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Sentencing reductions for crack convicts no certainty

Posted December 13, 2007 10:00 pm

Bruce Rushton

Decisions this week that could lead to sentence reductions for inmates convicted of crack cocaine charges don't amount to get-out-of-jail-free cards.

On Monday, the U.S. Supreme Court ruled that judges aren't bound by federal sentencing guidelines that specify harsh sentences for crack cocaine offenses as opposed to crimes involving powdered cocaine. The court ruled in favor of a Virginia offender who got 15 years despite guidelines that called for at least 19 years in prison. The judge in the case cited disparities in powder vs. crack penalties in going below the guidelines.

It takes 100 times as much powder cocaine as crack before sentences are equal under old guidelines, according to the U.S. Sentencing Commission, which last spring voted to reduce guideline sentences for crack offenses beginning Nov. 1. On Tuesday, the commission unanimously voted to allow inmates to retroactively seek sentence reductions.

The decision to allow retroactive sentence reductions could affect as many as 19,500 federal inmates, including 250 who were sentenced in central Illinois, the commission says. Just 13 inmates from central Illinois would be eligible for immediate release, according to an October report by the commission. Nearly 100 would have to wait six years or more before getting out, the commission reported.

Absent the commission's vote this week, deadlines for appealing sentences would have expired in thousands of cases. The commission acted after years of protests from inmates and their families who point out that 86 percent of inmates serving time for crack offenses are black.

"I've been getting a number of calls here today from people who are concerned about their situations," said Jon Gray Noll, a Springfield defense attorney who estimates he's handled about 100 cocaine cases in federal court since the guidelines took effect in 1989.

Nearly 64 percent of eligible federal inmates could get their sentence reduced by two years or less, the Sentencing Commission says. Eight percent could see sentences reduced by more than four years. Courts will start accepting motions for retroactive reductions in March.

But cell doors won't swing open en masse, Noll predicts.

For one thing, mandatory minimum sentences in federal law haven't changed. Only Congress can change mandatory minimums that kick in when a defendant has either prior convictions or at least five grams of crack. And police, Noll says, typically set up stings involving at least 50 grams -or slightly less than two ounces - of crack.

The mandatory minimum for 50 grams or more is 10 years in prison; offenders convicted of possessing five grams of crack must get five years. Sentencing guidelines for crack cocaine, however, often call for tougher punishment than the federal mandatory-minimum statute.

The big question, Noll said, is what, if any, effect the decision might have on offenders who were facing mandatory minimum sentences but got breaks because they cooperated with police and prosecutors after being caught. The difference can be huge if a defendant helps imprison other drug dealers, Noll said.

"I had a guy one time who was looking at life in prison," Noll said. "He provided huge amounts of assistance to the authorities and he ended with a 10-year sentence. They have no choice. If they say 'I don't know anybody,' which is usually a lie, or they're unwilling to cooperate, it's a pretty tough briar patch they're jumping into."

Reductions for eligible inmates aren't automatic. Rather, the sentencing court must reconsider cases on an individual basis.

"My sense is, when you look at the federal judges, at least in the Central District of Illinois, they're going to be hard-nosed," Noll said. "You're going to have to show that the case applies specifically to you."

J. William Roberts, former U.S. attorney for the Central District of Illinois, said the sentencing guidelines started out as an effort to ensure federal defendants got the same sentences, no matter where they committed their crimes.

"I spent a fair amount of time talking with the Sentencing Commission back then," said Roberts, who was U.S. attorney from 1986 until 1993. "We thought it was a good idea at the time."

But the guidelines and mandatory minimums, Roberts said, have gotten "awfully harsh."

"I applaud the current trend to put some discretion back in the hands of judges who generally, in my opinion, have handled it very well over the years," he said.

Roberts, who started his legal career as an assistant U.S. attorney in 1968 and is now in private practice, compared sentencing trends to the weather.

"If you don't like the way sentencing is going, just wait awhile and it will change," Roberts said.

Bruce Rushton can be reached at (217) 788-1542 or bruce.rushton@sj-r.com.

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