US Sentencing Commission may make its recent easing of crack cocaine punishment guidelines retroactive

Supreme Court supported some 19,500 federal inmates and their families, most of them black, hoping the U.S. Sentencing Commission is ready to make its recent easing of crack cocaine punishment guidelines retroactive.

Photo: US Sentencing Commission may make its recent easing of crack cocaine punishment guidelines retroactive

The seven-member commission, which provides guidelines for sentencing federal convicts, meets Tuesday to discuss retroactivity, and a vote is likely.

Inmate family representatives and other advocates said a Supreme Court decision Monday could only improve chances the commission would dismantle yet another portion of the long-criticized disparity in sentences for crack and powder cocaine offenses. Crack is predominantly used by blacks; powder cocaine, predominantly by whites.

Making the guidelines retroactive is opposed by the Bush administration. A senior Justice Department official warned Tuesday that retroactive guidelines could have a disastrous effect on crime-riddled communities that are not ready to receive crack offenders who could be released early from prison as a result.

"Areas that already are seeing an increase in violent crime - this is going to affect those areas dramatically," said the official, who spoke on condition of anonymity because the commission had not formally acted.

The Justice Department previously opposed retroactive changes to sentences for LSD and marijuana offenders.

In two decisions Monday, the Supreme Court upheld judges who rejected federal sentencing guidelines as too harsh and imposed more lenient prison terms, including one for crack offenses.

In the crack case, Justice Ruth Bader Ginsburg's majority opinion said Derrick Kimbrough's 15-year sentence was acceptable, although guidelines called for 19 to 22 years. "In making that determination, the judge may consider the disparity between the guidelines' treatment of crack and powder cocaine offenses," Ginsburg said.

Kimbrough is black.

So are 86 percent of the 19,500 inmates who might see their prison terms for crack offenses reduced if the commission approves retroactive easing. By contrast, just over a quarter of those convicted of powder cocaine crimes last year were black.

The sentencing commission recently changed the guidelines to reduce the disparity in prison time for the two crimes. New guidelines took effect Nov. 1.

Under the commission's plan, retroactive sentence reductions would not be automatic. A judge would have to review each inmate to decide whether a reduction was merited.

"The Kimbrough decision is a tremendous victory for all who believe that the crack and powder cocaine disparity is unjust," said Mary Price, vice president of Families Against Mandatory Minimums.

Kimbrough's case, though, did not present the ultimate fairness question. Congress wrote the harsher treatment for crack into a law that sets a mandatory minimum of five years in prison for trafficking in 5 grams of crack cocaine or 100 times as much powder cocaine.

Seventy percent of crack defendants get the mandatory minimum.

Kimbrough is among the remaining 30 percent who, under the guidelines, are supposed to receive even more prison time for trafficking in more than 5 grams of crack.

Neither the court's decision nor the commission's guidelines affect the minimum sentences, which only Congress can alter.