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The Washington Post, Feb. 22, 2008
by Darryl Fears, Washington Post, Staff Writer
Most of the more than 1,500 crack cocaine offenders who are immediately eligible to petition courts to be released from federal prisons under new guidelines issued by the U.S. Sentencing Commission are small-time dealers or addicts who are not career criminals and whose charges did not involve violence or firearms, according to a new analysis by the commission staff.
About 6 percent of the inmates were supervisors or leaders of drug rings, and about 5 percent were convicted of obstructing justice, generally by trying to get rid of their drugs as they were being arrested or contacting witnesses or co-defendants before trial, according to the analysis being circulated on Capitol Hill by the commission to counter Bush administration assertions that the guidelines would prompt the release of thousands of dangerous criminals.
About one-quarter of these inmates were given enhanced sentences because of weapons charges, though the charge can apply to defendants who were actually not carrying a gun or a knife but were with someone who was armed.
About 18 percent of the offenders' sentences were reduced because they were arrested and charged for the first time, were forced into a drug ring by someone such as a boyfriend, were unwittingly caught up in a drug operation during a police raid, or for some other reason.
The largest group -- 41 percent -- consists of small-time crack offenders who do not fall under any of the criteria that would cause authorities to increase their sentences or have them reduced.
"What portion of these are violent and what portion of those are girlfriends just caught up . . . with their boyfriends and they're serving for decades, more than bank robbers and murderers?" said Rep. Robert C. Scott (D-Va.), who has been critical of the administration's attempts to overturn the U.S. Sentencing Commission's decision to reduce federal prison sentences for crack offenders and make that policy retroactive to cover current prisoners.
The figures are at odds with the characterization of the inmates by Attorney General Michael B. Mukasey, who would like Congress to pass legislation voiding the U.S. Sentencing Commission policy before it takes effect March 3.
"Many of these offenders are among the most serious and violent offenders in the federal system, and their early release . . . at a time when violent crime had increased in some communities will produce tragic but predictable results," Mukasey said at a recent House Judiciary Committee hearing.
The staff analysis indicated that about 6 percent of the inmates' sentences were increased because they were supervisors or leaders of a drug crew of four or more, 6 percent of prisoners' sentences were enhanced for arms specifications, and 1 percent were considered career criminals. The findings were consistent with a U.S. Sentencing Commission report to Congress in May that showed that 90 percent of federal crack cases did not involve violence. Only 5 percent involved a threat, and even fewer involved injury or death.
Crack offenders serve prison terms that are up to eight times as long as those of powder cocaine offenders because of a sentencing disparity mandated by Congress under the 1986 Anti-Drug Abuse Act. The law created a 100-to-1 ratio between crack and powder cocaine offenses, meaning that five grams of crack -- about the size of two sugar cubes -- drew the same mandatory minimum sentence as 500 grams of powder.
Many activists, federal public defenders, probation officers and federal judges have said the disparity is racially discriminatory. The overwhelming majority of crack cocaine offenders are black, while most powder cocaine offenders are white or Latino.
Under pressure, the commission moderately reduced the guidelines for future crack offenders in March. The guidelines went into effect in November after Congress declined to intervene. The next month, the commission decided to make the guidelines retroactive so that current inmates could petition to reduce their sentences.
The Justice Department opposed guideline reductions, but the commission pressed on. Last month, the commission created a list of 1,508 inmates who would be eligible for immediate release if their sentences were reduced under the guidelines and passed the names to the chief judge in each judicial district.
Michael S. Nachmanoff, a lawyer who studied the inmate list for the Eastern District of Virginia, which has the largest number of crack cases eligible for sentence reduction, and found that only 15 prisoners have a legitimate chance for release because of restrictions. The reductions are so moderate, he said, that the inmates would leave prison only a few months before they were scheduled to be released without them.
"We appreciate the commission's effort to identify people who are potentially eligible for release, but what we are finding is that the numbers are fewer than those identified by the commission," Nachmanoff said. "The suggestion that there will be many people released on March 3 is not borne out in the Eastern District of Virginia. These people aren't gang members. They're not overwhelmingly violent."
But that is how they were portrayed on Capitol Hill not only by Mukasey but also by Republicans on the Judiciary c Committee. "Many of these criminals are repeat offenders who possessed firearms during the commission of a crime," said Rep. Lamar Smith (R-Tex.).
Rep. F. James Sensenbrenner Jr. (R-Wis.) said his gut told him that "if these people are released from prison, it will go right back into the communities where they were trafficking crack."
Near the end of the hearing, Rep. Maxine Waters (D-Calif.) scolded Mukasey, saying that he misrepresented how the inmates would be released. They must return to the courts where they were tried and appear before judges who have vowed not to grant sentence reductions to convicts with violent histories, Waters said.
"Nobody's taking the key, unlocking the jails and saying, 'Everybody out.' That does not happen," Waters said.