New guidelines put in place for crack cases
The Virginian-Pilot
NEW YORK — Marsha Cunningham was no drug dealer. But when authorities busted her boyfriend in the 1990s for selling crack and powdered cocaine, they also arrested her on a crack possession charge.
Her sentence: Fifteen years behind bars, only two less than her boyfriend got.
But Cunningham is now one of up to 20,000 inmates convicted of crack offenses who may see their prison terms reduced under new federal guidelines intended to bring retroactive fairness to drug sentencing.
The sentencing guidelines went into effect Monday - the result of a December decision by the U.S. Sentencing Commission to ease the way the system came down far harder on crack-related crimes than on those involving powdered cocaine.
Previously, a person with one gram of crack would receive the same sentence as someone with 100 grams of the powdered form of cocaine.
The disparity has been decried as racially discriminatory, because four of every five crack defendants in the United States are black, while most powdered-cocaine convictions involve whites.
“The sentences for crack cocaine have been one of the most corrosive and unjust areas of criminal law,” said Michael Nachmanoff, head of the federal public defender’s office for the Eastern District of Virginia, which includes courts in Norfolk, Newport News, Richmond and Northern Virginia. “It’s really undermined respect for the criminal justice system, not only in the African American community but throughout the country.”
Nachmanoff said four clients of his office were being released under the new guidelines Monday.
About 1,600 inmates are eligible for immediate release this week, but there is no way to know how many will ultimately be freed; each prisoner has to ask for a reduction and go before a judge. The remainder of the crack defendants will become eligible for release over the next 30 years.
The Sentencing Commission’s decision was supported by a recent U.S. Supreme Court ruling that dealt with the sentencing of a Norfolk man.
U.S. District Judge Raymond A. Jackson in Norfolk sentenced Derrick Kimbrough to four to seven years below federal guidelines for crack cocaine cases. That decision was upheld by the Supreme Court, which opened the door for thousands of other federal prisoners to appeal their sentences.
After the Kimbrough decision, the commission, an arm of the federal judiciary, ruled that those inmates sentenced to harsh punishments under the old crack cocaine guidelines, could have years cut from their prisons terms.
The U.S. Attorney’s Office for the Eastern District of Virginia said it did not have the number of cases affected in each court in the district.
However, data from the Sentencing Commission indicates that the Eastern District of Virginia had a larger share of crack cocaine offenders eligible for the sentencing reductions than did any other judicial district. The commission listed 1,404 offenders in eastern Virginia who were apparently eligible for sentence reductions, compared with 772 in middle Florida, the next-highest among judicial districts.
“As we do with all sentencing guidelines, the department will apply the new rule as written,” Justice Department spokesman Peter Carr said Monday. “We will be urging the courts not to go beyond the limited reduction that the Sentencing Commission has asked for and not to resentence defendants from scratch.”
The Justice Department said it is more worried about crack defendants set to come up for release later, saying they include a higher share of violent offenders and potential repeat offenders than the first batch.
Attorney General Michael Mukasey told a police group last week that nearly 80 percent of the crack defendants who could apply for a reduction in their sentences have some kind of criminal past.
“This tells us those who are eligible for early release are very likely to commit another crime,” Mukasey told the Fraternal Order of Police. “These offenders are often violent criminals who are likely to repeat their criminal activities.”
But Nachmanoff said few of the crack defendants are violent criminals.
“These are people who committed crimes and have been punished, and the Sentencing Commission is trying to ensure that they are not punished excessively,” he said.
Cunningham, 37, was sentenced in 1998 and has a projected release date of July 24, 2011. She filed a request last week for a sentence reduction, but it has not been ruled on yet.
Her aunt, Ruby Jones of Houston, said two of Cunningham’s grandparents have died since she went to prison, and her father is in a nursing home.
“He’s hoping that she gets out soon so that he can see her,” Jones said , “put his arms around her.”
Jones said that in phone calls to her family, Cunningham is upbeat but anxious about when she will be released.
“She’s been in there for so long,” Jones said. “For so long.”
This story was compiled from reports by The Associated Press and staff writer Tim McGlone.
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