CRACK SENTENCES STILL TOUGH

Hard Time Given Even for Small Offenses Committed Before Rules Eased In August

The Fair Sentencing Act passed this summer knocked down the
requirement of long prison sentences for possession of crack cocaine,
but a quirk in how the law was written has resulted in some
defendants being sentenced under the old rules-and the situation
could continue for years.

Lawmakers who backed the change, with the support of the attorney
general and federal sentencing officials, aren't pleased with the
outcome. They said the new guidelines rectified an injustice born
during the drug wars of the 1980s. Instead, the snafu has created a
parallel universe where defendants face different rules for the same
crimes-sometimes in front of the same judge-because their offenses
were committed at different times.

The cause of the problem: Congress didn't say whether the Act should
apply to crimes committed before Aug. 3, when it was signed into law.
Penalties for any repealed law remain in place for acts committed
under that statute, unless lawmakers "expressly" establish otherwise,
according to a federal statute.

And because prosecutors have a five-year statute of limitations to
file charges for most federal crimes, people accused of committing
crack-related offenses before the revision are subject to the old rules.

A Justice Department spokeswoman said prosecutors were required to
seek the previous law's penalties for crimes committed before the
changes were enacted.

But prosecutors and judges have always had some discretion in the
crimes that are charged and sentences meted out. Congressional aides
said the thinking of lawmakers who supported the law without a
retroactive provision was that most prosecutors and judges would opt
to follow the new, more lenient rules, even for acts committed before Aug. 3.

On Aug. 5-two days after the bill became law-Michael Donnell
Sumerlin, 55 years old, was sentenced in a Birmingham, Ala., federal
court to life in prison on a crack charge because he had two prior
state marijuana-possession convictions. Under the new law, his
sentence could have been closer to 12 to 15 years, said Scott Brower,
the Birmingham attorney handling his appeal. "I think this is
something that's going to end up in front of the Supreme Court," Mr.
Brower said.

Nearly 5,700 defendants each year are sentenced for crack-cocaine
crimes, according to data from the U.S. Sentencing Commission, the
agency that sets sentencing guidelines for judges.

The new law was designed to ease a disparity in punishment for
crack-cocaine versus powder-cocaine crimes. In the mid-1980s,
lawmakers were worried about urban violence and generally held to the
belief that crack cocaine was more addictive than powder cocaine.
That theory has since been disproved.

The disparity also prompted charges of racism: Most people sentenced
for crack are black, while those sentenced for powder cocaine are
predominantly Hispanic, with whites and blacks to a lesser degree,
according to the U.S. Sentencing Commission.

Previously, a defendant faced a minimum five-year term if convicted
of possessing at least five grams of crack. Congress raised that
minimum to 28 grams. The new law also raised the 10-year-sentence
trigger for crack to 280 grams from 50 grams. Both moves bring the
law closer to rules for powder cocaine.

In addition, under the old law, a life sentence was mandatory if a
defendant had two prior felony drug convictions and then was found
guilty of possessing at least 50 grams of crack. This was omitted
from the new law.

Lawmakers didn't address whether the law should be retroactive out of
concern that a battle over this issue would scuttle the tenuous deal
that was reached to pass it, congressional aides said. Opponents of
making the law retroactive argued that doing so would lead to a flood
of appeals from people already sentenced.

A spokesman for Illinois Democratic Sen. Dick Durbin, one of the
bill's proponents, said defendants should no longer be sentenced
under a law that Congress has determined to be unfair. But Rep.
Sheila Jackson Lee (D., Texas), who championed the measure in the
House, said changing the law now to make it retroactive "is probably
a steep climb." She instead intends to hold hearings to press
prosecutors to exercise more latitude.

Rep. Bobby Scott (D., Va.) did introduce a bill Friday to make the
law retroactive, but it is believed to have no chance of passing in
the remaining days of Congress's lame-duck session.

Most judges are issuing sentences under the old crack-cocaine law for
crimes committed before Aug. 3.

Earlier this month, Hartford, Conn., U.S. District Judge Christopher
Droney sentenced a defendant to five years for possessing 14 grams of
crack, after prosecutors argued that he had no alternative. Judge
Droney said at the sentencing that he likely would have been more
lenient if he had any leeway.

Early next year, in Bridgeport, Conn., Steven Singh, 32, and Marvin
Conner, 32, will face the same five-year minimum sentence on the same
day, before the same judge, for two drug crimes of different
magnitude. Both pleaded guilty in October, Mr. Singh to possession
with intent to distribute 15.8 grams of crack cocaine and Mr. Conner
for intent to distribute 39 grams. Mr. Singh's offense occurred in
Feb. 2009, putting him under the old law, which doubled his likely
sentence. Mr. Connor's offense occurred at least partially after Aug. 3.

In Maine, U.S. District Judge D. Brock Hornby recently broke from the
pattern, ruling in October that he would sentence William Douglas
under the new law for an older crime. Mr. Douglas was convicted of
possessing 113 grams of crack. Under the old rules he faced 10 years in prison.

In his ruling, Judge Hornby rejected the argument that the harsher
law should be imposed, saying, "Congress stated its goal was to
restore fairness to Federal cocaine sentencing. But what possible
reason could there be to want judges to continue to impose sentences
that are not fair over the next five years while the statute of
limitations run?"

Prosecutors filed notice they planned to appeal.