Drug ruling not likely to free many

FEW CRACK COCAINE PRISONERS ELIGIBLE FOR REDUCED SENTENCE

WASHINGTON -- When the U.S. Sentencing Commission last week reduced
sentences for imprisoned crack cocaine offenders--reversing years of
policy that treated crack far differently from powder cocaine--the
Justice Department and police groups bitterly criticized the action,
warning of a flood of criminals rushing out onto America's streets.

The change "will make thousands of dangerous prisoners, many of them
violent gang members, eligible for immediate release," said acting
Deputy Atty. Gen. Craig Morford. "These offenders are among the most
serious and violent offenders in the federal system."

But many experts say the reality is not so dramatic. Fewer than 3,000
prisoners nationwide will be immediately eligible for the relief. All
have already served considerable time. Each eligible prisoner will
have to petition the court for freedom--and the Justice Department can
oppose those petitions. Few offenders with violent histories are
likely to be released.

Ruben Castillo, a federal judge in Chicago who sits on the commission
that voted unanimously to apply the new crack sentences retroactively,
finds the rhetoric overheated.

"If you listen to the hyperbole out there, you would think the doors
are swinging open and individuals armed with submachine guns would be
leaving," Castillo said. A former prosecutor and a veteran of
Chicago's crack epidemic of the 1980s and 1990s, Castillo said, "I'd
be the last person in the world to open a jail-cell door for a serious
violent criminal."

Growing recognition

The tide had been moving in the direction of reducing crack penalties
for some time, as recognition grew that the distinction between crack
and powder cocaine did not hold up to strict scrutiny. Adding to the
complaints, those sentenced for crack offenses compared to powder are
disproportionately African-American.

What surprised some was the unanimity of the panel, which features
several of President Bush's appointees. The other surprise was that
the decision is retroactive, so the change would apply to more than
19,000 federal prisoners nationwide.

That bothered Atty. Gen. Michael Mukasey, who condemned the proposal
before the vote. The old cases, Mukasey said, were "handled on the
assumption that there was a certain regime in place for sentencing.
Whether you agree with it or not, it was there. And the cases were
planned around that assumption."

Clinton, Obama split

The issue has split the Democratic presidential candidates. Sen.
Hillary Clinton of New York opposes retroactivity, while Sen. Barack
Obama of Illinois supports it. In September, Obama said, "Let's not
make the punishment for crack cocaine that much more severe than the
punishment for powder cocaine when the real difference between the two
is the skin color of the people using them."

Others said the commission issued a precise formula for which
prisoners could be released, designed to ensure that few violent or
hardened criminals would be eligible. "What this changes is modest,"
said Kara Gotsch, director of advocacy for the Sentencing Project, a
group that supports reduced crack penalties. "These are low-level
offenders, people at the bottom of the drug market."

In specific cities, the impact is likely to be even more modest. Out
of the 19,500 prisoners eligible for release over the next few years,
377 of them, or 1.9 percent, are in the Northern District of Illinois.

Castillo, who helped build large-scale drug prosecutions in the
Chicago U.S. attorney's office in the 1980s, says the commission's
vote is recognition that the current strategy in the war on drugs is
flawed. Twenty years ago, Castillo said, "we were going after the
right defendants." Now, he complains that his docket overflows with
low-level street dealers.

"These people are very fungible," he said. "They're replaced the very
next day by someone else with no criminal background. ... We're not
making a dent."

But the Drug Enforcement Administration says it has seriously
disrupted the supply of cocaine from Central and South America,
causing the drug's street price to spike. The DEA also seized a record
118,311 kilograms of cocaine in 2005, despite having fewer resources
after the Sept. 11 attacks.

In the wake of the commission's vote, groups like the Fraternal Order
of Police are sounding the alarm. "These people weren't just low-level
mules," said Jim Pasco, executive director of the national
organization. "They were dealers. They were distributors."

The tough-on-crack sentencing policies played a key role in reducing
crime in the 1990s, he said. "I don't think it's any coincidence that
when these 20,000 individuals were incarcerated, the crime rate went
downward," Pasco said.

The prisoners' opportunity to petition for release--and the Justice
Department's chance to oppose it--will come after the commission's
amendment takes effect in March. The average inmate's sentence could
be lowered by 27 months.

But not every prisoner serving time for crack-related sentences will
be eligible for relief; those sentenced under statutes that deal with
career criminals, for example, will not be able to apply. And 5-year
minimum sentences remain in place. In the end, the decision in each
case will be left to the judge.

At a November hearing, Gretchen Shappert, a North Carolina federal
prosecutor, said her district would bear a disproportionate burden of
those eligible to be released, straining staffing and budgets.

"My concern is the impact on communities," Shappert said. "It will be
swift. It will be sudden and it will be, in my opinion, irreversible."