published Sunday, June 5th, 2011

Crack law changes ignite debate

Police searched Toney Robinson’s house on Aug. 14, 2009, and found 5 grams of crack cocaine, three loaded weapons, digital scales and more than $2,000 cash.

In federal court the next spring Robinson faced a 10-year prison term for the drug charge.

Police stopped Jackie Campbell for speeding as he drove near Chattanooga on Jan. 9, 2010. Officers found 170 grams of crack in his car.

Later that fall he was looking at more than 20 years in federal prison.

Both men pleaded guilty.

Chief U.S. District Judge Curtis Collier sentenced Robinson to six years in prison — three on the drug charge and three for a weapons charge.

U.S. District Judge Harry S. “Sandy” Mattice sentenced Campbell to 20 years for the drugs he carried.

In each case the judges cited the Fair Sentencing Act of 2010, which became law in November. The act aimed to reduce sentencing disparities in criminal cases involving powder and crack cocaine cases.

In the past, mandatory minimum sentences for crack sale or possession have been much tougher than sentences for the same amount of powder cocaine.

Campbell and Robinson, who are both black, are part of a nationwide debate on fairness in sentencing and whether recent changes should be applied retroactively to “pipeline cases” — people already in prison or those facing sentencing after the act passed.

Collier ruled that the Fair Sentencing Act applied retroactively in Robinson’s case. Mattice ruled the opposite in Campbell’s sentence.

Both cases have been appealed to the 6th U.S. Circuit Court of Appeals.

Unequal punishments

Since the late 1980s, a powder cocaine user would have to have 100 times as much of the drug as a crack cocaine user to fall into the same mandatory minimum sentencing range.

Someone could earn a term of five to 40 years for 500 to 5,000 grams of powder cocaine but only 5 to 50 grams of crack.

The revised guidelines of the Fair Sentencing Act reduce the disparity to 18-to-1.

Assistant Federal Public Defender Mary Ellen Coleman said drug users who are used to much lighter penalties in state court were sometimes blindsided by tough federal rules.

“These are just huge amounts of time, especially when these amounts in state court would make you eligible for a probated sentence,” Coleman said.

Coleman has worked with the Chattanooga federal defender’s office for five years and previously as a state-level public defender for seven years. She declined to comment on specific cases but spoke about the general issues surrounding crack-cocaine sentencing.

Critics charge that the old law disproportionately struck black communities. Studies show where crack cocaine use and sales are more common in black communities while whites are more likely to use and sell powder cocaine.

“That’s why Congress called it the Fair Sentencing Act,” Coleman said. “You’re picking up a portion of the population and disproportionately sentencing them.”

A study released this year by the sentencing commission estimated 12,835 imprisoned offenders who will be released over the next 30 years could have their sentences shortened if the act were applied retroactively.

Among those are 367 inmates in Tennessee and 451 in Georgia. Not all of those inmates would be released immediately or even very soon, said Ohio State law professor Douglas Berman, who studies sentencing and posts regularly on his website, sentencing.typepad.com.

He said most federal prison terms in drug cases are decades long and the act would reduce terms by an average of only three years.

There was no specific study on the pipeline cases available but Berman estimated between 2,000 and 2,500 from last year alone would likely fit the definition.

The true number of existing and future pipeline cases is “unknowable,” said Mary Price, vice president and general counsel for Families Against Mandatory Minimums.

Judges differ

Local federal judges have interpreted the Fair Sentencing Act for pipeline cases differently, and the U.S. attorney for the region doesn’t always agree with their rulings.

In the Robinson case, Collier wrote that Congress “clearly intended the FSA’s new mandatory minimum thresholds to apply to all defendants sentenced after the FSA’s enactment regardless of the date of the offense.”

Mattice cited the 6th Circuit in the Campbell case.

“The new law at issue here, the Fair Sentencing Act of 2010, contains no express statement that it is retroactive nor can we infer any such express intent from its plain language.”

U.S. Attorney General Eric Holder testified before the U.S. Sentencing Commission on Wednesday that President Barack Obama’s administration favors retroactivity, but not for cases involving weapons offenses or so-called “career criminals.”

But the U.S. Justice Department does not apply that to pipeline cases.

Bill Killian, U.S. attorney for the Eastern District of Tennessee, wrote in an email to the Chattanooga Times Free Press, “One issue that has arisen in our district is whether the FSA affects the mandatory minimums for conduct which occurred before its passage. We believe that it does not.”

He wrote that his office is appealing “a handful” of cases where a federal judge applied the law retroactively to determine a mandatory minimum sentence.

Higher power

Berman said Congress punted the retroactivity issue to the courts, mostly because the decades-long fight to pass the act may not have happened if advocates demanded retroactivity in writing.

“They made a strategic choice,” Berman said. “There was concern that if they had anything specific on this retroactive issue then they would increase the stalemate.”

Families against Mandatory Minimums President Julie Stewart agreed.

“It took a lot of lobbying to get to the point where we could get Republicans and Democrats to agree on anything,” she said. “I think it was just too scary for members of Congress to take both steps at once.”

Though reducing sentences may have been a tough sell to politicians, Stewart said that making the new law retroactive seems pretty simple.

“I think it’s simply a matter of fairness. If something has been found to be unfair, unduly harsh, for those who commit a crime after Aug. 3, 2010, then it’s still unfair and unduly harsh for the people in prison.”

While the sentencing commission deliberates, many people are caught in limbo.

“It’s going to take a long time to work its way through the courts,” Berman said.

Ultimately, the U.S. Supreme Court may have to decide. Federal appellate courts have split on the question — the 1st Circuit recently upheld retroactivity for pipeline cases while the 7th Circuit overruled it, Coleman said.

Even though Mattice ruled against retroactivity in the Campbell case, his opinion noted the moral difficulty of the issue.

“Two defendants, otherwise equivalently situated, may receive very different punishments because one committed his crime before the FSA went into effect and one after.”

about Todd South...

Todd South covers courts, poverty, technology, military and veterans for the Times Free Press. He has worked at the paper since 2008 and previously covered crime and safety in Southeast Tennessee and North Georgia. Todd’s hometown is Dodge City, Kan. He served five years in the U.S. Marine Corps and deployed to Iraq before returning to school for his journalism degree from the University of Georgia. Todd previously worked at the Anniston (Ala.) Star. Contact ...

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brokentoe said...

Why was there ever a need for stiffer sentencing for crack users in the first place? Especially when there are other drugs, meth being one, that are far more damaging and devastating to entire families and communities than crack ever was. The origins of the law itself was obviously racially motivated and should have never been put into place from the very start.

June 5, 2011 at 4:28 p.m.
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