Some other districts with lower but still substantial caseloads granted such requests at much higher rates than here. In Northern West Virginia, for example, 98.5 percent of 335 requests considered between January 2008 and May 2009 were granted, according to the commission.
For those who received unjust sentences, the result of having a re-sentencing request granted can be dramatic. The average sentence reduction for offenders from the Eastern District of Virginia so far is about 28 months, or about 17 percent of their total sentence. In at least one case, that has meant a convict who otherwise would have spent the rest his life in prison can one day now expect to walk free.
"Instead of dying in prison, he is looking at a release date," says Austin.
The 100-to-1 Ratio
Today's sentencing fallout traces to the nation's capital in the 1980s.
In 1986, at the height of the national war on drugs and with heightened public concern over the emergence of crack cocaine as a cheap, available alternative to more expensive powder cocaine, Congress passed the Anti-Drug Act. That was the same year Judge Spencer was appointed to the Eastern District court. He was named chief judge in 2004.
At the time the act was passed, proponents of longer sentences for crack offenses argued that such measures were needed because the drug was highly addictive, tied to gang activity and targeted toward children.
The Anti-Drug Act created what came to be known as the "100-to-1" disparity in sentencing between federal offenses involving crack and powder cocaine. It set the same mandatory five-year-minimum prison sentence for offenders who possessed either 5 grams of crack cocaine or 500 grams of powder cocaine.
Many resulting sentences for low-level offenders represent "more [prison time] than people get for kidnapping and murder, and that's just stupid," says U.S. Rep. Bobby Scott (D-3rd), who has sponsored a bill aimed at correcting the disparity. "Crack cocaine sentencing has been proven to be absolutely bizarre."
Worse, critics argued over more than two decades, the law has proven inherently unfair to one segment of society: African-Americans.
"I've lived in the Richmond community and seen generations [of African-Americans] go to jail and come back, go and come back," says Salim Khalfani, executive director of the Virginia State Conference of the National Association for the Advancement of Colored People (NAACP). Crack laws "devastated the community," he says.
The racial impact is hard to deny. Of those identified nationwide as crack offenders eligible for early release in the Sentencing Commission's report, 94.2 percent were men, and 85.9 percent were African-American. Of the 205,289 inmates being held in federal prisons at the end of May, more than one-third were African-American, and 52 percent were convicted of drug crimes.
By contrast, African-Americans make up only 12 percent of the U.S. population and about 19 percent in Virginia.
Baugh argued as far back as Mills' case in 1994 — 13 years before the Sentencing Commission changed its guidelines — that the law was discriminatory. Today, he is even more blunt, saying the war on drugs and hysteria over crack in particular were invented by the law-enforcement community to scare the public and bolster their budgets and power.
"Crack was welfare for cops," he says, providing an easy scare tactic that bolstered budgets and manpower. "The public got sold this bogeyman thing."
But even as the Sentencing Commission considered changing the sentencing guidelines for crack in 2007, saying the vast majority of those who would be released were nonviolent, street-level offenders, Bush administration officials continued to use emotional arguments against retroactive sentencing for crack offenders. Then-Attorney General Michael Mukasey told Congress in February of that year, "Many of these offenders are among the most serious and violent offenders in the federal system and their early release … would produce tragic but predictable results."
Stephen W. Miller, an assistant U.S. attorney for the Eastern District who handles many Richmond-based crack cases, declined to comment for this article. However, he referred Richmond magazine to one case in which a crack offender released early under retroactive resentencing has already been arrested on charges involving a violent crime in the area.
Hugh Ellis Mason was originally sentenced in 2004 to 75 months in prison for crack-related offenses but had his time reduced last fall to 51 months, according to Matt Ackley, the prosecutor who handled the case. He was released in January and now faces charges in Richmond Circuit Court, including murder and malicious wounding, after a March 31 shooting, according to court records.
Austin, the public defender, says calling attention to such cases is fear-mongering. Whether early-release crack offenders are involved in subsequent crimes is irrelevant to the fact that they were sentenced too harshly for an unrelated offense, she says.
"It's separate," she says. "Pointing to the cases where someone gets out and commits another crime is encouraging an unfair and uneven analysis of what the crack-cocaine guidelines mean. It fuels the fire for the public and takes the focus off of the issue."
Project Exile's Example
Public defenders say they are confused about why many seemingly low-level crimes that could have been handled in state courts have been channeled instead to the federal system. Once again, the U.S. attorney's office won't comment.
Some clues, however, may be found in the example of the much-ballyhooed Project Exile, a gun-focused collaboration between local and federal law enforcement in Richmond that dates to 1997. At that time, the city was coping with a seemingly unending wave of murders that landed it near the top of a list of America's most dangerous cities.
In Project Exile, persons arrested with guns who were either already felons or involved with drugs were prosecuted in federal court so they would receive stiffer penalties and be sent far away from bad influences on the street — as well as their families — for many years. It has been widely credited with ending Richmond's murder rampage of the 1990s.
In testimony to the U.S. Senate Subcommittee on Youth Violence in 1999, former Richmond Police Chief Jerry Oliver, who conceived Project Exile in partnership with the U.S. attorney's office, described the process. Basically, he said, beat police officers who came across or arrested someone with a gun who met certain criteria — being a felon, being a drug user or possessing drugs, being a fugitive from another state, being the subject of a restraining order, or if the gun was discovered to be stolen — would refer that case to a multi-agency task force. That group, which included members of the local, state and federal law enforcement as well as the commonwealth's attorney's and U.S. attorney's offices, would then decide whether the case would go to federal or state court.
Oliver, who was chief from 1995 to 2002, told the subcommittee, "Much of Richmond's crime problem stemmed from the trafficking of illegal substances, particularly crack cocaine, and the violent competitive behavior associated with this commerce. Project Exile has provided an avenue of prosecution for firearms-related crimes not previously available under our state system."
Indeed, the number of annual homicides in Richmond dropped dramatically after Project Exile came into play. But some public-safety analysts reject the connection between the two, asserting that the murder rate that had climbed so high in Richmond was bound to fall just as far regardless of Exile.
Concerns From the Bench
Even a federal judge questioned the practice of funneling otherwise local street crimes to the federal courts.
Ruling against an appeal of one Project Exile case that attorney Baugh filed in 1999, Senior U.S. District Judge Richard L. Williams said he had seen nothing to prove that the defendant in the case had been singled out because of his race or other factors. Still, noting that as many as 90 percent of the program's defendants were African-American, he said race-targeting was possible under the system.
"Despite the absence of direct evidence of selective prosecution, the court takes this opportunity to express its concern about the discretion afforded individuals who divert cases from state to federal court for prosecution under Project Exile," the ruling states.
Judge Williams also questioned the use of federal tax dollars to deal with local, street-level crime and pointed out that defendants face whiter juries in federal court than they would in Richmond's local courts, where the general population is majority black. Costs of housing an inmate in federal prison also are higher than for those held in state and local jails.
But while the similarities between Project Exile and crack prosecutions seem striking both in their practice and impact, the public defender's office says it isn't aware of any established process — such as Exile's multi-agency task force — through which individual crack cases have been vetted.
"You can hammer people in federal court, and that's one of the reasons cases are brought here," says Austin. "But who makes that decision on a case-by-case basis? We don't know why some of them are brought federal and some are brought state."
Former commonwealth's attorney Hicks notes that unlike state charges, which can be brought by police, prosecutors or residents, federal charges can originate from only one source. "At the end of the day, the call is made by the U.S. attorney," he says.
Hicks says he was unaware that so many non-gun crack cases were being prosecuted in federal court until recently.
"One of the things we often say about Exile, it wasn't a drug-enforcement tool — it was just guns," he says. "You never heard us say one thing about drugs. To hear, that during that same time frame, something was happening in the Eastern District of Virginia very different than what was happening in the rest of the country, you have to look at the federal prosecutor's office."
He continues: I'm sure the Exile model between the state and feds created relationships that didn't exist before," in which police officers could refer crack cases directly to federal prosecutors and bypass state courts entirely. "Really, these questions have to be asked because the federal system is shrouded in much more secrecy than the state system."
Rectifying the Problem
In Washington, D.C., a consensus seems to be emerging that the crack/powder cocaine sentencing disparity must end, but how or when that might transpire is unclear.
Undoing the 100-to-1 ratio will literally take an act of Congress. Congressman Scott's bill, known as the Fairness in Cocaine Sentencing Act of 2009, would eliminate the distinction between powder and crack and put an end to mandatory-minimum sentences for cocaine offenses. It is one of several proposals.
"I'm confident that we'll be able to report a bill … that will allow judges to sentence people based on common sense rather than mandatory minimums for which there is no discretion," he says. "Basically, everybody agrees that something needs to be done."
Meanwhile, Austin and her bosses in the public defenders office are waiting anxiously to see how the U.S. attorney's office in Richmond may adapt its strategy since the Obama administration told Congress in April that the current situation is unfair.
Lanny A. Breuer, assistant attorney general for the U.S. Department of Justice's Criminal Division, told Congress that not only is it working to end the disparity but, until that happens, "our prosecutors will inform courts that they should act within their discretion to fashion a sentence [in crack cases] that is consistent" with more general principles of sentencing and not based on the 100-to-1 ratio.
In some districts, such as Northern West Virginia, that communication between prosecutors and the courts already has taken place. It is unclear whether the same has been done in the Eastern District of Virginia. However, Austin says defense attorneys haven't seen any changes in the way prosecutors are handling the cases.
"We haven't seen the U.S. attorney's office joining in a defendant's request or asking the court to sentence a defendant based on a one-to-one ratio based on the DOJ directive that says it should be treated the same as powder cocaine," she says.
Hicks argues the Eastern District of Virginia U.S. attorney's practices — past and present — should be taken into account as President Barack Obama considers making a permanent appointment to the position.
"At the end of the day, this is something the president should be made aware of as he decides who will be the next U.S. attorney," Hicks says.
Baugh takes it a step further, arguing that a federal investigation may be needed.
"There is a systematic pattern," he says. "There may be a variable [in the Eastern District of Virginia] that no one else is using. You have coincidence upon coincidence."
Holding the Sentencing Commission report close to his face and peering across the pages indicating more than 1,400 Eastern Virginians may have been over-prosecuted and over-sentenced for crack cocaine offenses, he says, "That's 13 times the number of people who died from swine flu in America, and we call that a pandemic. This is a pandemic."