ROANOKE TIMES
Copyright (c) 1997, Roanoke Times
DATE: Sunday, January 12, 1997 TAG: 9701130086
SECTION: VIRGINIA PAGE: A-1 EDITION: METRO
SERIES: CRIME AND PUNISHMENT
SOURCE: JAN VERTEFEUILLE STAFF WRITER
MEMO: ***CORRECTION***
Published correction ran on Jan. 14.
Amplification
The database of drug sentencings in Roanoke federal court that was
compiled by The Roanoke Times and analyzed in stories on Saturday and
Sunday can be reviewed on The Roanoke Times Online, at www.roanoke.com
Congress skewed the justice system when it mandated harsh sentences for crack, many say. Low-level crack dealers, who often are black, can face harder time than major powder cocaine traffickers.
Everette Law is proof that in the American justice system, there are crimes worse than murder.
While the average murderer serves less than 14 years in prison, Law is serving a life sentence with no chance for parole.
The Roanoke native sold crack for a living. And even though police never caught him with any, federal conspiracy laws, a criminal past and Congress' tough stance on crack dealing ensured him a weighty sentence.
"No capital offense was involved here. No dead bodys, no kidnap, not even a carjack," he complained in a letter to Chief U.S. District Judge Jackson Kiser, who sentenced him. "I turn myself in, still I receive life."
As Law learned the hard way, a crack-dealing conviction in federal court can bring a stiffer sentence than murder or rape brings in state court.
Selling 5 grams of crack - equivalent in weight to five packets of Sweet 'n Low and worth about $500 retail - brings a mandatory five years in prison, no parole. To get that much time for selling powder cocaine, you'd have to be convicted of selling 500 grams - more than a pound - worth more than $10,000 on the street.
The big difference between crack and powder is the way it's ingested. Crack is powder that has been converted to solid, or "rock," form by cooking it with baking soda and water. The rock is then smoked, reaching the brain much faster than cocaine that is snorted and giving a more intense but shorter-lived high.
The 100-to-1 punishment difference leads critics of federal sentencing rules to charge racism and has fueled national debate. Most crack defendants are black; most powder defendants are white.
At least one national study shows that blacks get longer federal sentences for crack than whites. But a study of drug sentences for 1994 and '95 by The Roanoke Times found that federal judges in Roanoke treat black and white crack defendants the same.
That study and follow-up interviews also found that Roanoke federal judges often consciously choose to give crack defendants the lightest possible sentence.
But blacks are still overrepresented in Roanoke federal court, although whites in Roanoke are taken to federal court more often than the national average. Seven of every 10 drug defendants in 1994 and '95 were black, while the Roanoke Valley population as a whole is just 12 percent black.
Statistics on the race of defendants and lengths of their sentences are kept only on the national level. No one breaks down federal drug sentences and race by district or state.
So The Roanoke Times set up its own computer database to look at drug sentences in Roanoke federal court for 1994 and 1995, using information from the court's public order books and from the U.S. Attorney's Office.
Among the findings:
* In Roanoke, 106 people were sentenced federally on crack charges: 96 blacks, nine whites and one Hispanic. The average sentence was eight years.
Though only 8 percent of the defendants were white, that's nearly twice the national average.
There was no statistical difference in the sentences blacks and whites received.
* Forty-three people were sentenced for powder: 15 blacks, 24 whites and four from other minority groups. The black defendants' sentences were nearly twice as long as the whites' sentences.
That doesn't necessarily prove racial bias, however. The difference could be that the black defendants were caught with more cocaine than the white defendants, a factor the newspaper's study did not consider. A U.S. Drug Enforcement Administration agent in Roanoke said that, because of the penalties, many high-up crack suppliers no longer convert their powder into crack before selling it to smaller dealers, so they often are caught with large quantities of powder.
* While nationwide there are more federal prosecutions for powder, in Roanoke the majority of drug cases were for crack.
* Judges were almost twice as likely to give black defendants the lightest sentences allowed under federal sentencing guidelines than they were to give whites the minimum.
This may be explained by the fact that most of the blacks prosecuted in federal court were facing crack charges, which carry the longest prison sentences.
* When judges were allowed to use their own discretion to determine sentences - in fewer than a third of all cases - there appears to be no difference in the way they treated blacks and whites.
* * *
One advantage to law enforcement of taking drug cases to federal court is that they fall under tough sentencing guidelines.
The guidelines and mandatory sentences imposed by Congress take away nearly all discretion from judges and put it in the hands of prosecutors and the sentencing manual. (State judges follow voluntary guidelines, which generally call for shorter sentences.)
Judges and defense attorneys don't like it.
"No two individuals are exactly alike, and no two crimes are exactly alike," said U.S. District Judge James Turk, who has been a critic of the guidelines since their inception 10 years ago. "And I don't think the guidelines take that into consideration."
Before being appointed a judge, Turk said, he saw the stress and worry that burdened some judges over the punishments they handed down. He vowed not to let that happen to him.
"I said when I came on, I'm going to do what I think is right, knowing they have a right to appeal, and I'm not going to take these things home with me," he said. "And I didn't - until the guidelines. Some sentences I've had to impose on people cause me to worry about them after I leave here.
"The sentences I have to give them sometimes are too harsh. I have deviated [from the guidelines] a number of times. Every time the government appeals, I've been reversed."
U.S. Attorney Bob Crouch, whose office prosecutes federal crimes in Western Virginia, defends the guidelines.
"I think judges still maintain a lot of discretion within the guidelines and can actually deviate, or depart, below or above them," Crouch said.
But judges must explain those departures in writing on the sentencing forms, and such departures are grounds for appeal.
One Roanoke lawyer notes that when defendants hire lawyers, they're buying their attorney's time as well as their access to the people who matter most in the outcome of a case. And that's no longer the judge.
"The [DEA or police] agent and the U.S. attorney are the people you have to know," Tony Anderson said. "It's great to know the judge, but the person who's going to have the most say about what your client's going to get are the attorney and the case agent."
Melvin Hill has worked both sides of criminal law. He served as regional drug prosecutor from 1991 to '93 and then went into private practice as a defense attorney, where he spent time representing clients in federal court. A few months ago, he gave up his practice and returned to prosecuting in the Roanoke commonwealth's attorney's office.
"I think sentencing should be individualized," Hill said. "You have a lot of people with crack who have no criminal record - to put them away for the first commission of any offense for five years, 10 years minimum I think is unfair."
A sentencing formula is used that takes into account everything from past criminal records to mitigating factors, such as level of involvement in a crime. The result is a range of prison time and amount of fine that a judge may impose.
For example, a person convicted of dealing crack cocaine, depending on his background and the amount of the drug involved, could have a guideline range from 60 to 71 months. A judge may sentence him within that range.
The three federal judges in Roanoke, however, seldom sentence drug defendants in the upper limits of the guideline range. Turk believes the ranges in crack cases are so harsh that he goes above the minimum only when there are aggravating circumstances.
DEA Agent Don Lincoln, whose office arrests most federal drug defendants, doesn't object, because even the minimum sentences are long.
"I agree, and most agents will agree, they are extremely stiff sentences," Lincoln said.
Congress approved the sentencing guidelines in 1987 in an attempt to ensure that uniform, fair sentences were handed down by federal judges around the country - so that the punishment for selling crack or embezzling bank funds in California, for example, would be similar to that in Massachusetts, free from the influence of sympathetic or biased judges.
"It was a noble purpose Congress was trying to accomplish - bringing about uniformity of sentencing and eliminating too-lenient sentences," Turk said.
But it has failed, he said.
"There's as much disparity in sentencing today - probably more so."
Indeed, researchers conducting a study for the Justice Department looked at the transition from sentencing in which judges had complete discretion to sentencing using the guidelines in the late 1980s. The researchers concluded that before the guidelines went into effect in late 1987, whites and blacks received similar sentences.
After the guidelines, differences became more pronounced, with blacks and Hispanics getting harsher sentences. The study found substantial differences in sentences for only a few crimes, but they were the crimes most often charged, such as drugs.
To determine whether Roanoke judges treated blacks and whites equally if given discretion, The Roanoke Times looked at the cases in which defendants cooperated with the government, either by turning in another dealer or by becoming an informant.
Such defendants are rewarded by being exempt from the sentencing guidelines. In those cases, the judge is free to go below guideline recommendations and hand down a sentence he thinks is appropriate.
The 50 such cases in 1994 and '95 show that when the Roanoke judges were given discretion in sentencing, there was no statistical difference in the way blacks and whites were punished.
All such defendants received prison terms that were significantly shorter than they would have been under the guidelines, in part because the judges were favorably factoring into their decisions the defendants' cooperation with the government.
Forty of those defendants saw their sentences cut at least in half compared with what they would have faced under the guidelines. More than 10 percent walked away with no time at all.
* * *
When Chief U.S. District Judge Jackson Kiser sentenced Eric Jamison last year, he lamented the rules that required him to sentence the 31-year-old to 46 months in prison.
Jamison had been out on bond for two years, had stayed out of trouble and was up for promotion to assistant manager at the store where he worked. Jamison, a powder dealer who is black, had agreed to cooperate in the prosecution of another suspect. But it had not worked out.
"There's no question the guidelines ... have put judges in the position of being automatons," Kiser told Jamison, whose wife sat on a courtroom bench wiping away tears as their little girl doodled quietly beside her.
"But if I'm to abide by my oath, I've got to follow the law as I see it," the judge said. "I recognize it's a waste of fine talent to have you behind bars."
In the end, Jamison avoided prison in a turn of events that illustrates the power the prosecution has over sentencing. Before beginning his sentence, Jamison was able to set up another dealer in Florida. Drug agents netted 6 kilograms of powder cocaine. The government then made a motion to reduce Jamison's sentence because he cooperated, giving Kiser the opportunity to eliminate his prison time.
"I don't think anybody was saddened by the fact that Mr. Jamison earned some credit," said Assistant U.S. Attorney Don Wolthuis, who asked the court to reduce the sentence. "He was doing all the things a responsible person would do to establish a track record as someone who could be productive."
U.S. District Judge Samuel Wilson confessed uncertainty about whether long prison terms help solve the drug problem as he sentenced a 19-year-old dealer to 10 years last year.
"I don't know what the answer to this problem is, and I doubt very seriously anybody really does," Wilson said as he pronounced sentence on Jerome "Doobie" Jones. "I don't know how to make [the severity of the punishment] better known. I don't know whether what the court does makes it clear. I don't know."
Any defense lawyer who spends time in federal court has a story or two about a client with small-time crack ties who got swept up in a federal investigation and received a harsh sentence.
For Bob Rider, it's Daniel Halsey, the only white defendant sentenced on crack charges in Roanoke federal court in 1994.
At the time of his arrest, Halsey was 20, working at a low-paying job and expecting a baby with his wife.
Halsey's case started as a state prosecution but was transferred into federal court - probably, Rider said, because prosecutors could get enhanced punishment for a gun found in his apartment and because he got caught dealing again shortly after the first charge.
"He got eight damn years in the penitentiary," Rider said. "He wasn't a big dealer. He was just a kid on the streets trying to survive with it. It was a classic situation of an easy way to make money, and he took it.
"He got no consideration from the courts."
* * *
The U.S. Sentencing Commission, an independent body that oversees federal sentencing policies, updates and fine-tunes the guidelines annually.
It concluded in 1995 that the huge difference between mandatory crack and powder sentences was not racially motivated. But the commission also said it was not justified and recommended to Congress that mandatory crack sentences be reduced to the same level as powder.
Congress refused, prompting riots by black inmates at five federal prisons. It was the first time Congress has overruled the Sentencing Commission, which it created in 1984.
A study published in the Journal of the American Medical Association in November concluded that federal sentencing guidelines that treat crack offenders more harshly than powder offenders are not justified. The two forms of the drug are the same chemically, the study found, and cause the "same physiological and behavioral effects" - an assertion police and addicts would dispute.
The study also found that the mandatory crack sentences are applied to blacks 22 times more often than to whites.
The Justice Department maintains that crack is a more dangerous drug and that tougher punishment is merited, although Attorney General Janet Reno agrees that the 100-to-1 ratio may not be justified.
"Treating crack and powder cocaine equally does not reflect the terrible impact of crack trafficking and our responsibility to protect the poorest and most threatened communities from narcotics predators," an assistant attorney general told Congress.
"I think it is kind of strange it takes 100 times this," DEA agent Lincoln said, holding up a bag of powder cocaine, "to get the same sentence."
In urging Congress to change the crack punishment, the chairman of the nonpartisan Sentencing Commission said that after much painful debate, the group could not justify the 100-to-1 difference.
Chairman Richard Conaboy also said the laws had an unjust effect on poor, minority neighborhoods - the neighborhoods Congress sought to protect when it first drafted the crack laws in the mid-1980s. The laws have had the unintended consequence of punishing low-level crack dealers more harshly than the suppliers who sold them the powder to turn into crack.
"Sending an 18-year-old to federal prison for 20 years for selling a handful of crack while his powder supplier, or for that matter a violent state felon, is free in a much shorter time is simply bad policy and a waste of our precious resources," Conaboy said. "It is also unfair and unjust."
Ellen Rachel Shelton, a Roanoke College graduate with a degree in statistics, helped The Roanoke Times analyze the computer database of Roanoke federal court sentences.
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