WASHINGTON — A federal rule that will shorten prison time for new crack cocaine offenders went into effect Nov. 1.
Now the question is whether violators already behind bars will get a break, too.
It could mean earlier freedom for nearly 20,000 federal prisoners.
The U.S. Sentencing Commission heard the pros and cons at a hearing this week on whether its new guidelines for crack cocaine offenses should be retroactive.
"It is not often that courts are afforded the opportunity to ameliorate the wrongs of the past," said U.S. District Judge Reggie B. Walton of the District of Columbia.
Walton told the hearing that the commission, of which he is a member, "has the ability to undo some of the injustices associated with crack sentencing over the last 20 years."
A single gram of crack cocaine had triggered the same punishment as 100 grams of powder cocaine. Crack penalties had been as much as eight times longer than those for powder cocaine.
For years, voices across the legal community, from former Reagan administration attorney general Edwin Meese to the National Association of Criminal Defense Attorneys, had been calling for more uniformity.
The change could lower the temperature on a racially charged debate. Convicted crack offenders tend to be black; convicted powder cocaine offenders tend to be white. The disparity in punishment evoked images of low-income blacks sitting in jail for crack longer than affluent whites caught with the same amount of cocaine, but in powder form.
Of the nearly 20,000 federal prisoners whose sentences could be reduced, 86 percent are black and 6 percent are white, according to the commission.
The new guidelines close the gap in sentencing somewhat and would mean an average sentence reduction of 27 months. Just over 3,800 drug offenders would be released in the first year, according to the commission.
But law enforcement is divided over the issue. The Bush Justice Department contends that the new sentencing guidelines will open the prison doors for scores of dangerous felons and jam the courts.
Releasing that many prisoners would "jeopardize community safety and threatens to unravel the success we have achieved in removing violent crack offenders from high-crime neighborhoods," Assistant Attorney General Alice Fisher said in a letter to the commission this month.
The Fraternal Order of the Police warned that felons who could be released were not "low-level dealers or first-time offenders." FOP President Chuck Canterbury told the hearing that 80 percent had previous convictions and 35 percent had used weapons in connection with their drug crimes.
"Clearly, these inmates are far more likely to re-offend," he said.
But supporters said the courts would be able to handle the increased workload. Judges, attorneys, civil rights groups and others said that fairness demands that offenders be treated equally regardless of when they were convicted.
"It doesn't make sense to say that the same crime on one day is worth 20 years and the next day it's worth 10 years," said Albert Riederer, a former Missouri prosecutor.
The commission is an independent federal advisory panel created in 1985 to standardize federal sentencing. Over the years it has changed guidelines and made them retroactive for marijuana, LSD and the painkiller Oxycodone.
The commission has no timetable for deciding the retroactivity issue.
Congress has twice before rejected the commission's recommendations about shorter sentences for crack cocaine. This time, Congress had until Nov. 1 to turn down recommendations that the commission offered in May, but it let the deadline pass.
NUMBER OF OFFENDERS BY FEDERAL JUDICIAL DISTRICT
Federal Judicial District........Number of offenders
TOTAL........19,500
Eastern Virginia........1,404
Middle Florida........772
South Carolina........753
Western Virginia........540
Western North Carolina........536
Western Texas........509
Eastern North Carolina........489
Eastern Texas........484
Northern West Virginia........470
Eastern Missouri........445
Middle North Carolina........436
Northern Ohio........396
Northern Illinois........377
Southern Illinois........370
Southern Florida........361
Middle Pennsylvania........358
Northern Texas........342
Southern Texas........342
Northern Florida........323
Middle Georgia........299
Southern Alabama........296
Southern New York........295
Eastern Tennessee........289
Eastern Pennsylvania........288
Maryland........279
Southern West Virginia........278
Northern Indiana........276
District of Columbia........269
Southern Georgia........269
Eastern Michigan........268
Nebraska........256
Central Illinois........250
Western Louisiana........249
Eastern Louisiana........231
Western Missouri........227
Southern Mississippi........226
Southern Ohio........224
Connecticut........217
Kansas........201
Western Michigan........198
Western New York........195
Minnesota........192
Northern Alabama........183
Northern Iowa........160
Northern Mississippi........159
Western Tennessee........149
Massachusetts........147
Eastern New York........146
Northern New York........146
Northern Georgia........142
New Jersey........136
Eastern Wisconsin........134
Southern Iowa........127
Eastern Kentucky........127
Western Pennsylvania........126
Eastern Arkansas........125
Western Wisconsin........125
Central California........124
Middle Alabama........120
Puerto Rico........116
Colorado........115
Southern Indiana........113
Eastern California........108
Western Kentucky........102
Western Oklahoma........91
Rhode Island........83
Maine........81
New Mexico........78
New Hampshire........71
Middle Louisiana........70
Nevada........67
Western Washington........60
Middle Tennessee........59
Western Arkansas........54
Northern California........54
Alaska........43
Northern Oklahoma........43
Eastern Washington........31
Delaware........30
Vermont........29
Hawaii........26
Arizona........25
Southern California........21
Oregon........17
Utah........15
Eastern Oklahoma........13
South Dakota........9
Virgin Islands........6
Wyoming........6
Montana........5
Idaho........3
North Dakota........1
Guam........0
Northern Mariana Islands........0
Source: U.S. Sentencing Commission