NEW YORK, Nov 1 (Reuters) - On Tuesday, an estimated 12,000 inmates locked up for crack cocaine offenses across the U.S. became eligible to receive significant sentence reductions -- and in some cases outright release -- under newly retroactive revisions to federal sentencing guidelines that were designed to equalize the vastly uneven penalties for possession of crack and powder cocaine.
In New York alone, 99 inmates could be released immediately from prison, pending a federal court's review of their sentences. Over the next six years, nearly 400 more could walk free years before their original sentences are scheduled to end, according to data from the U.S. Sentencing Commission.
The Anti-Drug Act, passed in 1986, made crack cocaine the only drug for which simple possession carried mandatory jail time. Possession of five grams resulted in a mandatory five-year minimum sentence, compared to no mandatory jail time for the equivalent amount of powder cocaine, which is chemically similar to crack.
In the 25 years since the law was enacted, more than 80 percent of those incarcerated for federal crack convictions have been African-Americans, according to statistics provided by the NAACP.
Last year, Congress responded by passing the Fair Sentencing Act, which eliminated the mandatory minimum sentence for crack possession, and reduced the sentencing ratio between crack and powder cocaine from 100-to-1 to about 18-to-1.
Congress passed the FSA with wide bipartisan support, but for opponents of harsh crack-sentencing laws the victory was partial, because the new law applied only to new sentences, leaving thousands to serve out lengthy sentences under the old guidelines.
'UNDERMINES THE FINALITY' OF CONVICTIONS
Following passage of the FSA, the U.S. Sentencing Commission -- an independent advisory group within the judicial branch that sets sentencing policy and practices for federal courts -- faced calls from the American Bar Association, U.S. Attorney General Eric Holder, and advocacy groups urging it to make incarcerated offenders eligible for early release.
"There's absolutely no reason in justice or common sense to allow these people whose stories we told, whose experiences we wrung our hands over, whose cases we use as an examples, to remain in prison," said Mary Price, vice-president and general counsel of Families Against Mandatory Minimums, a legal advocacy group that opposes mandatory minimum sentences.
Not everyone saw the benefit of reducing sentences for crack offenders.
The National Association of Assistant U.S. Attorneys, the National District Attorneys Association and the Fraternal Order of Police all opposed making the revised guidelines retroactive, saying that it could overturn years of prosecutorial work and put potentially dangerous crack offenders back on the streets too soon.
"One of our principal concerns about this is that it significantly undermines the finality of criminal convictions," said Steven Cook, an assistant U.S. attorney in the Eastern District of Tennessee who heads the NAASUA. "Years later, after all the parties worked so hard to catch them ... now that entire agreement is undermined, and the crack dealers get released early."
Despite prosecutors' misgivings, the Sentencing Commission decided on June 30 that the sentencing provisions would apply retroactively, starting November 1.
REDUCTIONS NOT AUTOMATIC
The reductions won't be automatic or universal. An offender who received a mandatory 5- or 10-year sentence will still have to serve the full sentence, and factors such as post-conviction behavior and public safety will be taken into account when making decisions about who is eligible to receive a reduction.
Still, the effect on individuals serving time for crack cocaine could be substantial. Approximately 12,000 offenders could be eligible for an average reduction of 37 months, saving the Bureau of Prisons an estimated $200 million over the next five years, according to Sentencing Commission estimates.
Inmates have already begun lining up across the country to file petitions with the federal courts to seek review for their sentences. In New York, more than a dozen motions have been filed in the Southern District of New York in Manhattan, and a handful have trickled into the Eastern District in Brooklyn.
Steve Statsinger, a federal defender in New York City spearheading the office's review of crack cases in the Southern District of New York, said a number of inmates have already submitted their own pro se applications, while others are reaching out to private attorneys and public defenders for assistance.
"A lot of these clients in federal penitentiaries are very aware, they stay up on the law -- they're waiting for this," said Lisa Wayne, a defense attorney in Denver and president of the National Association of Criminal Defense Lawyers.
It's up to the judge how much time, if any, will be shaved off a petitioner's sentence.
While each district handles the petitions differently, in most cases the court will solicit input from the U.S. Probation Department and the U.S. Attorney's Office regarding the petitioning inmate's case, post-conviction behavior and other possibly mitigating factors.
When the process is complete, it's likely that the number of petitions will be higher than the Sentencing Commission's estimates, while the number of cases that actually receive sentencing reductions could be smaller, thanks in part to the mandatory minimum that would still stick in pre-FSA sentences, Statsinger said.
But New York judges may find support for reducing sentences from the 2nd Circuit Court of Appeals' recent ruling in United States v. Rivera, which upheld a crack offender's right to have his case reviewed under older adjustments to crack sentencing guidelines.
"Retroactive amendments exist to allow inequalities to be fixed, and the now-infamous 100-to-1 ratio was the source of shameful inequalities," wrote U.S. District Judge John Gleeson from New York's Eastern District, sitting by designation on the appeals court panel.
(Reporting by Jessica Dye)
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