By Brendan Kearney
The Daily Record
More on the Supreme Court this month
BALTIMORE, Md. — Stanley A. Ray worked at Wal-Mart until the day in August 1999 he reported for his 11¼-year federal prison term for dealing crack cocaine.
At this time last year, he thought his return to his native Baltimore, to his five children and the grandchild born during his term of incarceration in Lexington, Ky., was still years away.
Then he learned, first through the newspapers and later from his public defender, that he might be eligible for an express ticket to freedom.
Earlier this year, Ray received the standard two-level sentence reduction - 15 months in his case - under a retroactive amendment to the federal sentencing guidelines that took effect on Nov. 1, 2007. He got out on May 2.
Ray turned 46 on Thursday, when he answered the phone at his sister’s house just west of Gwynns Falls Park.
“It’s still an experience,” said Ray, who has been doing carpeting contract work - “nothing solid at this point” - in the months since he came home. Though Ray’s prospects on the outside after almost a decade behind bars are uncertain, one thing is clear: “I’m glad I’m out,” he said.
Ray is among 27 Marylanders released so far this year in the wake of the retroactive guidelines change, which was designed to close the historic (and some argue, racist) gap in punishment between crack and powder cocaine.
In addition, as of Friday, 113 other federal crack offenders from the state have won reductions in their sentences, ranging from one month to almost five years, according to U.S. Attorney Rod J. Rosenstein’s office.
While the U.S. Sentencing Commission initially estimated that only 279 state residents would be eligible for any reduction, that guess “hasn’t proven out,” said Barbara S. Sale, chief of the criminal division in the U.S. Attorney’s Office in Baltimore.
As of Friday, 598 prisoners have asked to have their sentences slashed.
“I’m shocked that I’ve been churning through 500 of them,” said Sale, who, with a paralegal, has handled most of the petitions for consistency and “economies of scale” reasons. “The only reason it has been with me is because I thought there would only be 279 of them. “
Keeping up
Sale, who said she has spent a quarter of her time this year handling the cases, is not the only one dealing with the unexpected glut of time-sensitive work. U.S. Probation and Pretrial Services, Maryland’s federal judges and court staff have all had their hands full implementing the new law of the land.
Rosenstein called it “a significant use of resources that we wouldn’t otherwise be using,” but added, “It hasn’t obstructed our other work. It’s probably requiring more work by defense attorneys. “
Perhaps no agency has hustled harder to crank the wheels of justice than the Office of the Federal Public Defender, which has been tasked with investigating every flagged inmate’s eligibility and then representing the vast majority of the eligible hundreds.
“Starting around January, there were four of us (assistant federal public defenders) who were dedicated to it through about the summer,” said Sapna Mirchandani, an assistant federal public defender in Greenbelt who represented Ray. “I wouldn’t say it was full time, but it wasn’t part time. It pretty much stopped everything in the office for the four people. “
Even Mirchandani’s boss, Federal Public Defender James Wyda, has personally handled cases; he had about 20 pending at the end of October. The office now has one attorney dedicated to fielding new petitions that continue to trickle in.
“We actually have personal relationships with clients and family members that no one else in the process” has, Wyda said. “What we’ve done a lot of work with is trying to make sure that we don’t miss anybody. Ferreting that out has been challenging. “
He estimated there would eventually be “about 100 more” reductions than originally projected.
While the inmates and some of their family and friends are happy to have them out ahead of schedule, other members of the community are less excited.
Robert F. Cherry Jr., a former homicide detective who was elected president of the Baltimore City Fraternal Order of Police Lodge No. 3 in September, said federally prosecuted crack dealers are generally a dangerous breed with long histories of brushes with the law.
“If you look at the work that the police and the prosecutors put into those cases only to see those people sent back at an earlier release date, obviously recidivism is going to be a concern,” he said. “If it went federal, that’s kind of an indication that not only is it a strong case but the defendant had some issues that the feds wanted to step in and give the state some help so the person gets some time. “
Rosenstein, too, said “a significant number of the offenders are likely to re-offend. “
“As time goes by, it’s inevitable,” the prosecutor said.
It is Felix Mata’s job to prevent that from happening, to the extent possible, by easing their return to society.
The national coordinator for U.S. Probation’s Defendant/Offender Workforce Development Initiative, Mata said the sooner-than-anticipated release of so many prisoners around the country precipitated “a big rush for the pre-sentencing units to review the case files for the offenders to find out what was going on with them, where were they returning back to, what kind of services were they needing. “
But citizens should not be frightened, he said.
“These are pretty much nonviolent offenders. This is not your typical person who tested as a high-risk individual, as a high-risk offense,” said Mata, who first made his name in the re-entry world in Baltimore, including serving as project director of a job center in Mondawmin Mall. “It would be very surprising for me to hear someone is terrorizing the community. “
Sentencing Commission analysis has revealed that the vast majority of crack offenders considered for reductions are black men, 30 years old on average, with criminal histories but whose federal rap sheet is not violent.
Of those who’ve received a reduction, about two-thirds had sentences at the minimum of their old range and were reduced to the minimum of the new range, the commission’s figures show.
Getting that chance required a confluence of executive, legislative and judicial factors.
The amended sentencing guidelines were passed by the commission, a presidentially appointed panel, in April 2007. Congress, which had objected to similar amendments in 1997 and 2002, allowed the change to take effect in November 2007.
On Dec. 10, the U.S. Supreme Court decided Kimbrogh v. U.S., a case out of the 4th U.S. Circuit Court of Appeals. Although the case involved a pre-amendment sentence, the high court found that the sentencing judge had discretion to consider the disparity between the punishments for powder and crack cocaine.
Based on Kimbrogh, the sentencing commission determined that its amendment should apply to other cases decided under the old guidelines.
Identifying who’s eligible
U.S. Probation kicked off the process by identifying the universe of potentially eligible inmates and sending their sometimes lengthy incarceration reports, which include behavioral, work and educational information, to the offices of the U.S. Attorney and the Federal Public Defender. The public defenders, at the direction of the judges, then reviewed each case for eligibility.
Sometimes, however, inmates write directly to the jurist who put them away.
“A lot of times they would write in and say, ‘Dear judge, please tell me how to get the crack reduction,’” Sale said.
Wyda said his office has eventually handled most of the cases, with only about 25 cases referred out to private panel attorneys when conflicts arise.
After interviewing the inmate and maybe family members, the public defender submits a short motion that gives the inmate’s sentencing details, educational and job accomplishments in prison, and plans post-release. The U.S. Attorney’s Office sometimes responds with reasons why the person should not be cut loose just yet. The judge makes the final decision.
“If they’re eligible and there’s no adverse information about conduct while in prison, then we agree to the reductions,” said Rosenstein, Maryland’s top federal prosecutor.
As of Friday, the U.S. Attorney’s Office has received 598 petitions: 140 have been granted, 117 have been denied, and more than 300 have to be adjudicated.
Most cases are decided “on the papers,” prosecutors and public defenders said, and hearings are rare. (Mirchandani said her only hearing happened because one of her clients had already been released to a halfway house and was able to appear.)
Common reasons why petitioners have been granted less than a two-level reduction in sentence include if a mandatory minimum sentence controls, or if the case is not eligible for any reduction - that is, if it did not involve crack cocaine, or if it involved more than 4.5 kilograms of crack.
“They thought they’d take a shot at it,” Sale said of unsuccessful petitioners. “Why not?”
Emerging issues
Three legal issues regarding eligibility have cropped up over the months of resentencing, all of which will eventually receive appellate consideration, lawyers involved in the cases say.
The first is whether judges presiding over resentencing can reduce petitioners’ prison terms by more than the two levels called for by the amended guidelines under the 2005 U.S. Supreme Court decision in U.S. v. Booker, which made sentencing guidelines advisory.
Public defenders have made this argument in multiple cases so far. No judge in Maryland has yet accepted the idea, Sale said. But judges in Washington, D.C., and Florida have, according to Mirchandani, which makes Wyda “optimistic” about its merit.
While some of the cases are on appeal, no appellate court has decided the issue yet, Mirchandani said.
The second issue is whether so-called career offenders - those with three federal drug offenses - should qualify for any reduction. In June, U.S. District Judge Peter J. Messitte denied Angelo A. Plater’s motion for a sentence reduction on the basis of his criminal history. Sale and Mirchandani, who represents Plater, submitted informal briefs to the 4th Circuit in September and are awaiting a decision or word as to oral argument.
Sale said there are up to 50 more inmates like Plater; their cases have been held in abeyance pending the appellate court’s action. Mirchandani said she did not know of any courts nationwide that have ruled on the issue in this context.
A final issue affects a smaller number of inmates - less than a dozen by Mirchandani’s estimate -who entered pleas under which they agreed with prosecutors about the sentence to be presented to the judge.
Prosecutors have argued those sentences were based on Federal Rule of Criminal Procedure 11(c)(1)(C), not the guidelines, and therefore should not be reduced. Defense attorneys countered that the sentencing guidelines have some bearing on the agreed-upon sentence.
The 4th Circuit heard arguments in one such case in September, Mirchandani said.
Meanwhile, prisoner petitions continue to trickle in.
“Some weeks it’ll be a dozen, other weeks none,” Mirchandani said.
Sale initially believed the whole process would be behind her by August. “Now I’m thinking maybe by the end of the year I’ll be done with them,” she said. But with at least half the cases yet to be ruled upon and new petitions crossing her desk “every day,” she acknowledges that might be “wishful thinking. "
Copyright 2008 Dolan Media Newswires