WASHINGTON — As federal courts begin the unprecedented task of deciding whether thousands of prisoners should receive lower sentences for crimes involving crack cocaine, some judges are telling poor convicts that they won't get lawyers to help them argue for leniency.
As a result, some prisoners are being left to argue on their own behalf against skilled prosecutors in cases that have already been labeled unjust.
Defense advocates have argued for more than 20 years that the more severe sentences given for crack cocaine offenses, compared to those handed down for crimes involving powder cocaine, were unfair to African-American defendants. A majority of crack cocaine defendants are African-American, while most powder cocaine defendants are white.
Last year, the U.S. Sentencing Commission recognized the disparity and recommended lighter penalties in crack cocaine cases.
Now the 20,000 prisoners who're eligible for the lower sentences must ask a court to reconsider their cases. Many have said they're too poor to hire lawyers to ask for the lower sentences, and judges have appointed federal defenders to represent them at taxpayers' expense.
But other judges have declined to appoint attorneys, saying they aren't needed for what should be a straightforward sentencing matter nor are they required under the Constitution. Judges have the sole authority to appoint such attorneys.
The constitutional right to an attorney after criminal indictment and during trial and sentencing is undisputed. But several federal appeals and district courts have concluded that judges generally don't have to appoint attorneys for convicted criminals who're seeking corrected sentences.
Without lawyers, some defendants with legitimate requests will be overlooked, say federal defenders who're screening many of the crack cocaine cases.
"We're being left to fend for ourselves," said Eyvonne Garrett, a prisoner in Fort Worth, Texas, who was denied an attorney and a lower sentence. "Without an attorney, we don't have a voice."
The number of prisoners who don't have attorneys is unknown. So far, judges aren't tracking the outcomes of the crack sentence-reduction cases nationally.
A lawyer can make a difference. Judges can weigh different factors such as behavior in prison. Although many of the prisoners will be released two to three years early, some have received almost a decade off their sentences.
Meanwhile, crack cocaine sentences are still as much as five times longer on average than powder cocaine sentences, even with the new guidelines.
Garrett, who's serving eight years for distributing more than 50 grams of crack, hoped that with help from an attorney her sentence would be cut in half.
In her request to a judge for an attorney and a reduced sentence, Garrett said that she was getting A's in business courses at a community college. Since she went to prison in 2003, she's participated in drug rehabilitation and in a program in which she speaks to troubled young women.
In a 24-page legal brief opposing her request, federal prosecutors argued that she'd already received a lower sentence and didn't deserve any more time off.
U.S. District Judge Sam Cummings rejected her request for an attorney and agreed with prosecutors on her sentence. He didn't elaborate on his decision in his one-page ruling.
"I was shocked," Garrett said. "I thought I had done everything I was supposed to do."
Garrett, 40, said in a phone interview from prison that she wanted to be released early to care for her five children. A cousin has custody of them.
Garrett said she'd researched the arguments herself "along with a whole law library of ladies" who're in the same situation. Garrett said that one of the women had a case like hers but a judge in another region appointed an attorney for her. The woman was released recently.
"It's a disadvantage not having a lawyer, because we don't have access to the prosecutor," Garrett said. "An attorney can go, and negotiate and work it out."
Garrett said she became involved in crack because her ex-boyfriend was a dealer. She said she wasn't a crack addict, but had introduced him to his connections.
"I made a mistake. I paid the price," she said.
"But just because you become a prisoner, your life isn't stopped. You can continue to better yourself as a human being and as a mother. I am a better person, I can be a good citizen and I will not be returning to prison."
Jason Hawkins, an assistant federal defender in Dallas, said Garrett appeared to be making a legitimate argument for a lower sentence but couldn't compete against experienced prosecutors.
"Not appointing counsel allows the government to run over people as if they're mere speed bumps in this process," Hawkins said. "A litigant with very little schooling is not going to be able to go up against a career prosecutor who is filing 24-page briefs on this issue."
Hawkins, who's handling most of the crack cases in the region, can't represent Garrett without approval from the judge.
Cummings, whose court is in Lubbock, hasn't appointed federal defenders in any of the crack cases that he's deciding. He declined to be interviewed for this story.
U.S. District Judge Barbara Lynn, whose Dallas court is in the same region, has appointed lawyers in all crack cases so far.
"The government is represented by counsel," Lynn said in an interview. "I'm making sure the defendant has counsel, too."
Similar disparities have popped up in Maine, Virginia and Florida as some federal judges have concluded that defense attorneys should be appointed but others decline to do so. In some regions, chief judges have issued orders appointing lawyers to all crack defendants.
Justice Department officials say they aren't automatically fighting such requests.
"For this type of sentence reduction, the law does not grant defendants a right to counsel or to a hearing, and this is one factor to consider in determining how best to apply this new rule," said Peter Carr, a Justice spokesman.
Douglas A. Berman, a professor and sentencing expert at Ohio State University's Moritz College of Law, called the stance a "classic" Justice Department response: Prosecutors won't fight judges who appoint attorneys, but at the same time they won't recognize a right to counsel.
"It's not that they're thinking, 'Gee, we want to screw these defendants,' " he said. "It's that once counsel is involved it turns into a higher-stakes adversarial proceeding for them."
Even so, many judges have concluded that involving defense attorneys is the most efficient way to handle thousands of requests. Federal defenders who are appointed field dozens of calls a day from prisoners and their relatives. In some cases, the lawyers quickly determine that some people aren't eligible for lower sentences.
In Philadelphia, where the chief judge has appointed the federal defender's office to screen an estimated 700 federal crack cases for eligibility, prosecutors and federal defenders meet to go through dozens of cases a week to reach an agreement on as many reductions as possible. Of more than 200 cases reviewed, both sides reached agreement in about 120. In cases where they don't agree, counsel is appointed.
"It's been running very smoothly," said Felicia Sarner, a supervising assistant federal defender. "The prosecutors here realized that if they don't have counsel vetting these cases, they're going to be inundated."
McClatchy Newspapers 2008