Tuesday, March 4, 2008

The federal government yesterday freed the first of what could be thousands of federal inmates convicted on crack-cocaine charges to benefit from amended U.S. Sentencing Commission guidelines that retroactively reduced their sentences.

Four federal inmates in Virginia were the first to see freedom, taking advantage of the retroactivity of the commission amendment in December that set March 3 as the initial release date. However, Attorney General Michael B. Mukasey wants Congress to stop the releases.

Of the 19,500 offenders eligible nationwide for reductions in their sentences, the largest share of them — 1,944 — are in federal prisons in Virginia. Other judicial districts with high numbers are Texas with 1,677; Florida, 1,456; Illinois, 997; and North Carolina, 972. Those eligible for early release in Maryland total 279, while the District has 269 persons eligible under the guidelines.

The amended guidelines came in the wake of a 7-2 ruling in early December by the U.S. Supreme Court saying federal judges could issue shorter prison terms than federal guidelines recommended in cocaine cases — addressing a sentencing disparity for crack- and powder-cocaine convictions widely considered to be more punitive for blacks.

The seven-member commission voted several days after the court’s decision to amend federal sentencing guidelines under the Sentencing Reform Act of 1984, which authorized the commission to provide for retroactive effect of amendments that result in lower penalties for certain offenses or offenders.

Congress has six months during which it can reverse any of the recommendations or make them law, even though the panel’s decisions to free crack offenders take effect in the interim.

Of the 19,500 eligible inmates, as many as 3,800 could be released within the next 15 months.

Mr. Mukasey has opposed the retroactive review of cases, saying it could result in the release of inmates to communities not prepared to deal with them. He has described those eligible for reduced sentences as some of the “most serious and violent offenders” in the federal system.

Mr. Mukasey said nearly 80 percent of those eligible have prior criminal records and are “very likely to commit another crime;” that the average amount of crack trafficked by those eligible is more than 50 grams, roughly equivalent to 500 doses; and that less than 5 percent of them received a mitigating role adjustment at the time of sentencing, meaning the judges who sentenced them did not think they were peripheral players or helpless addicts forced into a drug ring.

“These offenders are often violent criminals who are likely to repeat their criminal activities,” Mr. Mukasey said in a speech last week. “Second, these statistics — all taken from the commission’s own study — undermine the allegations that there are great numbers of one-time crack users who were simply caught in the wrong place and the wrong time.”

Mr. Mukasey also said Congress should limit the retroactivity so that only first time, nonviolent offenders could have their sentences reduced, and the amount of the reduction could not surpass the two-levels allowed by the commission.

He also said that action by Congress would address the Justice Department’s public safety concern and allow any nonviolent offenders to be released early, and permit those who need it to get the benefit of the Bureau of Prisons’ pre-release programs that help prevent or at least diminish the incidence of recidivism.

“Honest men and women can disagree about what the appropriate sentences should be for these crimes, and how they should differ from sentences for other drug crimes,” Mr. Mukasey said. “The department is committed to being a part of those discussions and to helping develop fair and just punishment for crimes committed in the future.

“But we believe that any reforms in the area of crack sentences have to satisfy two important conditions: First, any reforms should come from Congress, not the Sentencing Commission; and second, reforms should not be applied retroactively.”

The old sentencing guidelines, which punish crack-related offenses more harshly than similar powder-cocaine crimes, have been widely attacked as anti-black. According to the Sentencing Commission, 82 percent of crack defendants last year were black compared with 9 percent who were white. For powder cocaine, 80 percent were white and 14 percent were black.

As a practical matter, Carl Tobias, law professor at the University of Richmond School of Law, said yesterday that Mr. Mukasey’s suggestions are what will happen.

“For example, the Eastern District of Virginia federal public defender filed 16 motions for early release of which judges granted eight,” he said. “I assume judges will carefully screen these requests.”

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