U.S. SUPREME COURT TO CONSIDER LOUISVILLE MAN'S CRACK-COCAINE
SENTENCE

Arrested in 2004 after a scuffle with police for possession of a
loaded firearm and 3.4 grams of crack cocaine, William Freeman of
Louisville faced a maximum penalty of life in prison.

So it wasn't a difficult decision for him to accept a plea bargain
from federal prosecutors requiring him to serve 106 months in prison,
including 46 months on the crack charge.

Then in 2007, responding to a mounting chorus of criticism that
harsher sentences for crack than powder cocaine disproportionately
punished African Americans, the U.S. Sentencing Commission reduced the
sentencing guideline range for crack.

As a result, 16,317 offenders, including 335 in Kentucky and 109 in
Southern Indiana, have gotten their sentences reduced, by an average
of 26 months.

But Freeman, 25, who would have had nine months trimmed off his term,
was denied that break because he had entered a fixed plea bargain. In
effect, a federal judge said, he had signed a contract with the
government to serve 106 months -- and it could not be broken.

Today, the U.S. Supreme Court will hear arguments in Freeman's case on
whether that is fair.

His lawyer, federal public defender Frank Heft Jr., says there is no
"legal, factual or sensible policy basis" for distinguishing offenders
like Freeman from the crack defendants who have received sentencing
relief. When the Sentencing Commission determines a sentence is unduly
harsh, Heft says in a brief, all defendants should have an opportunity
for a reduction.

But the Justice Department says that giving a break to offenders such
as Freeman would undermine plea bargaining, in which offenders agree
to plead guilty in exchange for more favorable sentences than they
likely would get if they went to trial.

The government says that plea agreements are an "essential component
of the administration of justice," and that when Freeman struck his
deal, he assumed the risk of missing out on any subsequent reduction
in the penalty for crack.

Under the law, most defendants sentenced for crack offenses can ask
the judge who sentenced them for a reduction, although the request can
be turned down if the judge finds the defendant poses a risk to the
community or for other reasons. About 35 percent of applicants have
been turned down nationwide, and about 50 percent of those in Kentucky.

Experts on federal sentencing, including Ohio State University law
professor Douglas Berman, who writes a blog on the subject, say
Freeman's case could affect "several hundred" to "a few thousand"
inmates who are serving long sentences for crack offenses.

Although 90 percent of defendants are convicted through plea bargains,
the case only applies to those whose cases were disposed of through
binding pleas in which the government and the defendant agree on a
sentence, rather than leave it to a judge's discretion. Such plea
bargains are relatively uncommon, according to Louisville defense
lawyers Mike Mazzolli and Scott C. Cox.

Freeman's case extends the controversial debate over the disparity
between punishment for crack versus powder cocaine.

From 1987 to 2007, the federal sentencing guidelines considered 1 gram
of crack to be equivalent to 100 grams of powder. For example, a
person found with a mere 5 grams of crack would face a five-year
minimum sentence, while a person with powder would have to possess 500
grams to face the same mandatory minimum.

Proponents of the tougher crack sentences said they were justified
because crack is more addictive and its trafficking has been more
violent. Critics claimed the disparity was racially discriminatory
because 80 percent of federal crack offenders were black.

Eighty-seven percent of the offenders who have gotten their sentences
reduced were -- like Freeman -- African American, according to the
Sentencing Commission.

The Supreme Court's review of his case is likely to turn on semantics
- -- whether his plea bargain was "based on" the sentencing guidelines.
That is because federal judges are allowed to reduce a sentence if it
was "based on" a guideline range subsequently lowered by the
commission -- an independent agency in the judicial branch.

Heft notes in his brief that Freeman agreed that his sentence would be
determined "pursuant" to the sentencing guidelines and that both sides
agreed that the sentence would be at the bottom of the 46- to 57-month
range then set out for the crack offense.

But the government claims the sentencing guidelines merely "informed"
the plea bargain and that Freeman and Assistant U.S. Attorneys Jo
Lawless and Amy Sullivan, who prosecuted the case, could have agreed
to a sentence below or above the guideline range.

The Justice Department says the plea bargain in fact was "based on"
the agreement for a 106-month sentence.

Barring defendants such as Freeman from receiving a sentence reduction
"prevents the defendant from obtaining an additional and unwarranted
sentencing benefit at the government's expense," the government says
in its brief.

It says Freeman already benefitted from the plea bargain by getting
only about nine years in prison despite a lengthy criminal record of
eight prior convictions.

The prosecution has won the first two rounds. In December 2008, U.S.
District Judge Edward Johnstone denied Freeman's request for a
sentence reduction, saying his sentence was based on the agreement,
not the guidelines.

The 6th U.S. Court of Appeals in November 2009 affirmed that ruling,
but other federal appeals courts have said offenders like Freeman
should have the opportunity to show they deserve the sentencing break.

The Supreme Court is expected to decide the issue before the end of
the year.

Freeman is serving his time at the high-security United States
Penitentiary-McCreary in Pine Knot, Ky., about 125 miles south of
Lexington. If the Supreme Court rules against him, he won't be
eligible for release until Nov. 8, 2012.