RED RIBBON WEEK: NEW FEDERAL LAW CHANGES PENALTIES FOR CRACK-RELATED CRIMES

Congress Softens Stance After Years of Criticism

When the feds caught Eddie Tyrone Walker selling crack near a funeral
home eight years ago, the Richland, Ga., man was looking at serious
prison time. Even after cutting a plea deal, he was sentenced in 2005
to 12 1/2 years behind bars in light of his criminal history and the
steep federal penalties for crack-related crimes.

With no chance of parole in the federal system, an early release
seemed implausible for the confessed crack dealer. But Walker's
outlook has changed considerably over the past few years as the
government has softened its rigid stance on the cooked-down version of
cocaine.

Twenty-six months were chopped off Walker's sentence in 2008 after
sentencing guidelines were scaled back. Now, as new changes to the
crack guidelines are to become retroactive next month, the 44-year-old
is lobbying the courts for an immediate release.

Walker claims he is among an estimated 12,000 federal prisoners
expected to benefit from the extended scope of an amendment to the
Fair Sentencing Act of 2010, landmark legislation passed by Congress
last year that aimed to reduce controversial disparities between crack
and powder cocaine in federal sentencing.

Not every federal prisoner serving time for crack is eligible to seek
a reduction under the amendment, and many still will be required to
complete mandatory sentences due to the volume of crack in their
cases. Congress could intervene and stop the amendment from becoming
retroactive on Nov. 1, but that seems unlikely at this point, said
Julie Stewart, president and founder of Families Against Mandatory
Minimums, a nonprofit advocacy group based in Washington.

"It would be hard for them to do that because it requires a vote on
the amendment, and I don't expect that to happen," Stewart said.
"There haven't been very many times in the history of the U.S.
Sentencing Commission that any amendment they've given to Congress to
consider has actually been stopped."

Supporters of the Fair Sentencing Act hailed the law as a long-awaited
step toward leveling out the federal penalties for crack and powder
cocaine crimes. The law reduced from 100-1 to 18-1 the ratio between
crack and powder cocaine quantities required to trigger five and
10-year mandatory minimum sentences.

Twenty-eight grams of crack instead of 5 are now needed to mandate a
five-year minimum sentence, while the threshold for a minimum 10-year
sentence increased to 280 grams from 50 grams. The law also eliminated
the minimum mandatory sentence for simple possession of 5 grams or
more of crack cocaine.

"There's still a distinction between the two drugs, but we're happy
they made a change," Stewart said. "It was a strong vote."

Federal crimes involving crack cocaine have carried harsher penalties
than those involving cocaine in its powder form since 1986. Crack,
which causes a more intense high and is relatively cheap, was long
thought to be more addictive and dangerous than ordinary powder cocaine.

The mandatory minimum sentences sprang from sweeping legislation
passed shortly after the death of Len Bias, a basketball star drafted
by the Boston Celtics who overdosed on cocaine. The law also came amid
an epidemic of drug-related violence that prompted calls for tougher
penalties.

But the Anti-Drug Abuse Act of 1986 has since attracted a growing
chorus of critics who claim the law was an overreaction that subjected
low-level crack users to punishment equal or harsher than that for
drug kingpins dealing in powder cocaine.

Columbus defense attorney Bill Mason said the guidelines of old were
"grossly disproportionate" and often resulted in racial disparities
because blacks have historically been more likely to use crack than
powder cocaine.

"The government's justification was that crack was more addictive, and
therefore more dangerous, regardless of who has it," Mason said. "The
courts refused to remove the disparity, but now Congress has, so I
think that's a good thing."

Tina Hunt, an attorney with the federal defenders office in Macon,
Ga., said the changes approved by Congress will drastically improve
the fairness of the criminal justice system.

"I think the differences and unfairness in how people have been
treated thus far has really been horrendous," Hunt said. "Do I think
the Fair Sentencing Act could have gone further? The answer is yes."

Some prosecutors, however, have cautioned against the potential
dangers of releasing prisoners prematurely. They say applications for
reduced sentences will be time consuming for U.S. Attorney offices,
some of which are expecting a flurry of court motions.

The softening of federal crack penalties already has changed the way
some prosecutors approach cases. Federal prosecutors in Columbus, for
instance, have declined to handle at least one recent crack case,
telling investigators they could get more "bang for their buck" in
state court, according to an official. (The Fair Sentencing Act did
not change state laws.)

It's not clear how many local cases will be affected by the
retroactive amendment. The U.S. Sentencing Commission has projected
that 157 prisoners sentenced in the Middle District of Georgia -- a
broad jurisdiction that includes Columbus and stretches from Valdosta
to Athens -- will be eligible to apply for a reduced sentence. That
estimate is 87 prisoners for the Middle District of Alabama, which
includes Montgomery and Opelika.

Average reductions will be about 37 months for eligible defendants.
The Bureau of Prisons has said the retroactivity of the amendment
could save more than $200 million over the next five years.

Ellen S. Moore, chief of the U.S. Probation Office in Macon, said
officials have identified about 20 prisoners sentenced in the Middle
District of Georgia who may be eligible for immediate release. She
added that "it is the judge's ultimate decision after considering a
number of factors whether or not they are released
immediately."

"At this time, I cannot disclose how many of these defendants may be
from the Columbus division," Moore wrote in an email.

Walker, the Stewart County crack dealer, was so eager to ask the court
for early release that he filed a motion on his own behalf three weeks
before the Nov. 1 effective date of the retroactive amendment.

Prosecutors previously have argued that Walker's history of using and
selling illegal drugs makes him a danger to the community. But Walker
claims he's been a "model inmate," furthering his education and
participating in a drug abuse program in prison.

U.S. District Court Judge Clay D. Land said in a ruling that he lacked
the authority to reduce the sentence until the amendment becomes
retroactive next month. Land denied the motion as premature, but
without prejudice -- meaning Walker may try his luck again.