New law on crack cocaine could apply to old cases

WASHINGTON – A year ago, a drug dealer caught with 50 grams of crack cocaine faced a mandatory 10 years in federal prison. Today, new rules cut that to as little as five years, and thousands of inmates not covered by the change are saying their sentences should be reduced, too.

"Please make this situation fair to all of us," prisoner Shauna Barry-Scott wrote from West Virginia to the U.S. Sentencing Commission, which oversees federal sentencing guidelines. "Treat us the same."

The commission meets Wednesday in Washington to consider making the new crack sentencing guidelines retroactive, a step that could bring early release for as many as 1 in every 18 federal prisoners, or approximately 12,000 inmates.

The commission has already received more than 37,000 letters on the issue, most from inmates and their families and friends. Many of the letters are form letters drafted by interest groups such as Families Against Mandatory Minimums, but others contain personal pleas. A woman from New York wrote to say her nephew should be "given another chance at society." A mother from Illinois said her child was sentenced "very harshly."

Prisoners have also been writing judges and public defenders, asking if the new law might help them.

"Dear Judge Blake, I am forwarding this letter to you for your assistance that concerns the new crack cocaine law that was just passed," Steven Harris wrote to a federal judge in Maryland, asking about his 10-year sentence for crack possession and possession of a firearm during the crime. "I would like to know if this law will help me."

Congress and President Barack Obama agreed in August to reduce the minimum penalties for crack. But the law did not apply to prisoners who were locked up before the change.

Michael Nachmanoff, the lead public defender in the eastern district of Virginia, where about 1,000 prisoners would be affected, the most of any area in the country, says his office has been getting about a half-dozen calls or letters a month.

Nachmanoff, who will testify before the commission Wednesday, says his office is prepared to act if the commission makes changes. And he says anyone who worries that retroactivity would be going light on offenders is wrong.

"All of these people will wind up serving long sentences," he said. "This is really about fixing a really unfair problem that now everybody recognizes was wrong."

Since the 1990s, advocates have complained that crack offenders are treated more harshly than those arrested with powdered cocaine. Many critics view the disparity as racial discrimination because black drug offenders are more likely to be charged with federal crack offenses and to serve longer prison terms than other offenders.

The Fair Sentencing Act, signed by Obama in August, attempts to remedy that disparity by changing the amount of crack cocaine required to trigger five and 10-year mandatory sentences.

Before the law was passed, a person convicted of possessing 5 grams of crack cocaine — about the weight of five packets of Sweet'n Low — automatically got sentenced to five years. Now it takes 28 grams to trigger a five-year mandatory sentence, an amount more in line with powdered cocaine. Possessing 280 grams of crack triggers a 10-year sentence as opposed to the old standard of 50 grams — about the same weight as 10 nickels.

Inmates who received the mandatory minimum sentence under the old system will not be eligible for early release because only Congress can make mandatory minimum sentences retroactive. But inmates who received above the minimum could see their sentences reduced, and others whose offense did not rise to the level of a mandatory minimum could be eligible for earlier release, too.

The commission estimates that the average sentence reduction for applicable inmates would be approximately three years.

Not everyone supports the proposal for retroactivity. The Fraternal Order of Police opposed the law Obama signed and plans to oppose retroactivity before the commission, arguing criminals were aware of the penalties for their actions.

"They knew what they were doing. They went into it with their eyes open," Jim Pasco, executive director of the Fraternal Order of Police, which represents more than 300,000 law enforcement officers.

Prisoners charged with crack offenses have already had one recent experience with retroactive sentence reductions. In 2007, the commission revised the crack sentencing guidelines, reducing sentences by an average of two years. Approximately 16,000 offenders had their sentences reduced.

For the change to be made retroactive, four members of the six-member commission would have to vote to support the idea. If that happens, Congress could still reject or modify the guidelines until the end of October.

Given that the Fair Sentencing Act passed Congress almost unanimously and that the commission has acted previously to make sentencing changes retroactive, Marc Mauer of the Washington-based Sentencing Project said he is cautiously optimistic that the proposal for retroactivity will be adopted.

The commission is expected to rule in the next few months, but that ruling can't come soon enough for some prisoners.

"I love and miss my children very much," inmate Samuel Tirado wrote to the commission from his New Jersey penitentiary. "And I hope to be reunited with them sooner than 2022."