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The U.S. Sentencing Commission usually operates in relative obscurity, generating eye-straining charts that judges use to calculate how much time convicted defendants must serve in federal penitentiaries. Suddenly, however, the commission has gotten caught in a crossfire with the Department of Justice and House Republicans on one side, and, oddly enough, Senate Republicans on the other side. The issue generating the sparks is how to sentence low-level drug couriers who are caught with high levels of illegal narcotics. The controversy is only a precursor for another hot debate that will reignite this week: whether the sharply different penalties for possessing crack and powder cocaine should be equalized or at least brought closer together. The Senate Judiciary Committee has called a hearing on the issue for Wednesday. After trying unsuccessfully to minimize the crack/powder cocaine disparity with controversial proposals in 1995 and 1997, the commission is expected to unveil new, more cautious recommendations in time for the hearing. “The commission has tried very hard to do something meaningful and work with Congress on this,” says Julie Stewart, president of the Washington, D.C.-based Families Against Mandatory Minimums (FAMM). But the Justice Department and House Republicans, she says, “don’t want them to change anything. They’ve thrown cold water on the commission.” The seven-member commission is currently filled by appointees of former President Bill Clinton; by law, only four can be from one party. Among the members are Michael O’Neill, a one-time law clerk to Justice Clarence Thomas and former aide to Sen. Orrin Hatch, R-Utah, and John Steer, once a top aide to conservative Sen. Strom Thurmond, R-S.C. The commission chairwoman is Diana Murphy, a judge on the 8th U.S. Circuit Court of Appeals who was nominated to the trial court by President Jimmy Carter and then elevated by Clinton. Despite its bipartisan makeup, the commission was unanimous May 1 in submitting to Congress a recommendation to alter how certain drug sentences are computed. The proposal would cap, at 10 years, the sentence that could be imposed on defendants deemed to have played a minor role in a drug operation, even if they were caught with large quantities of drugs. The commission submits to Congress the changes it wants to make to federal sentencing guidelines. Congress rarely exercises its prerogative to override the commission’s proposals. The recent proposal was aimed at lessening sentences for couriers, lookouts, or so-called mules who play an unwitting or minimal role in a drug operation. Currently, quantity is the main factor determining drug sentences, meaning that higher-ups with small amounts of drugs on their person might be sentenced less harshly than couriers. “These low-level offenders receive quantity-based penalties that exceed their culpability,” commission counsel Charles Tetzlaff told a House Judiciary Committee subcommittee hearing May 14. The 10-year cap, Tetzlaff said, will still provide substantial punishment even for low-level operatives. And, seeking to reassure House members, Tetzlaff said the cap would affect only 6 percent of drug cases that come through the federal courts. The commission’s view was seconded by James Rosenbaum, chief judge of the U.S. District Court for the District of Minnesota. “I am no bleeding heart,” Rosenbaum, a Reagan appointee, told the committee. Nonetheless, he went on to recite case after case in which he or other judges have had to apply quantity-based penalties to low-level defendants. “There is certainly a quantity of evil afoot in the land, but there are still common people who make very stupid decisions,” said Rosenbaum. “The present sentencing system sentences minor and minimal participants who do a day’s work, in an admittedly evil enterprise, the same way it sentences the planner and enterprise-operator who set the evil plan in motion and who figures to take its profits.” But the committee also heard the conflicting view of the Justice Department. “From the standpoint of drug quantity, the worst defendants — those involved in the largest conspiracies distributing the largest quantities of drugs — would receive the biggest break,” said John Roth, chief of the Asset Forfeiture and Money Laundering Section at Justice. “As prosecutors we focus on attacking entire organizations. It is insufficient just to take out the leaders, and it is insufficient just to take out the soldiers.” The Justice Department won the day, convincing the House subcommittee to approve a bill that would block the commission’s recommendation. The main sponsor, Rep. Lamar Smith, R-Texas, said the commission’s recommendation “takes a step in the wrong direction in America’s fight against illegal drugs and sends the wrong message to anyone willing to participate in the trafficking of illegal narcotics.” The full Judiciary Committee and the House itself are expected to pass the Smith bill, HR 4689. But in the Senate, the measure is likely to run into opposition from key Democrats and Republicans alike. If the bill fails in Congress, the commission’s new guideline will take effect Nov. 1. Sens. Hatch and Jeff Sessions, R-Ala., have co-sponsored a bill that goes most of the way toward adopting the Sentencing Commission proposal, though it would not encompass the 10-year cap for some slightly more involved defendants. When the bill was introduced last December, Sessions said it would “ensure a more just outcome — tougher sentences on the worst and most violent drug offenders and lighter sentences on lower-level, nonviolent offenders.” Senate Democrats have also advocated an approach similar to Hatch and Sessions’. Stewart, whose FAMM organization has lobbied Congress on sentencing issues for 11 years, says it is not hard to explain why House and Senate Republicans take opposite views on sentencing adjustment. Rep. Smith, the crime subcommittee chairman, and chief counsel Jay Apperson are “dogged on sentencing,” says Stewart. “They don’t want to see any benefit given to anyone.” Neither Smith nor Apperson returned calls seeking comment by press time. Hatch and Sessions, by contrast, have taken to heart some of the stories conveyed by FAMM and others about defendants “who are doing too much time,” says Stewart. The Hatch-Sessions bill also deals with the crack/powder cocaine issue. Currently, possession of five grams of crack or 500 grams of powder cocaine trigger the same five-year minimum sentence — a disparity that critics say unfairly punishes poor and minority populations that traffic in crack more than those that deal in powder. Hatch and Sessions would increase the minimum amount of crack triggering a five-year sentence to 20 grams, and would reduce the powder five-year trigger to 400 grams. The Sentencing Commission is expected to raise the crack minimum to “not less than 25 grams” but not touch the powder minimum at all — a long way from its 1995 proposal to equalize the required amounts for both. The commission decided to issue its cocaine recommendations separately from the drug courier maximum and other more routine guideline changes issued May 15. It is difficult to predict how the new cocaine proposal will sit with Congress, but Stewart is optimistic, especially with key Republicans like Hatch and Sessions advocating change. Stewart says, “These sentencing issues go through cycles, and things are picking up right now. This could be the year for some changes, and if not this year, then next.”

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