April 7, 2008
By Andrew M. Grossman and Charles "Cully" Stimson
A new federal law is letting thousands of federal convicts out
of prison early, and no one is tracking who these felons are or
what they do as they return to the streets. A belated April Fool's
joke? No, it's true, and it's no joke.
It's all because of a radical policy change making federal
inmates convicted of crack charges eligible for reduced prison
sentences. Congress allowed the new law to go into effect last
month, including a provision that made the reduced guidelines
Since 1986, those convicted of crack-related offenses have
received substantially more jail time than those convicted of
powder cocaine offenses. Until last year, the "disparity" was 100
to 1: Five grams of crack triggered a five-year minimum sentence,
versus 50 grams of cocaine.
The disparity shrunk significantly last year, after the U.S.
Sentencing Commission revised its sentencing guidelines to increase
the amount of crack needed to trigger minimum sentences.
Reducing the disparity wasn't especially controversial. A broad
consensus had been building for years that the penalties for crack,
compared to those for cocaine, were excessive and unjust.
But what was controversial was when the Commission took the
unusual step of making the new, lower sentences available to
prisoners who had already been convicted and sentenced. The change
went into effect on March 3. Since then, 3,107 convicts have
received shorter sentences.
As any fan of "Law & Order" knows, prosecutors exercise
great discretion in developing cases. Every prosecutor knows which
crimes are easy to prove and which require more resources. That
analysis factors into the course of most prosecutions, from the
investigation and indictment to bargaining with the defendant and
An example: Proving distribution or possession of crack is
relatively easy, so when it won't affect (increase) the overall
sentence, a prosecutor may pursue the crack-related charge but not
weapons possession or even assault charges. After all, proving the
extra charges may take more resources but won't make the public any
safer by putting the perpetrator away for a longer period of
The Sentencing Commission's retroactivity policy will produce
unfair results. For example, a prisoner who received a 10-year
sentence as part of a plea agreement for a crack offense - but who
wasn't charged with a related weapons offense - may get a few years
knocked off of his sentence under the new guidelines. Meanwhile, a
prisoner with a 10-year sentence for the same weapons offense alone
Furthermore, as Attorney General Michael Mukasey warned Congress
earlier this year, some career and violent offenders will get out
of jail early. Newspapers such as The New York Times roundly
criticized Mukasey's warning, accusing him of trying to scare the
public. But there is good reason to believe that violent and repeat
felons are being released early.
The Sentencing Commission says its policy changes don't apply to
violent and career criminals. But the federal public defender
service disagrees, arguing that these criminals should be treated
exactly the same as first-time, nonviolent offenders under the new
rules. The service has already issued a thoughtful memo to its
lawyers explaining ways to exploit possible loopholes in the new
guidelines. Their arguments are sound, and no doubt are influencing
federal judges who decide who gets out early.
So, who is getting released early? Are federal judges following
the Sentencing Commissions' policy guidelines? Are judges releasing
armed career criminals because the law, as written, and Supreme
Court precedent demand that result? How many of those just released
have committed new crimes? No one is keeping track.
If crime rates rise, especially in inner-city neighborhoods,
policymakers will need to know if retroactivity is to blame.
Without good statistics, there's just no way to answer that
And it's inevitable that the issue of retroactivity will come up
again. Without the facts, policymakers won't have any firm basis to
decide whether retroactivity makes sense or puts the public at
This is a job for the Department of Justice, which needs to make
collecting and analyzing this data a priority, and official policy.
Congress should ask the department for periodic reports, and those
facts should be made public.
Reducing the prison terms of individuals already convicted and
sentenced was an unusual move, one with uncertain consequences. Did
Congress make a wise policy choice, or gamble with our safety?
There is no way to know unless our government keeps track of the
Stimson, a former prosecutor and defense attorney, is Senior
Legal Fellow at The Heritage Foundation
(www.heritage.org), where Andrew M. Grossman is a
Senior Legal Policy Analyst.
First appeared in FOXNews.com
A new federal law is letting thousands of federal convicts out of prison early, and no one is tracking who these felons are or what they do as they return to the streets. A belated April Fool's joke? No, it's true, and it's no joke.
Andrew M. Grossman
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Charles "Cully" Stimson
Manager, National Security Law Program and Senior Legal Fellow
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