Commission Considers Retroactive Easing Of Crack Cocaine Sentences

Tuesday, December 11th 2007, 1:05 pm

By: News On 6

WASHINGTON (AP) _ Buoyed by a Supreme Court ruling, some 19,500 federal inmates and their families, most of them black, are hoping the U.S. Sentencing Commission is ready to make its recent easing of crack cocaine punishment guidelines retroactive.

The seven-member commission, which provides guidelines for sentencing federal convicts, meets Tuesday to discuss retroactivity, and a vote is likely.

Inmate family representatives and other advocates said a Supreme Court decision Monday could only improve chances the commission would address the long-criticized disparity in sentences for crack and powder cocaine offenses. Crack is predominantly used by blacks; powder cocaine, predominantly by whites.

Making the guidelines retroactive is not supported by the Bush administration.

``Our position is clear,'' said Attorney General Michael Mukasey at a news conference Tuesday. ``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.

In two decisions Monday, the Supreme Court 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 19,500 inmates who might see their prison terms for crack offenses reduced if the commission approves retroactive easing. By contrast, just over a quarter of those convicted of powder cocaine crimes last year were black.

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

Under the commission's plan, retroactive sentence reductions would not be automatic. A judge would have to review each inmate to decide whether a reduction was merited.

``The Kimbrough decision is a tremendous victory for all who believe that the crack and powder cocaine disparity is unjust,'' said Mary Price, vice president of Families Against Mandatory Minimums.

Kimbrough's case, though, did not present the ultimate fairness question. 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.

Seventy percent of crack defendants get the mandatory minimum.

Kimbrough is among the remaining 30 percent who, under the guidelines, are supposed to receive even more prison time for trafficking in more than 5 grams of crack.

Neither the court's decision nor the commission's guidelines affect the minimum sentences, which only Congress can alter.

Calling the court decision a ``minor fix,'' U.S. District Judge Reggie B. Walton of Washington, said, ``The ultimate fix has to be done by Congress.'' Last month, Walton endorsed a retroactive easing of the guidelines on behalf of the Criminal Law Committee of the federal judiciary.

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.