BATTLE SHAPES UP OVER CRACK SENTENCES

Waivers May Block Bids for Early Release

Crack dealers convicted in Western New York may face a legal fight
from federal prosecutors if they apply for early releases from prison
under new sentencing guidelines approved late last year.

Federal court officials took action last year to give a break to
people convicted on federal crack cocaine charges. They enacted
changes after years of complaints that crack sentences were
exceptionally harsh and that African-Americans from poor, inner-city
neighborhoods were the ones most likely to be convicted.

But U.S. Attorney Terrance P. Flynn may oppose requests to reduce the
sentences of previously convicted people, based on a legal waiver
that is routinely included in federal plea agreements filed in
Buffalo and Rochester.

Dating to at least 1997, hundreds of federal drug offenders in the
region have agreed to the waiver, promising that they would never ask
for reduced sentences -- even if future changes in the law allowed
them to do so.

"At this point, we haven't decided whether we will try to enforce the
waiver," said Assistant U.S. Attorney Joseph M. Guerra III, Flynn's
top aide for drug prosecutions. "We've talked about the situation
with [Justice Department] officials in Washington, and we're waiting
for guidance or directives from them."

The waiver could cause major problems for an estimated 200-plus men
and women who were convicted of federal crack cocaine crimes in this
region and are likely to apply for sentence reductions. Federal
judges will begin considering those requests March 3.

At least eight men and one woman already have filed court papers in
Buffalo or Rochester, asking for their crack sentences to be reduced,
according to Guerra.

Nationwide, as many as 20,000 people are expected to apply, according
to federal court officials. Most of the federal prosecutors
throughout the country do not require offenders to sign the kind of
waiver that is required locally, court officials said.

If Flynn's office decides to fight the requests for reduced
sentences, that will upset many defense attorneys and Frank B.
Mesiah, president of the Buffalo chapter of the National Association
for the Advancement of Colored People.

Too Harsh, Says Mesiah

By changing the guidelines, Congress and the U.S. Sentencing
Commission have already made a clear statement that people convicted
of crack cocaine crimes were being sentenced too harshly, Mesiah said.

"It would be wrong for [prosecutors] to challenge that," Mesiah said.
"If the U.S. attorney follows that policy, he will be adding even
more inequities to the system."

Similar comments came from Buffalo defense lawyers James P.
Harrington, Mark J. Mahoney and Herbert L. Greenman, all of whom
represent many local drug defendants.

"It would be unfair and unfortunate," Harrington said. "It would go
against the spirit of what Congress and the sentencing commission
were trying to do when they decided that these sentences should be reduced."

Harrington is the Buffalo representative on a national panel of
attorneys who represent federal defendants who can't afford lawyers.

Ultimately, federal judges will decide on a case-by-case basis if
defendants qualify for early release from prison.

"This issue [on the waivers] has not come before us yet. If it does
come before us, we'll decide on it," said Richard J. Arcara, chief
U.S. district judge for Western New York.

"There are a lot of complicated issues surrounding the changes in the
crack sentences. We're already looking at these issues, and we'll be
deciding these cases as expeditiously and fairly as we can. It will
be a high priority."

Judges will be looking at each individual's criminal history --
including the amount of drugs involved and whether any violent crimes
were also involved -- before deciding whether to reduce sentences, Arcara said.

One man who already has applied for a reduced sentence is Edward
"Blue" Burton, who was sentenced to 30 years in federal prison for
crack cocaine trafficking in December 1994. On the same day that his
federal drug sentence was issued, Burton received a much shorter
state court sentence -- 5 to 15 years -- for killing a man during a
fight over a card game. He was convicted of second-degree
manslaughter in the state case.

Crack Versus Powder

Burton said he never intended to kill the man, and he denied police
allegations that he was associated with one of the city's most
notorious gangsters ever, former LA Boys leader Donald "Sly" Green.

Since the 1980s, federal penalties for crack cocaine crimes have been
much more severe than those prescribed for traffickers of powdered
cocaine. In one often-cited example, a person caught with 5 grams of
crack would receive a mandatory five-year prison term. The same
person would have to be caught with 500 grams of powdered cocaine to
trigger the same sentence.

Congress said it enhanced the penalties for crack offenders in the
1980s because of the powerfully addictive nature of crack and because
many crack gangs throughout the country were extremely violent.

But civil rights groups have always maintained that the enhanced
penalties had an unfair impact on people from impoverished minority
neighborhoods where crack is usually sold and used.

"This is long overdue," Mesiah said. "You have poor people serving
much longer sentences because they were caught with crack cocaine,
instead of powder . . . That isn't fair."

Court officials said most of the convicts who will receive the
reductions are likely to see their sentences cut by two years or
less. The changes affect federal prisoners only.