New America Media, Commentary, Earl Ofari Hutchinson, Posted: Jun 06, 2011

 
U.S. Attorney General Eric Holder took another step forward in trying to right a horrendous wrong in the long running drug-reform fight. He announced that thousands of federal prisoners sentenced under the draconian and grossly unfair crack cocaine sentencing law may be eligible for early release.

The old law required that judges tack a minimum mandatory sentence of five years on anyone caught with crack cocaine. More than 80 percent of those sentenced for crack use are poor, ill-educated blacks.

Yet those caught with the same amount of powdered cocaine, mostly whites, often middle-class and suburban, get probation and referrals to drug diversion programs.

After years of prodding and pressure from groups advocating for drug reform and prisoner rights, as well as from families of prisoners locked up under the brutal law, Congress last year scrapped the old sentencing statute, and equalized the sentences for powdered and crack cocaine use.

Change Leaves Gaping Hole

Still, this change left a gaping hole in the system. It did not make the new, fairer sentencing retroactive. That leaves thousands of prisoners sentenced under the old law in legal limbo.

Holder says that situation may be rectified now--but the operative word is “may.”

There is still no guarantee that many of the prisoners, who in theory are eligible to have their sentences revised, will in fact have them shortened. For some, revised sentencing should lead to their release.

For now, Holder’s recommendation for the early release of many of the prisoners is only a recommendation. Several ranking GOP congressional members have voiced opposition to the release plan.

Whether Republicans’ vocal opposition will translate into active action to stall implementation of the release plan remains to be seen.

The next hurdle is the U.S. Sentencing Commission. It still must take a formal vote to approve the revised sentencing guidelines. The commission almost certainly will finalize the changes.
But conservative drug warriors may still try to rally support against immediate implementation of the sentencing change.

There’s another legal hurdle. And that’s the courts. A judge or the Bureau of Prisons can simply order a prisoner, who received a mandatory sentence for crack sale or possession, to be released. But that’s by no means a given.

In many cases, the prisoners or their attorneys will have to petition their sentencing judges for their early release. Based on past practices, some judges have modified sentences.

Federal Judges Outraged

In 2005, a large group of federal judges said it was time to change the sentencing law. They expressed outrage over the patently unfair disparity in sentencing drug offenders for virtually the same crime. They were also deeply resentful that the law hamstrung their discretion to impose sentences.

Mandatory minimums were clearly a slap at their judicial power. In several judicial districts, judges quietly rebelled, bent the rules and lightened sentences for some first time offenders.

In other cases, though, judges haven’t been willing to loosen the screws on sentencing. So the process for early release could become a drawn out, labyrinth of petitions, legal wrangling, dodges and even denials for many of the prisoners.

Federal prosecutors also could have a say in which prisoners are released and which ones aren’t.
In some federal districts, prosecutors have taken a hard line on all drug offenders no matter how petty or small their drug use. In other districts, prosecutors have focused on major drug dealers and cartels, rather than on the petty dealers and users. They are more likely to voice no opposition to the early release of small-time offenders.

But even if every prisoner who is eligible for release under the attorney general’s plan goes free, that still would affect fewer than 6,000 prisoners. These prisoners have absolutely no extenuating circumstances, such as a prior criminal conviction, and are the ones most likely to receive early release.

A Lifeline of Hope

Still, many first time drug offenders, who had the misfortune to get hit with the unfair sentences and faced long years of incarceration, have been given a lifeline of hope. The importance of this can’t be minimized; it opens a large window for the Obama Administration, Congress and the general public to rethink how the nation deals with drug use and abuse when the offenders are black, ethnic and poor.
President Obama’s election did reopen the door on efforts to do away with the disparities.

Holder would not have sharply called the sentencing disparities “dramatically more severe,” made the recommendation for early release of prisoners suffering under those disparities, and pushed hard an end to the drug sentencing disparities without the blessing of the White House.

It’s a good first step to right a glaring wrong, but again it’s only a good first step, not the final one to once and for all rid the system of the type of drug laws that mock the essential American concept of equal protection under the law.

Earl Ofari Hutchinson, an associate editor of New America Media, hosts the Hutchinson Report Newsmaker Hour on KTYM Radio in Los Angeles, streamed at ktym.com, podcast on blogtalkradio.com and Internet TV broadcast on thehutchinsonreportnews.com. Follow him on Twitter at http://twitter.com/earlhutchinson.