NEW LAW ON CRACK COCAINE COULD APPLY TO OLD CASES

WASHINGTON -- A year ago, a drug dealer caught with 50 grams of crack
cocaine faced a mandatory 10 years in federal prison. Today, new rules
cut that to as little as five years, and thousands of inmates not
covered by the change are saying their sentences should be reduced,
too.

"Please make this situation fair to all of us," prisoner Shauna
Barry-Scott wrote from West Virginia to the U.S. Sentencing
Commission, which oversees federal sentencing guidelines. "Treat us
the same."

The commission meets Wednesday in Washington to consider making the
new crack sentencing guidelines retroactive, a step that could bring
early release for as many as 1 in every 18 federal prisoners, or
approximately 12,000 inmates.

The commission has already received more than 37,000 letters on the
issue, most from inmates and their families and friends. Many of the
letters are form letters drafted by interest groups such as Families
Against Mandatory Minimums, but others contain personal pleas. A woman
from New York wrote to say her nephew should be "given another chance
at society." A mother from Illinois said her child was sentenced "very
harshly."

Prisoners have also been writing judges and public defenders, asking
if the new law might help them.

"Dear Judge Blake, I am forwarding this letter to you for your
assistance that concerns the new crack cocaine law that was just
passed," Steven Harris wrote to a federal judge in Maryland, asking
about his 10-year sentence for crack possession and possession of a
firearm during the crime. "I would like to know if this law will help
me."

Congress and President Barack Obama agreed in August to reduce the
minimum penalties for crack. But the law did not apply to prisoners
who were locked up before the change.

Michael Nachmanoff, the lead public defender in the eastern district
of Virginia, where about 1,000 prisoners would be affected, the most
of any area in the country, says his office has been getting about a
half-dozen calls or letters a month.

Nachmanoff, who will testify before the commission Wednesday, says his
office is prepared to act if the commission makes changes. And he says
anyone who worries that retroactivity would be going light on
offenders is wrong.

"All of these people will wind up serving long sentences," he said.
"This is really about fixing a really unfair problem that now
everybody recognizes was wrong."

Since the 1990s, advocates have complained that crack offenders are
treated more harshly than those arrested with powdered cocaine. Many
critics view the disparity as racial discrimination because black drug
offenders are more likely to be charged with federal crack offenses
and to serve longer prison terms than other offenders.

The Fair Sentencing Act, signed by Obama in August, attempts to remedy
that disparity by changing the amount of crack cocaine required to
trigger five and 10-year mandatory sentences.

Before the law was passed, a person convicted of possessing 5 grams of
crack cocaine - about the weight of five packets of Sweet'n Low -
automatically got sentenced to five years. Now it takes 28 grams to
trigger a five-year mandatory sentence, an amount more in line with
powdered cocaine. Possessing 280 grams of crack triggers a 10-year
sentence as opposed to the old standard of 50 grams - about the same
weight as 10 nickels.

Inmates who received the mandatory minimum sentence under the old
system will not be eligible for early release because only Congress
can make mandatory minimum sentences retroactive. But inmates who
received above the minimum could see their sentences reduced, and
others whose offense did not rise to the level of a mandatory minimum
could be eligible for earlier release, too.

The commission estimates that the average sentence reduction for
applicable inmates would be approximately three years.

Not everyone supports the proposal for retroactivity. The Fraternal
Order of Police opposed the law Obama signed and plans to oppose
retroactivity before the commission, arguing criminals were aware of
the penalties for their actions.

"They knew what they were doing. They went into it with their eyes
open," Jim Pasco, executive director of the Fraternal Order of Police,
which represents more than 300,000 law enforcement officers.

Prisoners charged with crack offenses have already had one recent
experience with retroactive sentence reductions. In 2007, the
commission revised the crack sentencing guidelines, reducing sentences
by an average of two years. Approximately 16,000 offenders had their
sentences reduced.

For the change to be made retroactive, four members of the six-member
commission would have to vote to support the idea. If that happens,
Congress could still reject or modify the guidelines until the end of
October.

Given that the Fair Sentencing Act passed Congress almost unanimously
and that the commission has acted previously to make sentencing
changes retroactive, Marc Mauer of the Washington-based Sentencing
Project said he is cautiously optimistic that the proposal for
retroactivity will be adopted.

The commission is expected to rule in the next few months, but that
ruling can't come soon enough for some prisoners.

"I love and miss my children very much," inmate Samuel Tirado wrote to
the commission from his New Jersey penitentiary. "And I hope to be
reunited with them sooner than 2022."