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Panel may cut thousands of prison terms

Early release of 19,500 inmates could result as officials try to address perceived unfairness in sentencing under federal cocaine laws.

November 12, 2007|Richard B. Schmitt | Times Staff Writer

WASHINGTON — Under pressure from federal judges, inmate advocacy groups and civil rights organizations, federal authorities are considering a sweeping cut in prison sentences that could bring early release for thousands of federal inmates.

The proposal being weighed by the U.S. Sentencing Commission would shave an average of at least two years off the sentences of 19,500 federal prisoners, about 1 in 10 in the 200,000-inmate system. More than 2,500 of them, mainly those who have already served lengthy sentences, would be eligible for release within a year if the rule is adopted.

Such a mass commutation would be unprecedented: No other single rule in the two-decade history of the Sentencing Commission has affected nearly as many inmates. And no single law or act of presidential clemency, such as grants of amnesty to draft resisters and conscientious objectors after World War II and the Vietnam War, has affected so many people at one time.

The far-reaching move is aimed at addressing what is seen as an unfair disparity in federal cocaine laws dating to the mid-1980s that have imposed much harsher punishment on crack cocaine users and dealers than in powder cocaine cases. About 80% of those sentenced on federal crack charges every year are African American.

The Justice Department is warning of dire consequences if the proposal goes through, including the possibility that returning thousands of serious drug offenders to the streets would compound a recent increase in violent crime across the country.

"The unexpected release of 20,000 prisoners . . . would jeopardize community safety and threaten to unravel the success we have achieved in removing violent crack offenders from high-crime neighborhoods," the department said in a letter to the commission this month.

The congressionally chartered commission, which sets sentencing guidelines for federal judges, has already adopted reduced penalties for new crack cases hitting the courts effective Nov. 1. That decision will affect about 4,000 a cases a year. The debate now is about its plans to make those changes retroactive to inmates. The seven-member commission is considering the proposal at a hearing Tuesday; a vote is expected next year.

Congress started enacting tougher penalties for crack offenders in the 1980s, at the height of public fears about spreading street violence associated with the drug, and amid concern that crack was more dangerous and addictive than powder cocaine.

The distinction became embedded in federal law and shaped the guidelines that the Sentencing Commission promulgated for two decades. For example, it takes 100 times as much powder cocaine as crack to trigger mandatory five- and 10-year prison terms under federal law.

Most experts now believe that the penalties exaggerate the relative harmfulness of crack compared with powder cocaine.

Another concern is that setting such relatively low thresholds for punishing crack offenders has led to the lengthy imprisonment not of major drug traffickers but of low-level street dealers, couriers and lookouts.

The disparity is under siege on several fronts. There is bipartisan legislation in Congress that would narrow the penalties for crack compared with those for powder cocaine. The Supreme Court is considering a case this term that would give judges even more discretion to reduce sentences in crack cases.

The widely differing treatment of crack offenders is "fundamentally unjust," said Reggie B. Walton, a federal judge in Washington.

As a top White House drug-control official in the 1980s, Walton advocated tougher sentences in crack cases. But the penalties have become too severe, he says. Walton is testifying at the hearing Tuesday on behalf of the policymaking arm of the federal courts, which supports the sentencing proposal.

Walton is greatly concerned that the distinction has eroded confidence in the courts, he says. In Washington, potential jurors often refuse to serve in crack cases, knowing that the penalties hurt African Americans more, he said.

He noted that a few years ago the commission made retroactive reductions in sentences for LSD offenders, who were mainly white. If it does not do the same for defendants in crack cases, he said, it could be accused of a double standard.

"If you are trying to send the message to the greater society that our process is a fair and just process, it becomes very difficult to say, Well, we lower the sentences retroactively for other types of drugs, but in reference to crack cocaine, which we know has had a significantly greater adverse impact on people of color, we are not going to do it," Walton said.

Advocacy groups for inmates, such as Families Against Mandatory Minimums, are being flooded with calls about the Sentencing Commission proposal. Mary Price, the general counsel of the Washington-based group, says a co-worker has two sons in prison who would benefit from the sentencing change.

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