Pubdate: Thu, 09 Aug 2001
Source: Wall Street Journal (US)
Copyright: 2001 Dow Jones & Company, Inc.
Contact:  http://www.wsj.com/
Details: http://www.mapinc.org/media/487
Author: Gary Fields, Staff Reporter Of The Wall Street Journal

CONGRESS EXPLORES WAYS TO LESSEN HARSHNESS, DISPARITIES IN SENTENCING

WASHINGTON -- Mandatory minimum prison sentences, a fixture of the national 
drive to crack down on crime for almost two decades, are losing their 
allure among longtime proponents.

Lawmakers here and elsewhere are starting to rethink sentencing policies 
that require judges to impose fixed, substantial terms for certain crimes. 
Liberal Democrats for years have complained that long sentences for 
nonviolent criminals are disproportionately harsh on minorities and the 
poor. But in recent months President Bush, other prominent Republicans and 
influential judges have voiced their doubts about them too.

Now comes the hard part: determining the details of any proposed changes.

Asa Hutchinson, head of the Drug Enforcement Administration, said at his 
confirmation hearing last month that he is "reluctant to expand mandatory 
minimums" and supported calls for reviewing existing ones, but he offered 
no specifics. New York Gov. George Pataki recently proposed rolling back 
the stiff sentences his state imposed decades ago under Gov. Nelson 
Rockefeller, but the proposal was lambasted by some as still too harsh.

Alabama Sen. Jeff Sessions, one of the GOP's most conservative crime hawks, 
is drafting legislation to tackle the thorniest minimum mandatory issue -- 
the disparity between harsh punishments for crack and lighter ones for 
powder cocaine.

But a debate is raging over whether to ease up on crack or clamp down on 
powder. "A refinement of the sentencing guidelines shouldn't be seen as 
giving up on drug enforcement," says Sen. Sessions, who is seeking to 
reduce the sentencing disparity.

Advocates of change see the senator as a key convert. "He is the 
Nixon-goes-to-China guy," says Julie Stewart, president of Families Against 
Mandatory Minimums. "Only a Republican can suggest making sentences fair 
[and] Sen. Sessions is perfect for this."

The U.S. Sentencing Commission also waded into the issue last month by 
announcing plans to revisit its most controversial guidelines -- those for 
sentencing drug crimes and for weighing prior offenses -- during the next 
year or two.

The commission will consider raising the quantities of drugs that trigger 
longer sentences, "so not so many people are swept into this 
mandatory-minimum setup," says commission Chairwoman Diana E. Murphy, a 
judge on the Eighth Circuit Court of Appeals in Minnesota. "Whether 
something will get through, it's too soon to say." Proposals by the agency 
automatically take effect as mandatory guidelines unless Congress passes a 
law to block them, which it rarely does.

The decades-long crackdown on crime reached its peak in 1984, when Congress 
approved the Sentencing Reform Act. It made sentences more certain and 
uniform by abolishing federal parole and creating the Sentencing Commission 
to set guidelines for federal crimes, under which 400,000 defendants have 
been sentenced so far. In 1986 Congress also imposed harsh minimum 
sentences for small amounts of crack, which legislators at the time 
considered more dangerous than powder, and for other crimes. And over the 
years Congress drastically raised punishments for repeat offenders, 
mirroring state anti-crime efforts.

While many attribute the drop in crime rates in recent years to tough 
sentences, the laws also have resulted in what even some crime hawks agree 
are disproportionately harsh prison terms in some cases. Prison 
overcrowding and the spiraling cost of building new cells also have fueled 
concern.

The issue moved to the fore early this year partly as a result of the 
fallout over former President Bill Clinton's last-minute grants of 
clemency. Much of the criticism contrasted the most controversial 
beneficiaries, principally financier Marc Rich, with candidates many 
considered worthier -- nonviolent criminals serving lengthy sentences.

President Bush added his voice to the cause just before taking office. 
"Long minimum sentences for the first-time users may not be the best way to 
occupy jail space and/or heal people," he told CNN two days before taking 
office. "And I'm willing to look at that."

Helping to drive the issue are federal judges increasingly frustrated by 
the lack of discretion they are afforded. The most dramatic recent display 
of judicial pique involved the case of Shellie Langmade, who pleaded guilty 
in St. Paul to conspiracy to manufacture methamphetamine under a deal that 
included a sentence of almost seven years. A presentencing check turned up 
two misdemeanors for bad checks totaling $83.50, ratcheting up her sentence 
under the guidelines to 10 years.

Judge Paul Magnuson, a Reagan appointee and the chief district judge in 
Minnesota, called the result "patently unjust" and sentenced her to seven 
years anyway. Prosecutors appealed, and a panel of the Eighth Circuit Court 
of Appeals ordered the judge to impose the 10-year sentence. In January, 
Judge Magnuson refused and removed himself from the case.

"Langmade will be sacrificed on the altar of Congress's obsession with 
punishing crimes involving narcotics," he wrote. "I am so embittered by the 
government's merciless conduct that I simply could not be impartial upon 
resentencing." (Ms. Langmade later pleaded guilty to two lesser charges for 
an eight-year sentence.)

The biggest fight in Congress will be over cocaine.

Under current sentencing rules, federal defendants caught with five grams 
of crack cocaine are presumed to be selling and are given five-year 
sentences. To merit the same five years, powder defendants have to be 
caught with 500 grams -- more than a pound. African-Americans complain 
about that 100-to-1 disparity because crack is much more prevalent in urban 
black neighborhoods. In fiscal 2000, 84% of the 5,012 defendants sentenced 
for federal crack offenses were black.

In his CNN interview, President Bush endorsed efforts aimed at "making sure 
the powder-cocaine and the crack-cocaine penalties are the same."

That is easier said than done. The Sentencing Commission proposed 
eliminating the disparity in 1995, but the newly Republican Congress 
blocked the proposal, the first time lawmakers had rejected a commission 
recommendation. The Clinton Administration tried and failed to get the 
disparity lowered to 10-to-1.

Mandatory minimum opponents advocate raising the crack cocaine trigger, 
arguing that lowering the powder cocaine trigger would imprison more 
Hispanics, who make up half of the federal defendants sentenced for 
distributing powder. "If you lower the powder cocaine levels you're still 
going to send more people of color to prison," says Marc Mauer of the 
Washington-based Sentencing Project, which opposes mandatory sentences.

Supporters of mandatory sentences oppose raising the crack level. "If you 
want to make it consistent and address the racial issue, lower the level of 
powder cocaine to that of crack," says James Pasco, executive director of 
the Fraternal Order of Police.

Sen. Sessions says he's looking for a compromise that would cut the 
100-to-1 ratio to about 20-to-1 by both raising the crack trigger and 
lowering the powder trigger. But he and his ally in the effort, New York 
Democrat Charles Schumer, haven't been able to agree on specific numbers yet.
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