First Crack Convicts Released After Sentence Reduction Guidelines

Marsha Cunningham was no drug dealer. But when authorities busted her boyfriend in the 1990s for selling crack and powdered cocaine, they also arrested her on a crack possession charge.

Her sentence: Fifteen years, only two less than her boyfriend got.

But Cunningham is now one of up to 20,000 inmates convicted of crack offenses who may see their sentences reduced under new federal guidelines intended to bring retroactive fairness to drug sentencing.

"Marsha is a really good person," said her aunt Ruby Jones, of Houston. "She got caught up in this behind her boyfriend."

The sentencing guidelines went into effect Monday — the result of a December decision by the U.S. Sentencing Commission to ease the way the system came down far harder on crack-related crimes than on those involving powdered cocaine.

Previously, a person with 1 gram of crack would receive the same sentence as someone with 100 grams of the powdered form of cocaine. The disparity has been decried as racially discriminatory, since four of every five crack defendants in the U.S. are black, while most powdered-cocaine convictions involve whites.

"The sentences for crack cocaine have been one of the most corrosive and unjust areas of criminal law," said Michael Nachmanoff, head of the federal public defender's office for the Eastern District of Virginia. "It's really undermined respect for the criminal justice system, not only in the African-American community but throughout the country."

Nachmanoff said four clients of his office were being released under the new guidelines Monday.

About 1,600 inmates are eligible for immediate release this week, but there is no way to know exactly how many will ultimately be freed, since each prisoner has to ask for a reduction and go before a judge. The remainder of the crack defendants will become eligible for release over the next 30 years.

"As we do with all sentencing guidelines, the department will apply the new rule as written," Justice Department spokesman Peter Carr said Monday. "We will be urging the courts not to go beyond the limited reduction that the Sentencing Commission has asked for and not to re-sentence defendants from scratch."

The Justice Department said it is more worried about crack defendants set to come up for release later, saying they include a higher share of violent offenders and potential repeat offenders than the first batch.

Attorney General Michael Mukasey told a police group last week that nearly 80 percent of the crack defendants who could apply for a reduction in their sentences have some kind of criminal past.

"This tells us those who are eligible for early release are very likely to commit another crime," Mukasey told the Fraternal Order of Police. "These offenders are often violent criminals who are likely to repeat their criminal activities."

But Nachmanoff said few of the crack defendants are violent criminals.

"These are people who committed crimes and have been punished, and the sentencing commission is trying to ensure that they are not punished excessively," he said.

Cunningham, 37, was sentenced in 1998 and has a projected release date of July 24, 2011. She filed a request last week for a sentence reduction, but it has not been ruled on yet.

Her aunt said two of Cunningham's grandparents have died since she went to prison, and her father is in a nursing home.

"He's hoping that she gets out soon so that he can see her," said Jones, the aunt. "Put his arms around her."

Jones said that in phone calls to her family, Cunningham is upbeat but anxious about when she will be released.

"She's been in there for so long," Jones said. "For so long."