GWEN IFILL: Finally tonight, reducing sentences for crack cocaine offenders, and to Jeffrey Brown.
JEFFREY BROWN: Twenty years ago, an increase in the use of crack cocaine led to fears of an epidemic of addiction and violence around the country. Congress responded with a law that set far higher sentences for possession of crack than for possession of powder cocaine, treating one gram of crack as equivalent to 100 grams of powder.
The U.S. Sentencing Commission, which sets guidelines for federal prison sentences, decided that disparity was too great and, in November, voted to reduce sentences handed out for crack cocaine possession. Yesterday, the commission took a further step, making its new rules retroactive, making more than 19,000 present inmates eligible to petition the courts to reduce their sentences.
For more on these changes, we get two views. Judge Reggie Walton sits on the United States District Court for the District of Columbia, and Gretchen Shappert is the U.S. attorney for the Western District of North Carolina.
Welcome to both of you.
JUDGE REGGIE WALTON, U.S. District Court, Washington, D.C.: Thank you.
JEFFREY BROWN: Judge Walton, the decision to make these rules retroactive was quite controversial. Why do you think it was a good rule?
JUDGE REGGIE WALTON: Well, because I think it's been determined that the disparity that exists now is fundamentally unfair and that it disproportionately impacts a certain segment of American society, African-American males.
JEFFREY BROWN: Because the great percentage of these cases are involving African-Americans?
JUDGE REGGIE WALTON: That's correct.
JEFFREY BROWN: As opposed to the powder, I understand.
JUDGE REGGIE WALTON: That's correct. And there are socioeconomic underpinnings. Crack cocaine is cheap. It's sold many times in poor communities. And, unfortunately, a lot of young black men get caught up in involvement. And as a result, about 86 percent of those who are serving federal prison sentences for crack cocaine are African-American males.
JEFFREY BROWN: And that's an argument for changing a disparity. What about for making it retroactive? That's just to even it out for everybody?
JUDGE REGGIE WALTON: No, I mean, look at it this way: The new change took effect on November 1st. I think it's illogical to say that, just because somebody got sentenced on October 31st, the rule doesn't apply to them, whereas it does apply to someone who was sentenced on November 1st.
Strain to the legal system
JEFFREY BROWN: Gretchen Shappert, the Justice Department was against this?
GRETCHEN SHAPPERT, United States Attorney, North Carolina: That's correct.
JEFFREY BROWN: Attorney General Mukasey spoke against it even this week. Why?
GRETCHEN SHAPPERT: Our concern is that this is a group of individuals who are associated with violence. Crack is a drug that's associated with violence. We believe that 19,500 defendants will be eligible for re-sentencing. That represents fully 10 percent of the federal criminal prison population.
But this group is a unique population. The studies of the Sentencing Commission show that those persons convicted in the federal system for crack cocaine are more likely to be recidivists based on their criminal histories, based upon their use of weapons, and based upon their leadership roles in drug organizations.
Our concern is not just the impact it's going to have on the court system, which will be considerable. Our concern is going to be the impact it has when people are released prematurely into the very communities that we're trying to help bring back, fragile communities that have been ravaged by crack cocaine.
The findings of the Bureau of Prisons indicates that it takes about 30 months to prepare someone for release back into the community once they're incarcerated for a lengthy federal sentence.
They will receive probably 450 hours of training in six core areas, things like anger management. They may get degrees. They may get job training, an identification, a driver's license.
Accelerating their return to the communities will deprive them of those social services and programs that will prepare them for release and increase the likelihood that they will recidivate and be a negative impact on their community.
JEFFREY BROWN: All right, well, you've raised a number of issues here. Let's start with the recidivism and the potential for new violent offenders coming back into the community.
JUDGE REGGIE WALTON: Well, this change is not a "get out of jail free" pass. Judges still have to make a discretionary assessment as to whether or not the change is made applicable to individual offenders.
And I don't disagree that there are individuals associated with the crack cocaine trade who have been involved in violence, but that is not 100 percent the case. There are individuals who are detained for lengthy periods of time who were not involved in violence and would not pose a danger to the community if they come back out.
And if a decision has been made that the disparity is fundamentally unfair and it's disproportionately impacting a certain segment of American society, I just think it's unprincipled to say that you're not going to afford a means of relief to those who don't pose a danger to the community. And there are some who fit within that category.
JEFFREY BROWN: Just explain so we're clear how it works. A case would be -- a person would petition to you, if you had been the judge. You would have discretion to make that decision.
JUDGE REGGIE WALTON: That's correct. And, obviously, I mean, the policy statement of the Sentencing Commission said that we have to take into account whether the individual would, in fact, pose a danger if they were released back into the community earlier based upon getting the benefit of this change.
And I'm confident that judges will go about the business of trying to make that assessment and not be willy-nilly, letting people come back into the community just because the change took effect.
JEFFREY BROWN: OK, well, stay on that issue, because he's saying there will be a review of who gets back into the community.
GRETCHEN SHAPPERT: Yes, there will be a review. The problem is a lot of these cases are being reopened where files have been closed. And let me point out that all of these individuals coming back for re-sentencing had legitimate, credible sentences. There's no question as to the legitimacy of the convictions.
What we're going to be doing is reopening files that have been archived, potentially transporting back to their districts up to 19,500 people for re-sentencing, trying to resurrect old cases where agents have retired, prosecutors are gone, files have been destroyed, and then having to reopen these matters for review.
With all due respects to the judge, I have concerns about how this process is going to work. And, again, these are legitimate sentences that we submit should not be revisited.
Overly harsh sentencing at issue
JEFFREY BROWN: So this goes more to almost a workload question or what it will do to the court system.
JUDGE REGGIE WALTON: Well, if a policy is concluded, as the Sentencing Commission concluded, is fundamentally unfair, I don't think that just because I'm going to have to work a little harder is a sufficient reason to not provide relief to people who should not have been sentenced to the term that they were sentenced to.
I don't, again, disagree that there are individuals who have been involved in the crack cocaine trade who've been violent. But there was a case several years ago involving a young lady who went to Hampton University, a good girl, came from a good home, went there, got involved with a guy who was involved in drugs, started trafficking drugs for him, after he had beaten her, threatened her.
And, yes, she should have been punished. She should have known better. But did she have to receive a 24-year sentence, which she received? I don't think so.
So there are individuals like her who fit within that category. She is now going throughout the country speaking to kids, trying to deter kids from getting involved in this type of behavior.
So rather than sitting in a jail cell, consuming $24,000 per year of our tax dollars, she's now out being a contributing member of society. There are many individuals, I believe, within that 19,000 who fit that category.
JEFFREY BROWN: What about, to come back to the retroactivity issue here, the judge's argument that, why treat someone different who was sentenced on October 31st as opposed to November 1st?
GRETCHEN SHAPPERT: Well, there are some constitutional questions, but we don't give someone necessarily a benefit when the law gets more severe. I don't know that we necessarily have to give a benefit when the law becomes less severe.
But the other thing is the retroactivity -- the fairness question is not just with regard to this population of criminal offenders. And I respectfully reject the judge's argument that it's fundamentally unfair.
But the other fairness component is the impact it's going to have on these communities. And my concern is releasing possibly 2,500 people right back to their communities within the first year, many of these individuals will be going back to neighborhoods that have been impacted by crack cocaine.
I would submit -- and I've heard it said, and I do believe the difference between crack and powder is powder cocaine destroys an individual. Our experience is that crack cocaine destroys a community.
Individuals have greater discretion
JEFFREY BROWN: Let me ask you, because the Supreme Court weighed into this in one way this week, in a case that involved crack cocaine, and decided that judges could have more discretion with the sentencing rules. To what extent does that impact this discussion now?
You also know that Congress is looking at changing the rules of the disparity in sentencing. Where does all that play into this debate?
JUDGE REGGIE WALTON: Well, obviously, for certain individuals, as a result of the Supreme Court's ruling, judges will have the ability to have greater discretion and will exercise that discretion prudently in deciding whether someone should receive a lesser sentence, taking into account the disparity that the Sentencing Commission has concluded is unfair.
JEFFREY BROWN: And...
JUDGE REGGIE WALTON: I mean, I understand that, you know, there's a concern. I'm concerned about what will happen to communities when people come back. But the current state of the law is also demoralizing in those communities.
I know, in Washington, D.C. -- I don't know what it is like in Charlotte -- but I've had jurors who've come up, potential jurors, and say that they would not serve because the system's unfair. I've had jurors who've refused to convict because they feel the system is unfair because they know about the disparity, people who won't come forward and reveal information because they believe the system is unfair.
You can't have a system of laws that's locking up as many African-Americans as we have related to this particular offense and have people in those communities respect our system of justice.
JEFFREY BROWN: Time for a response.
GRETCHEN SHAPPERT: Well, for example, in the area of methamphetamine, crystal methamphetamine, the overwhelming majority of people we prosecute are Hispanic or white. We prosecute based upon criminal conduct, not based upon race.
And I do not accept that the process is fundamentally unfair. We do not look at the identity of the individual who commits the crime. And with regard to a disparity, it was Congress that passed the statutory mandatory minimums, which has created the difference between crack and powder. It was Congress responding to a need that they saw, and we are in the business of upholding the law the way it was written.
JUDGE REGGIE WALTON: And the end result is that the major, wholesale traffickers who are bringing tons of that stuff into this country end up getting sentences significantly less, sometimes, than the retail seller who's selling one rock of cocaine. In my view, that can't be considered fair.
JEFFREY BROWN: All right, we'll have to leave it there. Judge Reggie Walton and U.S. Attorney Gretchen Shappert, thank you both very much.