Crack Cocaine Offenders Denied Representation for Sentence Reductions
by Brandon Sample
In the wake of the U.S. Sentencing Commission’s decision to reduce penalties for federal crack cocaine offenses, and to make those changes retroactive effective March 3, 2008, crack offenders are being forced to go it alone in their efforts to obtain sentence reductions.
For nearly 20 years criminal justice advocates have argued that sentences for crack cocaine offenses were too harsh in comparison with crimes involving powder cocaine.
The 100-to-1 statutory ratio between power and crack cocaine that results in disparate sentences for crack offenders has been hotly debated, including the racial element: Over 80 percent of federal prisoners serving time for selling crack are black.
In November 2007, following a six-month Congressional review period, the U.S. Sentencing Commission put a band-aid on the problem by marginally reducing the penalties for crack cocaine-related crimes. Mandatory minimums based on the amount of drugs involved in an offense did not change, however. The Commission noted that “Only Congress can provide a comprehensive solution to a fundamental unfairness in Federal sentencing policy.”
Although almost 20,000 offenders are expected to benefit from the change in crack offense penalties, the number will likely be much smaller since many federal courts have refused to provide counsel for defendants seeking sentence reductions.
“We’re being left to fend for ourselves,” said Eyvonne Garrett, a prisoner in Fort Worth, Texas who was denied an attorney and a reduced sentence. “Without an attorney, we don’t have a voice.” Or a chance, in many cases.
The constitutional right to an attorney does not extend to proceedings under 18 U.S.C. § 3582(c)(2), the mechanism prisoners must use to obtain a lower sentence based on the crack cocaine sentencing change. Nevertheless, courts have the authority under the Criminal Justice Act, 18 U.S.C. § 3006A, to appoint counsel for offenders seeking a reduced sentence. The only prerequisites are indigence and a finding that appointment of counsel would be “in the interests of justice.”
Some federal judges, though, seem to think it’s “in the interests of justice” to deny prisoners legal representation. Sam Cummings, a U.S. District Court Judge in Lubbock, Texas, for example, has refused to appoint counsel in crack sentence reduction cases brought before his court. Garrett’s was one of those cases. Cummings denied her request for a reduced sentence after federal prosecutors filed a 24-page opposition to her motion. “I was shocked,” Garrett said. “I thought I had done everything I was supposed to do.”
The importance of counsel in cases like Garrett’s was emphasized by Jason Hawkins, an assistant federal public defender in Dallas. “Not appointing counsel allows the government to run over people as if they’re mere speed bumps in this process,” he said. “A litigant with very little schooling is not going to be able to go up against a career prosecutor who is filing 24-page briefs on this issue.”
There are success stories, however, such as Anthea Harris. She had been present at a 1997 crack cocaine drug deal conducted by her husband, and was sentenced to over 15 years on a conspiracy charge. She served almost 11 years before being released from the Coleman Federal Correctional Complex near Orlando, Florida as a result of the U.S. Sentencing Commission’s decision to reduce penalties for crack offenses.
In cases where counsel has been appointed, the process has “been running very smoothly,” stated Felicia Sarner, a supervising assistant federal public defender in Philadelphia. According to one news report, 76 percent of sentence reductions for crack offenders have been granted by federal courts nationwide.
Judges like Cummings should take note and reconsider whether the denial of counsel for prisoners who are eligible for sentence reductions is really “in the interests of justice.”
Sources: McClatchy Newspapers, U.S. Sentencing Comm. News Release, Sun Sentinel
As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.
Already a subscriber? Login