CRACK SENTENCE DEBATE REOPENED

Proof Whites, Blacks Treated Equally Asked

The highly charged debate over stiff federal sentences for selling crack
cocaine - which are overwhelmingly imposed on blacks - has been reignited
by a federal judge in Springfield, who has ordered federal prosecutors to
prove they are not letting white drug dealers off the hook.

The ruling, by US Magistrate Judge Kenneth Neiman, came in the case of a
black defendant whose attorney compiled data showing that no white person
was charged in federal court with selling crack cocaine in the four
westernmost counties of Massachusetts in all of 1998.

This in a region that is predominantly white, and at a time when national
statistics show that nearly half of all crack users are white.

Neiman made the ruling after lawyers for alleged crack dealer Michael Tuitt
Jr. and other black defendants contended that between January 1996 and last
May, only blacks and Hispanics were prosecuted for federal crack cocaine
offenses in the state's four westernmost counties.

Neiman ordered federal prosecutors to turn over records of crack
prosecutions for the last 3 1/2 years.

The ruling raised eyebrows in Springfield, where tensions between blacks
and the local police force have drawn the attention of the US Justice
Department.

''I couldn't believe the numbers when I saw them,'' said defense lawyer
Kevin Murphy of Springfield, who is planning a similar challenge for a
black client charged with dealing crack cocaine in Greenfield.

And Springfield NAACP chapter president Darnell Williams said: ''There are
significant suspicions here about how law enforcement treats the black
community.''

''They have to convince us... that blacks and Latinos aren't the only ones
pursued at the federal level, where the consequences are much more severe.
We hope that the government will be aggressive in saying no, that is not
the case,'' Williams said.

Owen Walker of the Federal Defenders Office in Boston said the ruling is
much talked-about by defense lawyers because successful claims of
''selective prosecution'' are rare.

To many, the ruling underscored an issue that defense lawyers, civil
libertarians, civil rights leaders and even some prosecutors have
complained of for years: federal drug laws passed in the mid-1980s punish
blacks more often and more severely than other ethnic groups.

''There has been an extraordinary increase in people in jail in this
country over the last 10 years, and an extraordinary number of them have
been young black males,'' said Martin G. Weinberg, a Boston lawyer and
board member of the National Association of Criminal Defense Attorneys.

While Neiman allowed Tuitt to go forward with his claim that blacks are
prosecuted more often for crack offenses, he rejected a second claim that
mostly black crack offenders are punished too harshly. This, despite the
fact that even the Justice Department has recognized that federal
sentencing guidelines are 100 times stricter for crack dealers than powder
cocaine dealers.

Neiman found that in Hampden, Berkshire, Franklin and Hampshire counties,
whites arrested by state and local authorities for crack offenses were
tried exclusively in state court, where sentences are far less severe and
there is no distinction between crack and powder cocaine.

''At bottom, it appears that whites are committing crack cocaine offenses
in the western section of the district court but are not being prosecuted
federally,'' Neiman wrote in his opinion.

US Attorney Donald K. Stern, whose jurisdiction includes the entire state,
vehemently denied that his office engaged in selective prosecution of drug
cases.

''No case, including this one, has been prosecuted on the basis of race and
ethnicity,'' Stern said.

Instead, he charged Tuitt's lawyers with citing statistics selectively.
''They have defined the universe in a way that's very self-serving,'' he said.

By not including Worcester County in their statistics, Stern said, the
defense lawyers were able to exclude 24 crack arrests made as part of
Operation Bar None, a 1997 sweep of bars in the Worcester area, which
netted nine white defendants.

Black and Hispanic defendants may appear more often in federal cases, Stern
said, because his office has a policy of going after gang members and
people with long criminal records.

''My general rule of thumb is to prosecute drug traffickers who have a
substantial impact on the quality of life in communities,'' he said.

Still, under Neiman's order, Stern's office will have to show evidence that
it is not discriminating. National statistics show that whites are
prosecuted rarely for crack dealing, even though they use crack more often
than blacks.

According to the National Office of Drug Control Policy, in 1998, 49
percent of the estimated 900,000-plus Americans who used crack at least
once in the previous year were white; just over 34 percent of crack users
were black, according to the national statistics.

By contrast, statistics kept by the US Sentencing Commission show that,
from 1996 through 1998, 85 percent of defendants in federal crack cases
were black. Only about 6 percent were white and 8 percent were Hispanic in
the same period.

Meanwhile, in federal powder cocaine cases, where the laws are 100 times
less strict, blacks made up only 30 percent of the defendants.

According to federal laws passed during an explosion of crack-related
murders and other crimes in the 1980s, a defendant convicted of possessing
5 grams of crack cocaine is sentenced to the same minimum, mandatory
five-year sentence as one convicted of possessing 500 grams of powder cocaine.

While backing Stern's claim that his office does not engage in selective
prosecution, former US attorney and federal sentencing commission member
Wayne Budd said the laws need to be changed.

''It has been a consistent injustice and I feel very bad about that,'' Budd
said.

While Budd was a member, the commission first suggested in 1995 that the
penalties for crack and powder cocaine convictions be made equal. Budd
called the recommendation ''one of the things I'm proudest of in all my
years of public service. ''

But it has been rejected repeatedly by the Republican-controlled Congress.

Those who have pushed for changes say reluctant lawmakers in Washington
live in fear of hostile campaign ads proclaiming ''Congressman John Doe -
Soft on Crack.''

Members of the Massachusetts congressional delegation, including House
Crime Subcommittee member Martin Meehan, a Lowell Democrat, and others have
supported compromises, such as reducing the crack vs. powder cocaine ratio
to anywhere from 15 to 1 to 3 to 1. But no such bill has made it out of the
Judiciary Committee in recent years, said Meehan's spokesman, William McCann.

Republicans instead have argued for raising the powdered cocaine sentences
to match the tough crack sentences or making no changes at all.

US Representative Steve Schiff, a New Mexico Republican, for example, has
said that the best way to avoid long prison sentences is to not possess or
sell drugs.

Stern said he and his boss, Attorney General Janet Reno, both support
'narrowing the gap'' between crack and powder cocaine sentences.

''There is a basis to keep some difference,'' Stern said. ''But the
guidelines have in fact resulted in disparity in sentencing and racial
impacts.''

Still, prosecutors argue that to look only at crack vs. powder cocaine is
misleading. The federal penalties for possessing and selling
methamphetamine - a drug of choice among mostly white and Hispanic dealers,
with effects similar to crack - are nearly as stiff as for crack, Stern said.

And, according to federal statistics, 34.3 percent of those convicted
nationally in 1997 of selling marijuana were white, compared to 6.2 percent
who were black.

''And I don't think anyone has said we should be prosecuting more black
marijuana dealers in Western Massachusetts,'' Stern said.