Federal court readying for sentencing requests

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By CLARENCE MABIN / Lincoln Journal Star

Federal court officials in Nebraska, like their counterparts across the country, are preparing for a wave of requests for reduced sentences from crack-cocaine defendants.

The requests, expected to number in the thousands nationwide, come in the wake of recent decisions by a federal commission to ratchet down sentencing guidelines for crack cocaine.

According to an estimate by the U.S. Sentencing Commission, the revisions made 19,500 defendants nationwide — including 256 sentenced in federal courts in Nebraska — eligible to file motions for sentence reductions.

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“It’s possible that a large percentage of them will want a face-to-face hearing with the court,” U.S. District Judge Richard Kopf said in an interview last week. “... That’s the impact, practically, on us.”

The sentencing commission voted last spring to modify, effective Nov. 1, the guidelines judges use in crack sentencings. Earlier this month, the commission voted to make the modifications retroactive.

Sensitive to local jurisdictions’ needs to prepare for the anticipated requests for reduced sentences, the commission made the retroactivity effective beginning March 3.

Kopf said he has already received motions for sentencing reductions from three or four defendants. He said he has put those on hold and, in the meantime, has ordered Jim Rowoldt, chief probation officer for Nebraska, to compile a list of defendants on Kopf’s docket who might be eligible for reductions.

The judge also asked Rowoldt to begin to prepare procedures for how the office will handle the cases.

Rowoldt said the office will be able to manage the additional workload created by the guideline changes. It’s unlikely that all Nebraska crack-cocaine defendants will be immediately eligible for early release, he said. Release dates, if granted by judges, will vary depending on the amount of time left in a sentence.

Once released, inmates are supervised by federal probation officers, usually for a period of years. Rowoldt said the number of defendants on supervised release could swell starting next year because of the guideline changes, but not to the point of overwhelming his staff.

The office oversees 1,300 to 1,400 defendants on supervised release each year, he said.

“It’ll be significant, but manageable,” he said. “This district isn’t impacted like other districts. Here (the illicit drug of choice) is mostly methamphetamine.”

Rowoldt said he anticipated additional leg work updating pre-sentencing investigations for judges to use in considering sentencing reductions. The updated versions of the investigations would include defendants’ behavior in prison.

He said court officers, including judges, attorneys and probation officers, who work within the U.S. 8th Circuit Court’s jurisdiction, are scheduled to meet in St. Louis in February to discuss how to respond to the guideline changes.

The sentencing commission revised the guidelines after years of criticism that the penalties for crack were far harsher than those for powder cocaine. Critics charged the guidelines were racially unfair because crack defendants are overwhelmingly African American while whites make up a majority of powder cocaine offenders.

According to a sentencing commission report in October, blacks comprise nearly 86 percent of defendants eligible for early release because of the guideline changes. Whites make up about 6 percent of the total, the report stated.

Eligibility for a reduction doesn’t mean one will be granted. Kopf said he anticipates judges will be able to consider a defendant’s dangerousness and likelihood to re-offend, regardless of eligibility for an early release.

He said he expects the sentencing commission to give jurists more guidance in the coming weeks.

“I kind of expect the sentencing commission will give us more information on the kinds of things we should be looking for,” he said.

Mary Price, vice president and general counsel for the Washington, D.C.-based advocacy group Families Against Mandatory Minimums, applauded the guideline changes, but said more needs to be done.

Lawmakers enacted tougher penalties for crack cocaine, she said, assuming, among other things, that the drug had an usually strong link to violence. Price said the link has been debunked.

She said the guideline changes will mean a sentence reduction of 15 months for the average defendant.

But wide disparities between crack and powder cocaine persist in federal law, she said.

The sentencing commission only tweaked the guidelines, Price said. The mandatory minimum sentence of five years in prison for possessing or distributing five grams of crack is the same mandatory minimum for 500 grams of powder cocaine.

That’s a 100-to-1 ratio enacted by Congress, and it would take an act of Congress to undo, she said.

“The commission lowered the guidelines modestly,” Price said. “The next actor that needs to weigh in is Congress.”

Reach Clarence Mabin at 473-7234 or cmabin@journalstar.com.