Sentencing changes reduce crack cocaine jail terms

Sixteen years ago, Errol Washington was sentenced to more than 20 years in prison on crack cocaine charges -- nearly double what it would have been if it were powder cocaine.

But Washington, 43, may be among hundreds of Middle Tennessee offenders eligible for early release from federal prison after a significant change in federal sentencing policy.

Earlier this month, the U.S. Sentencing Commission drastically reduced sentences for federal inmates convicted of crack cocaine charges. After years of sentencing disparities -- it took 100 times as much powder cocaine to receive similar penalties as for crack cocaine -- the commission is set to release some 12,000 inmates an average of three years earlier.

Tennessee is estimated to have 360 offenders eligible for the sentence reduction, 41 of them in the Middle Tennessee District.

Not all crack cocaine offenders will be eligible, particularly those deemed by the courts to have been involved in a violent crime. A convict must file a motion in court for a resentencing, which will be decided by a federal judge.

U.S. Attorney Jerry Martin said his office still was analyzing potential Middle Tennessee cases and could not comment on the reductions.

Federal Public Defender Henry Martin said the change is a long time coming, but didn't go far enough.

"It's a huge improvement," he said. "What it means is there are people who are serving sentences way too long who will be able to have it reduced to just too long."

1 group punished more

Washington was convicted in 1995 of three drug charges and sentenced to 24 years and seven months in federal prison. Court records indicate that had he been caught with 647.5 grams of powder in Clarksville instead of crack cocaine, he probably would have been released from prison in 2008.

Patrick McNally, a Nashville defense attorney who challenged the crack sentencing laws on Washington's behalf, said the Sentencing Commission finally agreed with arguments he asked the U.S. Supreme Court to hear in the 1990s.

"There really was no greater harm to the public over powder cocaine," McNally said. "The reality was that the enhancement really was sentencing a particular segment of the population, greater than the population that used powder cocaine."

As the violent crack epidemic emerged in the 1980s, Congress passed tough-on-crime laws targeting the drug. In 1986, laws established penalties that could put offenders in prison for up to 20 years for as little as 5 grams of crack cocaine. An offender faces the same penalties, however, for as much as 500 grams of powder cocaine.

Critics have argued for more than 20 years that such harsh sentencing differences disproportionately affected inner-city African-Americans, leading to racial disparities in federal prison. The Sentencing Commission's analysis of eligible offenders appears to back up that assertion: It estimates 85 percent of the convicts who could be released early are black.

"Powder cocaine was favored by middle-to-upper-income Caucasians," McNally said. "Crack cocaine was favored by lower-income African-Americans. ... This 100-to-1 ratio had a real effect of disenfranchising the African-American population."

Money saved

Martin said there also will be a secondary benefit to the sentencing changes: cost savings. The Sentencing Commission estimates that the United States government could save $200 million in the first five years alone once the rules go in place Nov. 1.

The changes significantly increase the amount of crack cocaine to qualify for mandatory minimum sentences. For example, under the old law, it took only 5 grams to be sentenced to a minimum five-year sentence. Under the new rules, it takes 28 grams to be subject to the five-year minimum.

McNally and Martin said the public shouldn't worry about an influx of potentially dangerous criminals back onto the streets. Most of the offenders eligible, such as Washington, are far older than when they were convicted.

"Aging has shown to be a great indicator of reduced recidivism," McNally said.

Indeed, only about 21 percent of the 12,000 offenders nationwide will be eligible for immediate release on Nov. 1, only 56 of those in Tennessee.

From The Tennessean July 28, 2011