REVIEW WITH CAUTION

A more equal approach to crack-cocaine sentencing over its
powder-cocaine equivalent has resulted from a December U.S.
Sentencing Commission decision and a Supreme Court ruling the same
month to the effect that federal judges may issue shorter prison
terms than federal guidelines recommend. It is vital that
equalization be properly administered. Ensuring that violent
criminals do not secure release is the only way to ensure that the
new policy is not "soft on crime."

On Monday, federal authorities released the first of an estimated
20,000 federal inmates convicted on crack-cocaine charges now
eligible for sentence reductions, 3,800 of whom could be released
within the next 15 months. Monday's approach is problematic because
it is too indiscriminate: It entails "retroactive review" of
released inmates, which means that offenders will be released
without adequate prior case-by-case screening. This is certain to
mean that too many violent criminals will be released. This is the
reason Attorney General Michael Mukasey is heard this week
criticizing the policy.

Now, an end to the famed "100-to-1 drug quantity ratio" of crack
sentences to powder-cocaine sentences was inevitable and, given
changing circumstances, desirable. The "100-to-1" ratio was a
product of the crack epidemic and the frightening rise of
drug-related violence it caused. Penalizing crack offenses
stiffly made sense at a time when such offenses
correlated incredibly highly with violent,
community-wrecking crime. But this tied the logic to statistics
which change. Today, using a crack-cocaine conviction as a proxy for
the most important and legitimate concerns about violent crime is
less useful because the historically high correlation of crack to
violence compared to powder cocaine and the same has diminished significantly.

As Judge Ricardo Hinojosa of the U.S. District Court for the
Southern District of Texas, who chairs the U.S. Sentencing
Commission, told the Senate Judiciary Committee three weeks ago, the
association of crack-cocaine offenses with the worst
aggravating conduct is about twice the correlation for
powder cocaine. This ratio was much worse in the 1980s at
the height of the crack epidemic. "Weapons involvement, broadly
defined, occurred in 27.0 percent of powder cocaine offenses and 42.7
percent of crack-cocaine offenses," he explained. Judge Hinojosa is
no bleeding heart: He is a Reagan appointee whose name
surfaced repeatedly on short-lists of President Bush's
likely Supreme Court nominees before Justice Samuel Alito's nomination.

These proportions are still very high, and warrant extreme caution
during any inmate release. In service of not creating new problems
as old ones are fixed, Congress now has six months to reverse the
recommendations or codify them into law. Mr. Mukasey recommends
limiting retroactive sentence reductions to first-time, nonviolent
offenders, which is sensible. These are the offenders who truly were
"caught in the wrong place and the wrong time" for unduly stiff
sentences. "Retroactive review" is an extremely unwise policy which
guarantees more violent criminals into the community. Law
enforcement and law-abiding citizens won't realize it until it is too late.