Pubdate: Mon, 12 Apr 1999 Source: The National Law Journal Website: http://www.nlj.com/ LAWYER ATTACKS CRACK SENTENCES IN LONG-SHOT FEDERAL CLASS ACTION A lawyer who has fought for reduced criminal sentences for nearly two decades has filed a long-shot class action in an attempt to mitigate thousands of harsh criminal sentences at once. Marcia G. Shein, of Atlanta's two-attorney Shein & Biggs, is trying to do--through civil litigation in a federal district court in Georgia--what dozens of other lawyers have failed to do in criminal proceedings: obtain a ruling that the different federal sentences for crack and powder cocaine violate the civil rights of black defendants. Under a law Congress passed when crack first swept through the nation's cities in 1988, a given amount of crack is treated at sentencing as the equivalent of 100 times as much of the virtually indistinguishable powder cocaine, from which it comes. Crack was also made the only drug for which federal law mandates imprisonment for simple possession. Because crack is typically sold in smaller amounts than powder cocaine, it is more readily available to lower-income individuals-- which has led it to be disproportionately consumed by blacks. Sentencing statistics reflect that disparity--and then some: In fiscal year 1996, 94.5% of federal crack defendants were black or Hispanic, and only 4.8% were white. Ms. Shein alleges that a further racial disparity exists in deciding whether to charge crack offenders in the state or federal systems--a decision that can make an immense difference because most states have substantially more lenient sentences for first-time crack offenders. In the Eastern District of Washington, the suit alleges, whites make up 9.3% of the federal crack defendants but 28.9% of state defendants. Ms. Shein concedes that every federal appellate court that has considered the issue has upheld the sentencing. Judges have said they found no evidence that Congress intended to create a racially discriminatory sentencing regime. But she argues that two subsequent reports undertaken pursuant to congressional order have changed the landscape: Both reports identified a disparate racial impact of the sentencing structure, and neither found any legitimate basis for the 100-to-1 sentencing ratio-- yet Congress refused to enact any of the remedial measures the studies suggested. "We now have Congress being willfully blind to something that was proven, in a study made at their own request, to be wrong," Ms. Shein said. "That's evidence of an intent to punish the race and not the crime." On March 22, the office of U.S. Attorney Richard H. Deane Jr., in Atlanta, filed a motion to dismiss the suit, arguing that, while its fundamental challenge is to the plaintiffs' sentences, they have not shown that they have exhausted their appellate remedies. The government also notes the unanimity among appellate courts concerning the constitutionality of the disparate sentences, and it argues that the purported class members lack the commonality required for class certification. The suit-- Graves v. U.S ., No. 99-213--is before U.S. District Judge Jack T. Camp. Judge Camp has not yet set a date for oral argument on the government's motion. - --- MAP posted-by: Rich O'Grady