New sentencing rules stun first-time drug offenders

December 01, 1991|By David Simon | David Simon,Federal Bureau of Justice Statistics Stiffer U.S. drug sentences: a new deterrent? Federal Bureau of Justice Statistics and Maryland Division of Correction

An article in Sunday's editions incorrectly reported that during William Kincaid's February 1989 arrest for an attempted drug purchase at Baltimore Washington International Airport, a gun was recovered from the trunk of Kincaid's car. In fact, the weapon was recovered from Kincaid himself.

The Sun regrets the errors.

William "Billy" Kincaid holds the receiver tight to his ear to keep out the background noise of an Arkansas prison. Somewhere behind him, a correctional officer is yelling something about the afternoon count.

"I gotta go," said Kincaid, 30, serving a 15-year, no-parole sentence at the federal facility in Texarkana. "But what I'm trying to say is that I know I messed up and I know that I've got time coming to me. But 15 years without parole? I'd get less time if I murdered someone."

FOR THE RECORD - CORRECTION

True enough. In Maryland, a life sentence for first-degree murder generally means parole after 16 to 18 years in prison; the average murder sentence, 20 years, would bring parole in seven or eight. Kincaid murdered no one, but he's no angel either. He dealt drugs -- and for that he joins thousands of other first-time drug offenders who are now filling the federal prison system at an extraordinary rate.

Consider Jesse Ellis, a 65-year-old retiree with a spotless record who nonetheless made several trips as a drug courier and allowed her granddaughter to use her home in Westport in southern Baltimore to store cocaine. Caught in a 1989 federal drug conspiracy case, Ellis was given five years, no parole.

Or consider the prosecution of Barbara Hudson, an Eastern Shore woman with no criminal record but a history of cocaine use who allowed herself to be used as a "mule" on a handful of occasions, carrying packages of cocaine from Florida to Maryland. She received five years and three months without parole.

To those unfamiliar with the criminal justice system, punishments of five years or even 15 years may sound insignificant. In fact, such sentences issued without possibility of parole for first-time drug offenses are stunning.

As a point of contrast, a defendant in state courts would serve five years in prison if sentenced to about 15 years. And yet of 13,738 defendants charged with drug offenses in Maryland last year, just 124 were sentenced to more than 10 years.

"If you're charged federally with drugs, you're going to go to jail -- in some cases for a long time," said Harvey E. Eisenberg, coordinator of the federal drug task force here. "That's the new deterrent."

The deterrent comes in the form of a federal sentencing structure that has held sway in U.S. courts since November 1987. New mandatory sentencing guidelines -- the work of a commission created by Congress -- are coupled with two other initiatives: a series of mandatory sentences for some crimes and the elimination of federal parole.

Taken together, these changes amount to little less than a revolution in U.S. criminal justice, according to prosecutors, defense attorneys and, especially, judges -- who have seen their authority eroded by a new sentencing structure that uses statistical guidelines and mandated penalties to predetermine punishment.

Four years ago, a federal judge could listen to lawyers' arguments and then use his own logic and experience in sentencing. Now that punishment is essentially predetermined by the nature of the criminal charge and the defendant's criminal history.

And yet, as revolutions go, it has been a quiet one, with most arguments about the validity of the sentencing reforms limited to legal seminars and law journals. A few retiring judges have been decidedly critical; others have issued opinions unsuccessfully challenging the constitutionality of the new statutes. Outside the system itself, the sea change has been all but ignored.

"The entire federal justice system has been upended, and except for judges and lawyers -- no one is paying much attention," says a U.S. judge in Baltimore, who asked not to be named because he must sentence people under the new rules. "The issues are complicated and it's hard to get the public to focus. Meanwhile, the prisons are filling up."

And filling fast. From 1986 to 1988, when the vast majority of criminal cases were tried under old statutes, the federal prison population increased from 39,000 to 43,800. From 1988 to 1990, with the advent of sentencing reform, the number of federal inmates jumped dramatically, to more than 64,000.

U.S. Bureau of Prisons officials are planning construction of 36 more prison facilities -- for a total of 104 -- and expect the 1995 population to reach 100,000. Moreover, federal wardens acknowledge that more of their prisoners now face lengthy sentences without hope of parole -- a situation suited to a prison riot.

Said Kincaid, from his Texarkana prison: "There are guys coming here now that were sentenced under these guidelines and are looking at years and years. They'll tell you they've got nothing to lose."

'It's nothing personal'

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