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
Bookmark: http://www.mapinc.org/find?140 (Rockefeller Drug Laws)

MANDATORY PRISON TIME IS BEING RETHOUGHT

Congress Explores Ways to Lessen Harshness and Disparities

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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