Pubdate: Wed, 22 Dec 2010
Source: Wall Street Journal (US)
Copyright: 2010 Dow Jones & Company, Inc.
Contact:  http://www.wsj.com/
Details: http://www.mapinc.org/media/487
Author: Gary Fields

CRACK SENTENCES STILL TOUGH

Hard Time Given Even for Small Offenses Committed Before Rules Eased In August

The Fair Sentencing Act passed this summer knocked down the 
requirement of long prison sentences for possession of crack cocaine, 
but a quirk in how the law was written has resulted in some 
defendants being sentenced under the old rules-and the situation 
could continue for years.

Lawmakers who backed the change, with the support of the attorney 
general and federal sentencing officials, aren't pleased with the 
outcome. They said the new guidelines rectified an injustice born 
during the drug wars of the 1980s. Instead, the snafu has created a 
parallel universe where defendants face different rules for the same 
crimes-sometimes in front of the same judge-because their offenses 
were committed at different times.

The cause of the problem: Congress didn't say whether the Act should 
apply to crimes committed before Aug. 3, when it was signed into law. 
Penalties for any repealed law remain in place for acts committed 
under that statute, unless lawmakers "expressly" establish otherwise, 
according to a federal statute.

And because prosecutors have a five-year statute of limitations to 
file charges for most federal crimes, people accused of committing 
crack-related offenses before the revision are subject to the old rules.

A Justice Department spokeswoman said prosecutors were required to 
seek the previous law's penalties for crimes committed before the 
changes were enacted.

But prosecutors and judges have always had some discretion in the 
crimes that are charged and sentences meted out. Congressional aides 
said the thinking of lawmakers who supported the law without a 
retroactive provision was that most prosecutors and judges would opt 
to follow the new, more lenient rules, even for acts committed before Aug. 3.

On Aug. 5-two days after the bill became law-Michael Donnell 
Sumerlin, 55 years old, was sentenced in a Birmingham, Ala., federal 
court to life in prison on a crack charge because he had two prior 
state marijuana-possession convictions. Under the new law, his 
sentence could have been closer to 12 to 15 years, said Scott Brower, 
the Birmingham attorney handling his appeal. "I think this is 
something that's going to end up in front of the Supreme Court," Mr. 
Brower said.

Nearly 5,700 defendants each year are sentenced for crack-cocaine 
crimes, according to data from the U.S. Sentencing Commission, the 
agency that sets sentencing guidelines for judges.

The new law was designed to ease a disparity in punishment for 
crack-cocaine versus powder-cocaine crimes. In the mid-1980s, 
lawmakers were worried about urban violence and generally held to the 
belief that crack cocaine was more addictive than powder cocaine. 
That theory has since been disproved.

The disparity also prompted charges of racism: Most people sentenced 
for crack are black, while those sentenced for powder cocaine are 
predominantly Hispanic, with whites and blacks to a lesser degree, 
according to the U.S. Sentencing Commission.

Previously, a defendant faced a minimum five-year term if convicted 
of possessing at least five grams of crack. Congress raised that 
minimum to 28 grams. The new law also raised the 10-year-sentence 
trigger for crack to 280 grams from 50 grams. Both moves bring the 
law closer to rules for powder cocaine.

In addition, under the old law, a life sentence was mandatory if a 
defendant had two prior felony drug convictions and then was found 
guilty of possessing at least 50 grams of crack. This was omitted 
from the new law.

Lawmakers didn't address whether the law should be retroactive out of 
concern that a battle over this issue would scuttle the tenuous deal 
that was reached to pass it, congressional aides said. Opponents of 
making the law retroactive argued that doing so would lead to a flood 
of appeals from people already sentenced.

A spokesman for Illinois Democratic Sen. Dick Durbin, one of the 
bill's proponents, said defendants should no longer be sentenced 
under a law that Congress has determined to be unfair. But Rep. 
Sheila Jackson Lee (D., Texas), who championed the measure in the 
House, said changing the law now to make it retroactive "is probably 
a steep climb." She instead intends to hold hearings to press 
prosecutors to exercise more latitude.

Rep. Bobby Scott (D., Va.) did introduce a bill Friday to make the 
law retroactive, but it is believed to have no chance of passing in 
the remaining days of Congress's lame-duck session.

Most judges are issuing sentences under the old crack-cocaine law for 
crimes committed before Aug. 3.

Earlier this month, Hartford, Conn., U.S. District Judge Christopher 
Droney sentenced a defendant to five years for possessing 14 grams of 
crack, after prosecutors argued that he had no alternative. Judge 
Droney said at the sentencing that he likely would have been more 
lenient if he had any leeway.

Early next year, in Bridgeport, Conn., Steven Singh, 32, and Marvin 
Conner, 32, will face the same five-year minimum sentence on the same 
day, before the same judge, for two drug crimes of different 
magnitude. Both pleaded guilty in October, Mr. Singh to possession 
with intent to distribute 15.8 grams of crack cocaine and Mr. Conner 
for intent to distribute 39 grams. Mr. Singh's offense occurred in 
Feb. 2009, putting him under the old law, which doubled his likely 
sentence. Mr. Connor's offense occurred at least partially after Aug. 3.

In Maine, U.S. District Judge D. Brock Hornby recently broke from the 
pattern, ruling in October that he would sentence William Douglas 
under the new law for an older crime. Mr. Douglas was convicted of 
possessing 113 grams of crack. Under the old rules he faced 10 years in prison.

In his ruling, Judge Hornby rejected the argument that the harsher 
law should be imposed, saying, "Congress stated its goal was to 
restore fairness to Federal cocaine sentencing. But what possible 
reason could there be to want judges to continue to impose sentences 
that are not fair over the next five years while the statute of 
limitations run?"

Prosecutors filed notice they planned to appeal.
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