A RARE DEAL, A SECOND CHANCE

Quiet End To Conflict Over Long Prison Sentence

To many people, the case of Karen Blakney has epitomized the problem with
mandatory sentencing laws.

Blakney, a recovering crack addict and single mother of nine, faced a
10-year minimum sentence for cooking cocaine in exchange for money to feed
her habit. A federal jury in the District convicted her in 1992. But the
trial judge believed she only deserved 30 months in prison. Twice an appeals
court overruled the judge and ordered him to send Blakney away for a decade
instead.

Now the case has concluded in a way few would have ever imagined. An
extraordinary -- and until now, unnoticed -- instance of collaboration
between prosecutors and defense attorneys has saved Blakney from a lengthy
prison stay. In a deal hammered out over months of negotiations, U.S.
Attorney Wilma Lewis and her assistants used an obscure rule of criminal
procedure to throw out Blakney's original conviction and substitute charges
under D.C. law, thus escaping the uncompromising grip of a mandatory minimum
sentence. Blakney's case is the latest chapter in the long-running battle
over mandatory minimums, a series of laws passed by Congress to counter a
steeply rising crime wave in the 1980s.

While most prosecutors say that mandatory minimums are an essential law
enforcement tool, the defense bar and even some members of the federal bench
say that they strip judges of discretion and often make it impossible to
tailor an appropriate punishment for individual defendants.

That's what makes the quiet resolution of the Blakney case all the more unusual.

The Office of the U.S. Attorney had pushed hard to lock her up for a long
stretch. And although criminal defendants strike deals with prosecutors all
the time, that usually happens before, not after, a person is convicted. "I
don't hear much about it, certainly not this far along in the process," says
Marc Mauer, assistant director of The Sentencing Project, a nonprofit policy
group.

Abbe Jolles, a D.C. lawyer who has represented Blakney for nine years, is
more voluble about the outcome of the case.

"It's a miracle," says Jolles, a sole practitioner. "In my many years of
practice, it's the thing I'm most proud of."

Yet some legal experts worry that such deals as the one struck for Blakney
undermine the goals of the system: namely, equal results for people who
commit the same crimes.

"As a principle, we think [mandatory minimums] are appropriate so at least
there's some standard level of punishment," says Paul Kamenar, executive
legal director of the Washington Legal Foundation. Kamenar notes that he is
not speaking specifically about the Blakney case.

Blakney is finishing out her probation and struggling to find a full-time
job and affordable housing for her family. She declined comment through Jolles.

A spokesman for U.S. Attorney Lewis referred a reporter to court documents.
In a statement filed in court shortly before the April 22 deal, Lewis
reiterated her support for mandatory minimums -- noting that prosecutors had
twice appealed Blakney's 30-month sentence -- but said their application now
would be a disservice.

"If the mandatory minimum sentence were imposed at this time, Ms. Blakney
would be required to return to incarceration for an additional seven and one
half years notwithstanding her 'exemplary' rehabilitative efforts and the
fact that she has nearly completed the sentence originally imposed upon
her," Lewis wrote.

She added: "The government submits that the unique facts and circumstances
of this case, including its unusual procedural posture, militate against
further incarceration of the defendant."

From the start, Blakney was a symbol of the war over sentencing policy.
Defense attorneys mobilized family members and media outlets to draw
attention to the case. The defense team took strength from Senior U.S.
District Judge Louis Oberdorfer, who bucked the D.C. Circuit and ruled it
would be cruel and unusual to impose a 10-year mandatory minimum on Blakney.
Eventually, Oberdorfer recused himself from the case; it was assigned to
U.S. District Judge Gladys Kessler in February 1998. By that time, Blakney
was out on probation and had served most of the sentence imposed by Judge
Oberdorfer. And she had managed to kick her drug addiction.

But she was up against the immovable wall of a mandatory minimum sentence.
There were few alternatives. She could not slip through a "safety valve"
meant for people with little or no previous criminal history. Blakney had
one prior drug conviction. And as a bit player in a drug ring, Blakney had
no evidence to share with the government in exchange for a reduced sentence.
As late as November 1998, prosecutors argued that there was no choice but to
send Blakney back to prison. But behind the scenes, they were working with
Jolles. The defense mulled over the idea of seeking a presidential pardon,
among other options. Finally, they settled on Rule 48 of the Federal Rules
of Criminal Procedure, which allows prosecutors to dismiss an indictment and
file it again later.

The two sides carved out a plea agreement: They would ask Kessler to set
aside the 1992 jury verdict and indict Blakney for violating the D.C. Code,
not federal drug laws. The crimes called for a sentence of 10 to 30 years,
but Kessler chose to suspend all but 30 months and to credit Blakney for
time served. Blakney remained on probation for five years and was ordered to
pay $200 to the D.C. Crime Victims Compensation Fund.

Rule 48 has been used sparingly in other parts of the country in similar
circumstances, a spokesman for Lewis says, pointing to two cases in the 9th
Circuit. As far as prosecutors are aware, it has been used only once in the
District, in a 1973 case called United States v. Ammidown. The Blakney deal
struck some in the U.S. attorney's office as both too lenient and unfair,
according to one legal source.

But pleas from Blakney's friends, relatives, and lawyers prevailed with Lewis.

ed.