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First of crack convicts freed after sentencing reform

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  • NEW: At least a dozen more inmates are expected to be released by day's end
  • One gram crack, 100 grams of cocaine previously commanded same sentences
  • Advocates say crack users often black, while powder cocaine users typically white
  • Nearly 1,600 federal inmates eligible to ask court to reduce their sentences
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From Kevin Bohn
CNN
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(CNN) -- At least four federal inmates convicted on crack cocaine charges were freed Monday, a result of federal efforts to close the gap between sentences doled out for crack and for its purer, powder counterpart.

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Judges could reduce sentences or grant early releases for thousands of inmates convicted on crack-cocaine charges.

The four prisoners were released from federal institutions in Virginia, according to Michael Nachmanoff, a federal public defender representing them. At least a dozen defendants were expected to be released by day's end, according to several lawyers.

The U.S. Sentencing Commission, an independent federal agency that advises the three branches of government, made retroactive its decision allowing imprisoned crack offenders to request lighter sentences.

The December decision was based on the difference in prison terms handed out for crack convictions, largely affecting blacks, versus terms for powder cocaine, most often affecting whites. Crack cocaine offenses typically demand stiffer sentences.

Approximately 1,600 federal inmates are eligible to ask a court to reduce their sentences because of the December decision. Judges could eventually reduce sentences for nearly 20,000 inmates.

Advocates of sentence reduction say it's only fair, but the Justice Department counters that the move will allow dangerous criminals back on the street. Video Watch why officials are worried about inmates' early release »

The Justice Department is concerned "that so many people would be released all at once -- people who have shown that they are repeat offenders -- and without the possibility of any kind of transition or re-entry program to bring them from prison back to the streets," Deborah Rhodes, an associate deputy attorney general, said.

But lawyers and groups that have been pushing for sentencing reduction disagree. They say that most of the prisoners are not hardened criminals. Also, they add, judges will have to approve any reduction on a case-by-case basis and won't likely grant early releases to criminals considered dangerous.

"Judges have a lot of discretion," said Nachmanoff, whose office filed 16 motions for early release. Some of those will be going to halfway houses, he said.

"If [judges] view a particular defendant a public danger there is nothing in the law that obligates them to lower that sentence," he said. Judges "can also impose intermediate protections as well or refer someone to a halfway house, or to home confinement."

The U.S. Supreme Court ruled 7-2 in December that judges can impose shorter prison sentences for crack cocaine. If judges approve reductions, the Justice Department hopes they will be limited.

The Supreme Court case dealt with Derrick Kimbrough of Norfolk, Virginia, who according to court records, pleaded guilty to distributing more than 50 grams of crack cocaine.

Federal sentencing guidelines called for at least 19 years behind bars. Judge Raymond Jackson instead gave Kimbrough 15 years, calling the case "another example of how crack-cocaine guidelines are driving the offense level to a point higher than is necessary to do justice."

A federal appeals court later overturned the case and sent it to a higher court, claiming Jackson's discretion was "unreasonable when it is based on a disagreement with the sentencing disparity for crack and powder cocaine offenses."

But writing for the majority in the Supreme Court's decision, Justice Ruth Bader Ginsburg said it is important to preserve judicial discretion, while ensuring most sentences remain within federal guidelines.

Attorney General Michael Mukasey told a police group last week that statistics from the Sentencing Commission show that nearly 80 percent of the almost 20,000 who can ultimately apply in the coming years for reductions have a prior criminal record.

The commission, however, in a recent report pointed out that only 1 percent of the 1,600 immediately eligible were considered "career criminals."

Previously, a person with one gram of crack would receive the same sentence as someone with 100 grams of the powder version.

Those advocating sentencing reform, such as the Families Against Mandatory Minimums, argue that such a ratio is discriminatory, and they point to a racial issue associated with the disparity in sentencing. Many of those found with crack are African-American, while powder users are mostly white.

While the commission set Monday as the date for the retroactive measure to take effect, some of the eligible prisoners are already free. Because the panel's date was advisory, judges were allowed to make their own decisions.

Public defender David Porter, who works in Sacramento, California, said that judges there had already approved the release of two of his clients.

Since the December ruling, lawyers have been filing motions for many of those eligible so they could be released as close to March 3 as possible, if judges approve.

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Other inmates, such as 60-year-old amputee Burton Hagwood, who has been in prison since 2000, petitioned the actual courts. His wife, who did not wish to be identified, said he is not violent and would not be a threat to society.

"He wants to come back to the community. And he also wants to help the community. He plans on doing some paralegal work when he gets out. So he would be an asset," she said. E-mail to a friend E-mail to a friend

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