys. And
you have to realize, this goes back 15 years, so you've got lot of
people getting close (to their release dates)," said Robert Ratliff, a
Mobile criminal defense lawyer. "There's a big number waiting at the door."

The U.S. Department of Justice has opposed the changes, particularly
warning about the impact on the court system if the new rules become
retroactive.

Greg Bordenkircher, the first assistant U.S. attorney and criminal
division chief in Mobile, said his office's analysis suggests a smaller
number of locally convicted prisoners would be eligible for a sentence
reduction. He pegged the figure closer to 180 to 200.

At any rate, Bordenkircher said, it is more than coincidental that
declining crime rates over the past two decades have coincided with
longer federal sentences for drug crimes.

"There's a small part of the society that continually commits crime. If
you put that segment of society in jail, you see a corresponding drop in
crime," he said. "Crack has been a devastating scourge in the black
community, just as meth has been a devastating scourge in the white
community."

Disparity between crack, powder cocaine

The Sentencing Commission made the changes in an attempt to lessen the
disparity between sentences for crack cocaine and the drug's powder
form. The previous guidelines treated 5 grams of crack -- less than the
weight of a packet of ketchup -- the same as 500 grams of powder cocaine.

The 100-to-1 ratio has attracted a host of detractors since Congress
first passed sentencing guidelines in the 1980s.

"The whole crack-powder disparity is class- and race-based anyway. The
disparity has never made any sense," said Mobile lawyer Dom Soto. "It's
(the sentencing changes) probably going to go back and undo a lot of
injustices, especially those from the early days."

Added Soto's law partner, Arthur Madden: "It was just so obviously wrong."

If the commission makes the guideline changes retroactive, prisoners
likely would not automatically get reduced sentences but would have to
ask a judge. Chief U.S. District Judge Ginny Granade said it is
premature to say how that process would work, but lawyers in Mobile said
some past sentencing changes have been handled by written motions
without inmates even attending hearings.

Supporters of the changes said it is unfair to punish people more
harshly just because they were sentenced before Nov. 1, when the
guideline changes took effect.

"There's a total equity issue here and a moral imperative for the
commission to act retroactively," said Julie Stewart, who testified
before the Sentencing Commission as president of Families Against
Mandatory Minimums.

The Sentencing Commission has estimated that the average crack sentence
will drop from 10 years and a month to eight years and 10 months, a
15-month reduction. The panel estimates that the reduction for offenders
already serving crack sentences will be even greater -- 27 months.

It is unclear why the break would be bigger for existing inmates, but
some lawyers speculated that the numbers are skewed by defendants
sentenced before reforms that built in a "safety valve" for minor
offenders with no criminal records.

"Many a defendant got 405 months, 360 months back in the early days,"
attorney Dennis Knizley said.

Many opponents of long drug sentences openly express hope that the
guideline changes will build momentum for more systemic reform.

Stewart, who founded the Washington-based Families Against Mandatory
Minimums after her brother got a five-year sentence for growing
marijuana in his house, said the law should target defendants based on
their conduct. Currently, she said, some people get extraordinarily long
prison terms for relatively minor roles in conspiracies involving large
amounts of crack.

"Weight-based sentencing simply doesn't reflect culpability," she said.

Soto said the changes to the crack guidelines combined with a recent
Supreme Court decision that made the guidelines advisory have begun to
return discretion to judges for the first time in two decades.

"For a long time, all we were doing was holding people's hands as we all
jumped off a cliff together," he said. "This might be getting back to
where criminal law is interesting again."

Other opponents of federal sentencing practices contend the Sentencing
Commission reforms are far too timid.

"The government has spent $200 billion on interdiction and enforcement,
and cocaine is cheaper now that it was 30 years ago. You're never going
to do away with crack cocaine or any drug as long as it's profitable,"
said Mobile lawyer Robert F. "Cowboy Bob" Clark. "We're going to ruin a
bunch of lives."


© 2007 Press-Register

© 2007 al.com All Rights Reserved.