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FARAI CHIDEYA, host:

From NPR News, this is NEWS & NOTES. I'm Farai Chideya.

Drug offenders tried in federal court may get shorter prison terms. Thanks to a pair of rulings by the Supreme Court this week. Now, in the wake of those rulings, the U.S. Sentencing Commission is voting on a key issue today.

What's on the table? Whether people who have already been convicted of crack cocaine possession will get a chance at a shorter sentence.

In a moment, we'll talk with Michael Rushford, president and CEO of the Criminal Justice Legal Foundation.

But first, we've got Marc Mauer, executive director of The Sentencing Project.

Marc, how are you doing?

Mr. MARC MAUER (Executive Director, The Sentencing Project): Good. Nice to be here.

CHIDEYA: So tell us about the case of Derrick Kimbrough. He's a black Iraq war veteran sentenced to 13 years for crack cocaine possession when the guidelines called for more. Explain his case and why it's significant.

Mr. MAUER: Well, basically, the case gets at the issue, both of judicial discretion, how much discretion should a sentencing judge have to consider a range of factors. And in this particular case, the crack cocaine penalties, which are very severe, passed by Congress 21 years ago, far more harsh than powdered cocaine.

In the case of Mr. Kimbrough, he'd never been convicted of a felony previously. He was a military veteran. He'd been employed, got involved in drugs, started selling powdered cocaine, then made a crack cocaine sell. He was looking at -between 19 and 22 years for his first offense under the federal sentencing guidelines.

The judge in the case looked at that, and his term was, that was a ridiculous sentence given Mr. Kimbrough's background and the crime. And so he sends him instead to 15 years, which was the minimum he was required to impose because of mandatory sentences. And the question was, should the judge have the ability to depart below the guidelines based on the crack cocaine sentencing disparity and the policies around that.

CHIDEYA: So you've got this ruling by the Supreme Court. You had another one that dealt with a case that had to do with ecstasy. Is this a real turnabout in drug policy? Is this - how significant is this?

Mr. MAUER: Well, I think it's very much moving in a different direction now. Some of this continues, decisions of the Supreme Court in the last several years, where you've seen overlap between affording judges greater discretion at sentencing so that the guidelines are not so overly restrictive as they have been. But I think it also represents an awakening among many policymakers and the public that are one-size-fits-all approach to drug policy, which is largely consisted of long prison sentences has not been effective.

Far too many of those crack cocaine and powdered cocaine offenders are low-level offenders and so we're using up very expensive prison space to incarcerate low-level offenders. This has virtually no impact on the availability of drugs. It's tremendously expensive and diverts attention of resources from other approaches to drug problems.

CHIDEYA: So today, you have this vote by the U.S. Sentencing Commission, this question of whether or not these new sentences will be allowed to be applied retroactively to people who are already in jail. Explain a little bit about how many people could be affected by that.

Mr. MAUER: Well, essentially, there are an estimated 19,500 people currently serving a crack cocaine sentence in federal prison who could be affected by this proposal.

On November 1st, guideline amendment went into effect from the Sentencing Commission, that from here on out will reduce the sentences of people convicted of a crack cocaine offense. But the key question today is whether it should be applied retroactively. And as many people look at it, the question essentially is, should someone sentenced on October 31st receive a couple of years more in prison than somebody sentenced the following day in November 1st? And it really raises questions of fairness and justice. And if we've recognized the policy was overly punitive today, why should that not also be the case for people who are previously sentenced?

CHIDEYA: How will this affect race in the criminal justice system, if at all?

Mr. MAUER: Well, race in the criminal justice system is a very broad issue, and it starts, you know, at the point of arrest, and it works away through the system. But there's probably no area where we've seen it more egregiously played out in the case of crack cocaine sentencing.

More than 80 percent of the people convicted of a crack offense in federal court are African-American. This is a higher proportion and the number of African-Americans who use or sell crack cocaine and has to do with a combined effect of law enforcement and sentencing policy. And once people are arrested for these crimes, we've had this whole generation of these extremely harsh crack cocaine sentencing laws. You can get five years in prison for possessing as little as five grams of crack, the weight of about two sugar packets.

So the combined effect has been just enormous on African-Americans. Will this eliminate racial disparity from the justice system? Of course not. But I think it's both, potentially, an important symbolic step and a very practical step towards reducing some of the most extreme dynamics we have seen and sending a message, I think, that the justice system needs to be fair and just in its application.

CHIDEYA: So this is the federal level; there's also state charges. It's not going to affect the state charges directly. But do you think the conversation that all of these changes is inspiring could eventually trickle down to the state level?

Mr. MAUER: Well, I think there's no question that it will. You know, we're receiving tremendous national tension being devoted to this issue. States have their own policies regarding crack cocaine or drug policy, broadly speaking. And there's a whole range of effects that we see.

I think we've seen a movement in recent years, certainly, at the state level, where there is much more tension now and change in policy beginning to take place and a recognition that it's one thing to lock up drug kingpins in prison; it's a quite another thing to say that we should have tens of thousands of low-level drug offenders incarcerated.

And so both in terms of sentencing practice and policy, we're seeing now a shift towards greater use of treatment, a greater use of drug courts, essentially not using prison as their first option, but relying on treatment as their first option…

CHIDEYA: Marc…

Mr. MAUER: …of appropriate cases.

CHIDEYA: Marc, thank you so much.

Mr. MAUER: Thanks for having me.

CHIDEYA: Marc Mauer is executive director of The Sentencing Project. And he joined us from NPR's headquarters in Washington.

Now, we've got Michael Rushford. He is president and CEO of the Criminal Justice Legal Foundation.

Michael, welcome.

Mr. MICHAEL RUSHFORD (President and CEO, Criminal Justice Legal Foundation): Nice to be here.

CHIDEYA: So listening to Marc, your organizations have disagreed on cases before. You've locked horns over three strikes in California. How do you feel about this issue compared to what he just said?

Mr. RUSHFORD: The disparity has been a problem for two decades. And a lot of people in law enforcement, on the law enforcement side have tried to encourage the Congress to adjust the disparity. The 100 to 1 ratio on crack to powdered cocaine is just ridiculous and good federal judges - and I mean, good that they follow the law and tried to follow the guidelines, had problems with sentencing offenders who had five grams of crack to 15 to 20, 25 years.

So the disparity has been a problem. And there have been plenty of efforts to encourage Congress to really look at this. The court has stepped in and resolved the matter. But there will need to be some legislation following up to establish what weight the guidelines or new guidelines will have.

CHIDEYA: What's your idea of an ideal situation unfolding overtime, dealing with sentencing levels, dealing with retroactivity? What do you want to see happen from this moment forward?

Mr. RUSHFORD: Well, I think in the retroactivity aspect, the Sentencing Commission needs to look at the particular cases that they want to apply retroactively. In California, for many years, the U.S. attorney has not prosecuted crack cases unless there was a gun allegation also with regard to the defendant, which means the defendant had a weapon when he was arrested for the crack. This suggests that - we're talking about a dealer here as opposed to a user. The rest of the cases were left to the state law, which provided a much lower sentence than the federal guidelines for just users or people who just possessed.

Now, I don't know what the experience was in other states, but those defendants, when you're looking to apply retroactively - carefully, what we're dealing with, if you've got a guy who had an amount of crack cocaine and also who happen to have an Uzi, and maybe his record indicated that he'd been arrested for dealing-type crimes before, then maybe we should not apply the sentence retroactively. But for defendants who were just nailed on possession, that those would be the ones I would think would be appropriate to consider retroactive application of the sentence.

CHIDEYA: Let me ask you about some of the opinions from the Supreme Court, both of the rulings - the one on the crack cocaine case and the ecstasy case - were 7 to 2, the Justices Clarence Thomas and Samuel Alito were dissenting, and Alito said sentencing disparities will gradually increase, meaning that if you give judges more discretion, you'll see a greater disparity. How do you feel about a proposition like that?

Mr. RUSHFORD: Well, there was a good purpose behind having the guidelines, just as there is in sentencing schemes that carry a range of fixed sentences in the states, and that is so that people know what the penalty for the crime is within that range.

When you leave it, and as Alito's opinion pointed out - we're talking about just giving lip service to the guidelines now at the federal level - there doesn't have to be a lot of justification for a difference in sentence. You're opening it up to a tough judge in some parts of the same state, and if one federal court giving a substantial sentence - 10 to 15 years - for the possession of five grams, and another judge in the same state giving probation, so there is going to be some - there's going to be disparity and it's going to increase unless there is a new guideline established, and the courts uphold it.

So he's correct that we've kind of taken the requirement that the courts give a special - the sentencing courts give due deference and utilize the guidelines more strongly than just, well, okay, I'm departing from it and here's why. And that is going to be a problem among some courts. I think a lot of judges will stay in the middle, but there will be extremes.

CHIDEYA: Very briefly, do you think this will trickle down to the state level and influence state sentencing?

Mr. RUSHFORD: I think state sentencing has been more rational all along, and out here in California, repeat offenders are the ones that get these kinds of penalties. First-time offenders actually go to programs; other states have similar schemes and - which is why U.S. attorneys in some places - and I want to talk a little bit about this racial disparity. The U.S. attorney in Los Angeles, during the time when these challenges were going through as the crack dealers were all minorities, pointed out that blacks in Los Angeles controlled the crack dealing throughout the United States. Who are you going to arrest? The Japanese, the Irish? They're not controlling, they're not even involved. They get hit by the Yanks.

CHIDEYA: Well, Mike…

Mr. RUSHFORD: So I think that states have rational approaches to this already in most cases. These guidelines will probably encourage getting rid of any disparities that are like the federal guidelines.

CHIDEYA: Michael, thank you so much.

We've been talking with Michael Rushford, president and CEO of the Criminal Justice Legal Foundation. Coming up, a mystery novel hunts for the one who really shot JFK.

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