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Thousands Of Prisoners May Be Eligible For Early Release

MICHEL MARTIN, host: I'm Michel Martin and this is TELL ME MORE from NPR News. Coming up, President Obama's speech on Middle East policy late last month put the Israeli-Palestinian conflict front and center. In that speech, Mr. Obama mentioned an Israeli father who lost his son in the conflict. He's now working together with Palestinians for peace. We will meet that father in a few minutes, along with his Palestinian counterpart. But first we go to another front in a war in this country, the war on illegal drugs.

For years, activists have been campaigning to narrow the gap at the sentences drug offenders have received for selling crack cocaine versus powder cocaine. A law passed just last year by Congress lowered prison sentences for crack cocaine offenses. And yesterday, the U.S. Attorney General, Eric Holder, said many inmates who are already in prison should benefit from the intent of the law as well, retroactively. That means as many as 12,000 inmates who was in prison for crack cocaine offenses could get out early. The U.S. Sentencing Commission is hearing testimony now and may decide in the coming weeks whether those inmates will be able to apply for early release.

We wanted to talk more about this. It's actually a very emotional issue and people feel very strongly about this. In a few minutes we're going to hear from a woman who has already benefited from early release. She was released from a 15-year prison sentence. We'll hear from her just a little bit later in the program. But first, two opposing voices in this debate. Michael Nachmanoff is a public defender in Eastern Virginia.

About 1,000 prisoners in his district would be affected by the commission's decision, more than any area in the country. He testified before the U.S. Sentencing Commission. We caught up with him on the phone in Baltimore, where he is today. Welcome Mr. Nachmanoff, thanks so much for joining us.

MICHAEL NACHMANOFF: Thank you, glad to be here.

MARTIN: Also with us, Christopher Chiles. He's chairman of the board of the National District Attorney's Association. He's also the prosecuting attorney in Cabell County, West Virginia. We caught up with him on the line from his office in Alexandria, Virginia where he is today. Thank you so much for joining us as well.

CHRISTOPHER CHILES: Thank you for having me.

MARTIN: Mr. Nachmanoff, if you could just refresh people's memories about why this issue is before us anyway. What is the difference in the sentencing - or what had been the difference in the sentences handed out to people who were selling crack cocaine or were involved in crack cocaine versus powder cocaine - and what have been the impli - and what has been the result of that disparity?

NACHMANOFF: Sure. The original disparity was 100 to one on the basis of weight. In other words, the punishment would be the same for someone who trafficked in only five grams of crack cocaine - which is the equivalent of a single packet of sugar - and that penalty would be the same as trafficking in 500 grams of powder cocaine. So, 100 times as much. The penalty was much, much more severe for crack cocaine. Congress has now passed the fair sentencing act which reduces that ratio to 18 to one - which is much closer to what we believe it should be, which is one to one.

Crack cocaine and powder cocaine are pharmacologically identical. When the law was originally passed, there was a mistaken belief that crack cocaine was more serious and led to more serious crime. Now, as recognized by the Attorney General himself, those myths have been debunked and Congress has acted with a lot of courage to correct the situation. And now, the question is whether or not those people who were sentenced too harshly - which has had an enormous racially disparate impact - will get some relief, some modest relief, by being released early after their cases have been heard by a judge to determine whether or not it's appropriate for them to get that benefit.

MARTIN: And you believe they should?

NACHMANOFF: Absolutely.

MARTIN: Because...

NACHMANOFF: Because these sentences were unfair in the first place, and this ratio has had a corrosive and pernicious affect and undermined respect for law throughout the entire United States, but especially in the African-American community. This law has had a racially disparate impact. Overwhelmingly, the people prosecuted in federal courts for the distribution of crack cocaine are African-American and they have been punished too harshly. And this would give them an opportunity to have those sentences lowered.

MARTIN: Mr. Chiles, you heard the argument which the government and the Congress has now accepted - the administration has now accepted that these initial original disparities were based on flawed science, in essence - so, why isn't it a good idea to apply the law retroactively?

CHILES: Well, first of all, the reasons - some of the reasons that the initial disparity was so different had to do with the dosage units. The dosage unit for crack cocaine is much less than the normal dosage unit for powder cocaine. Additionally, I would disagree with Michael, I think there's plenty of evidence that there is much more violence which goes along with the crack cocaine trade and the dealers, and the other crimes that people commit, either to get money to buy the crack or while they were on the crack.

So, there were valid reasons for the differences in sentencing ratios. NDAA however, did agree last year that the sentencing ratio of 100 to one was probably too far, and we supported and testified in Congress in support of the present 18 to one ratio. We think that is appropriate for now, but we don't think it's appropriate to apply it retroactively. When these people were charged, they had attorneys, they had plea negotiations, and they knew what their sentencing guideline ranges were and they pled guilty based on the offenses which they committed.

MARTIN: But Mr. Chiles, can I just ask you this? I just - reading your testimony from yesterday - you also testified before the sentencing commission.


MARTIN: One of your comments that caught my eye was, you said that to arbitrarily, now, retroactively apply these new sentencing guidelines, totally negates the thoughtful and reasoned negotiations which the federal prosecutor engaged in, originally, at a time when he or she knew far more about the individual and the appropriate sentence. And this result would have a negative effect on our communities. I mean, are you saying that because people worked really hard on these sentences, that if they're unfair they shouldn't be revisited?

CHILES: No, what I'm saying is that prosecutors - when they have a case before them - they look at the offender, how dangerous he is, the seriousness of the offense, and they come up, in their mind, with what sentence or sentencing range they felt to be appropriate. And all of that was done on a level playing field with everybody knowing what the penalties were. And additionally, in many of these cases, if not most, these people also had state charges pending. And in these cases, the state prosecutors often agreed to not prosecute their state charges based on the sentence which was received in federal court.

If we now go back and apply those sentences and reduce them retroactively, the state and local prosecutor, who might otherwise have proceeded with those charges, are now prohibited from doing so due to the passage of time. And that is patently unfair.

MARTIN: If you're just joining us, you're listening to TELL ME MORE from NPR News. We're talking about whether a law that lowers the prison time for crack cocaine offenders - which was punished far more heavily in the past than powder cocaine - whether that law should be applied retroactively to inmates who are already in prison. We're speaking with Michael Nachmanoff. He's a public defender in eastern Virginia. He supports the - applying the law retroactively; and Christopher Chiles, Chairman of the Board of the National District Attorney's Association. He's also the prosecuting attorney in Cabell County, West Virginia. He opposes that. The second part of your statement, Mr. Chiles, was that this would have a negative effect on the community. Talk about that. Why do you think that?

CHILES: Yeah, for a variety of reasons. First of all, there has to be finality. And again, many of these people also committed other crimes and they are often crimes which had victims - burglaries, aggravated robberies, different things like that. Those victims deserve some finality. They deserve to know that the sentence was imposed and that it's going to stay. Additionally, you have to keep in mind, state and local prosecutors across this country, prosecute between 95 and 97 percent of all the criminal cases in this country.

So, only a very small percentage are even prosecuted in federal court. Those that go into federal court are there because they've earned their way there. The average age of these people is over 30 years of age. These are not 18- and 19-year-old kids who made a mistake. These are people who are old enough to know better, should have known better, and they had prior convictions.

MARTIN: What about - can I just ask you - I'm going to go back to Mr. Nachmanoff in a minute, but Mr. Chiles, could you just address his earlier point? The two points that he made. One is that this disparity has bred contempt for the law. It has bred contempt for the law because it is perceived as manifestly unfair and has had a racist impact. Could you address that?

CHILES: Yes, I would absolutely disagree that the public perception is that these laws were unfair. I think the majority of the public feels like, if anything, drug offenders and all offenders should be punished more harshly than they are, not less. I will agree that there is certainly a significantly higher percentage of African-American people in prison. But when we prosecute cases, we don't look at the color of someone's skin or their race or their religion, we look at the offense. And unfortunately, it so happens that most of the crack dealers are African-American. And I agree that that's, you know, something that needs to be worked on, it needs to be addressed. There's a variety of reasons, socioeconomic and lots of other things. And I agree that that problem needs to be addressed, but I don't think it's a situation of us systematically looking to incarcerate African-Americans.

MARTIN: OK. Let's let Mr. Nachmanoff respond to that, please.

NACHMANOFF: First, let me make this point. Because crack cocaine and powder cocaine are pharmacologically identical, it means that the laws that have been on the books have meant that the overwhelmingly white and Hispanic wholesale dealers of powder cocaine have been punished less harshly than the retail street level dealers of crack cocaine who are overwhelmingly black.

No one, but no one can defend that - that wholesale dealers of the same substance that are being sold at the street level at a much lower level should be punished less harshly. And that is exactly what has undermined confidence in the criminal justice system. And that's what can be remedied now. The former DEA administrator, Asa Hutchinson, also testified yesterday in favor of retroactivity.

This is about remedying one of the worst stains in the criminal justice system and allowing these people to get out of jail just a little bit earlier. This is not a question about letting the doors of the jail open and allowing people to go free. These individuals will have served on average at least 10 years in prison, if not longer. And their sentences are now going to be lowered on average somewhere in the order of one, two, maybe three years at the most.

We went through this process two years ago and 16,000 defendants had their sentences lowered. That process nationally went extremely smoothly. And we now know that the recidivism rates for those individuals who were released early was, in fact, lower than a comparable group from the general population.

MARTIN: We're going to hear from somebody who was released early in just a few minutes. But I did want to ask you to address Mr. Chiles's point, that this is destructive of the community and that people knew what they were doing, whether fair or unfair, they knew what they were doing. These sentences - they went to a process that was - they went through the process. It is the process. It may not be perfect, but it's the process that was in place. And that people need to pay a price for that.

And also, the whole question of the finality of it. Could you talk about that for a minute briefly?

NACHMANOFF: Yes. I respectfully disagree that the process at the time was fair. And everyone from the president of the United States on down now recognizes that the rules under which those plea negotiations took place and those trials took place were unfair. Defendants had their hands tied and prosecutors had their hands tied, often knowing that the sentences that they were going to be seeking were too harsh.

This is not about letting people go free. It's not about people getting off without a significant consequence. It's about having some equity and some fairness for these people and lowering their sentences was the fair thing to do. The sentencing commission has the authority to take final sentences. And when there's a community view that recognizes that people were punished too harshly, they have in the past not only with crack cocaine but in other circumstances lowered penalties. This is one of those exceptions where it's extremely important.

MARTIN: We need to leave it there for now. Mr. Chiles, we owe you a last word so perhaps you'll come back and talk about whether - if there are next steps in this debate going forward. You just heard from Michael Nachmanoff. He's the lead public defender in the eastern district of Virginia. He testified before the U.S. Sentencing Commission yesterday. He was with us from Baltimore.

We also heard from Christopher Chiles. He's the chairman of the board of the National District Attorneys Association. He's the prosecuting attorney in Cabell County, West Virginia.

This is TELL ME MORE from NPR News. Transcript provided by NPR, Copyright NPR.