Commission votes to reduce sentences for drug offenders

WASHINGTON – The U.S. Sentencing Commission voted unanimously yesterday to allow some 19,500 federal prison inmates, most of them black, to seek reductions in their crack cocaine sentences.

The commission, which sets guidelines for federal prison sentences, decided to make retroactive its recent easing of recommended sentences for crack offenses.

Most of those eligible could receive no more than a two-year cut in their prison terms, but roughly 3,800 inmates could be released from prison within a year after the March 3 effective date of yesterday’s decision. Federal judges will have the final say whether to reduce sentences.

The commissioners said the delay until March would give judges and prison officials time to deal with public safety and other issues.

The commission took note of objections raised by the Bush administration, but said there is no basis to treat convicts sentenced before the guidelines were changed differently from those sentenced after the changes.

The sentencing commission recently changed the guidelines to reduce the disparity in prison time for the two crimes. The new guidelines took effect Nov. 1.

U.S. District Judge William Sessions of Vermont, a commission member, said the vote on retroactivity will have the “most dramatic impact on African-American families.” A failure to act “may be taken by some as particularly unjust,” Sessions said before the vote.

Four of every five crack defendants is black. Most powder cocaine convictions involve whites.

Even after the change, prison terms for crack cocaine still are two to five times longer on average than sentences for powder cocaine, the result of a 20-year-old decision by Congress to treat crack more harshly. The commission first said in 1995 that there was no evidence to support such disparate treatment.

Relatives of prison inmates filled the meeting room and applauded loudly following the 7-0 vote. But several family members and commissioners called on Congress to overhaul cocaine sentencing laws.

“The debate needs to shift from the Sentencing Commission to Congress,” said Julie Stewart, president and founder of Families Against Mandatory Minimums. “That disparity between crack and powder and all of its injustices continues.”

Several bills have been introduced to further reduce or eliminate the disparity. The Senate is expected to hold hearings on the legislation next year.

Attorney General Michael Mukasey restated the administration’s opposition to retroactivity before the commission voted.

“Our position is clear,” Mukasey, a former federal judge, said at a news conference yesterday. “We oppose it.”

The attorney general said the convicted crack offenders were sentenced under an existing standard and to change that standard retroactively dismisses any mitigating factors the sentencing judge considered when deciding how long a prison term to set.

In addition, the release of inmates would cause problems for communities whose probation and supervisory systems are not ready to receive crack offenders, he said.

Several commissioners said they expect judges will use their power to deny sentence reductions in some case.

“I fully expect that a number of individuals who are a danger to the community will not in fact receive any reduction in sentence,” said commission member Michael Horowitz, a former federal prosecutor.

Yesterday’s vote follows two Supreme Court rulings Monday that upheld judges who rejected federal sentencing guidelines as too harsh and imposed more lenient prison terms, including one for crack offenses.

In the crack case, Justice Ruth Bader Ginsburg’s majority opinion said Derrick Kimbrough’s 15-year sentence was acceptable, although guidelines called for 19 to 22 years. “In making that determination, the judge may consider the disparity between the guidelines’ treatment of crack and powder cocaine offenses,” Ginsburg said.

Kimbrough is black.

So are 86 percent of the inmates who might see their prison terms for crack offenses reduced after the commission approved retroactive easing. By contrast, just over a quarter of those convicted of powder cocaine crimes last year were black.

Congress wrote the harsher treatment for crack into a law that sets a mandatory minimum of five years in prison for trafficking in 5 grams of crack cocaine or 100 times as much powder cocaine.

Judges do not have the authority to impose sentences below the mandatory minimum or grant reductions below the minimum sentences written into the law.

Between 36,000 and 37,000 federal prison inmates, out of a population of 200,000, are serving time for crack crimes. The prisoners who are not eligible for shorter terms either already are serving the minimum sentence, were sentenced for possession of massive quantities of crack or are serving time under laws that apply to “career criminals.”

In previous years, the sentencing commission reduced penalties for crimes involving marijuana, LSD and OxyContin, which are primarily committed by whites, and made those decisions retroactive.

But those changes combined did not affect as large a group as did yesterday’s vote.