After nearly 16 years in prison, Frank Harvey Jr. is making up for lost time and rebuilding relationships with his family and his friends.

Frank Harvey Jr., who spent more than 15 years in the penitentiary, was among the beneficiaries of new sentencing rules for crack cocaine convictions. He and his companion, Bobbie Jones, say he is using his early release to rebuild his life. Photo by Karen Elshout

Convicted of a conspiracy to distribute one kilogram of crack cocaine, Harvey began serving what was to have been a 17½-year sentence in 1993. He was released in April 2008 after U.S. District Judge Donald Stohr, of the Eastern District of Missouri, reduced Harvey’s sentence to 14 years. Harvey had already served 15 years and eight months, so he was credited for time served and released immediately.

Two factors contributed to the length of Harvey’s sentence: that three people, instead of two, were involved in the drug transaction that put him behind bars and that Congress mandated longer prison terms for those, mostly black, convicted of crack cocaine crimes.

Harvey, 56, recalled his younger brother asking him to bring $5,000 to the airport to buy some cocaine from another man flying into St. Louis. But the other man had been caught in Jefferson City, and the police were waiting for Harvey and his brother when they arrived. Because three people make a crime a conspiracy, Harvey got an automatic 10-year minimum sentence, he said.

“I never thought I would get this much time for as little as I had,” he said. “I had one kee, and they said I had 100 kees.”

That’s because under laws passed during Ronald Reagan’s administration one gram of crack cocaine is treated as the equivalent of 100 grams of powder cocaine.

Sentencing disparity

The unfairness of that disparity caught the attention of district court judges, who were required to abide by the U.S. Sentencing Guidelines until the U.S. Supreme Court made the guidelines advisory in U.S. v. Booker in 2005. Booker was followed in 2007 by U.S. v. Gall, which reversed an appellate court requirement that district judges have extraordinary reasons for departing from the guidelines, and U.S. v. Kimbrough, which allowed district court judges to depart from the guidelines when sentencing defendants convicted of crack-related crimes.

The judge who sentenced Derrick Kimbrough cited the disparity between sentences for crack and powder cocaine crimes. The guideline range that applied to Kimbrough, who was involved in a conspiracy to distribute both crack and powder cocaine, was 228 to 270 months, or 19 to 22½ years. But the judge noted Kimbrough’s guideline range would have been 97 to 106 months, or between eight and nine years, if he had possessed only powder cocaine.

The judge took note of the “disproportionate and unjust effect that crack cocaine guidelines have in sentencing.”

The U.S. Sentencing Commission had also been lobbying Congress to do away with the 100-to-1 disparity since about 1995. That year, the commission recommended a 1-to-1 ratio accompanied by sentencing enhancements for such things as using a weapon during a trafficking offense. In 1997, the commission recommended a 5-to-1 ratio, and in 2002 it recommended a 20-to-1 ratio. Congress refused to adopt any of these recommendations.

The commission tried again in 2007. But instead of just lobbying Congress, the commission amended the Sentencing Guidelines by reducing the base offense level associated with each quantity of crack cocaine by two levels. The amendment took effect Nov. 1, 2007, and began being applied retroactively on March 3, 2008.

Harvey was among the first offenders released under the commission’s crack cocaine amendment. He was already living in a halfway house in St. Louis, after doing time in federal prisons in outside of Missouri, when he found out he was being released. He said his scheduled release date was July 3, 2008.

Before the retroactive amendment took effect, officials with the federal courts, federal defender offices and federal probation offices prioritized their lists of offenders eligible for a sentence reduction by their release dates. The offenders whose cases were filed with the courts first were those whose release dates were nearest.

The idea is that “they shouldn’t be made to serve one additional day,” Jim Woodward, clerk of the U.S. District Court in St. Louis, said in an interview last year.

Mandatory guidelines?

There is still disagreement about how much discretion district judges should have when resentencing crack offenders.

Prosecutors say judges may not impose below-guideline sentences on offenders who were originally sentenced in accordance with the guidelines. Defense lawyers say judges have the discretion to depart from the guidelines upon resentencing.

“What is different about this particular provision is that it was amended post-Booker,” former U.S. Attorney Catherine Hanaway said in an interview before she left the public sector.

“The fact that [the guideline] continued to use the mandatory language, certainly as read by us, means we should argue it as mandatory. And the fact that the 8th Circuit now has law on it binds us to continue to take that position,” Hanaway said.

The 8th Circuit first weighed in on this subject on Jan. 13 with a unanimous panel opinion in U.S. v. Starks.

The federal statute allowing district court judges to modify sentences requires that any reduction on an amended guideline be “consistent with applicable policy statements issued by the Sentencing Commission,” the Starks court said. The policy statement at issue bars judges from imposing sentences below the minimum amended guideline range.

Even though the guidelines are advisory for original sentencing proceedings, they are mandatory for resentencing under the new crack cocaine amendment, the 8th Circuit said.

Starks was followed a month later by U.S. v. Harris. This time, Circuit Judge Kermit E. Bye, who wasn’t on the Starks panel, wrote a reluctant concurrence saying district judges ought not be bound by advisory sentencing guidelines.

Bye said the commission’s policy statement “cannot restrict a resentencing court’s discretion to sentence outside of the amended guidelines range because it is, like all of the guidelines, advisory under United States v. Booker.”

Bye relied on the 9th Circuit’s 2007 decision in U.S. v. Hicks, an argument that is being pursued by federal public defenders in St. Louis.

Caterina DiTraglia, the assistant federal defender in charge of crack cocaine resentencings, says it’s a matter of fairness.

“To say that it’s fair that a judge can be able to revisit a case and only revisit a little bit and that the guidelines are mandatory … doesn’t make sense,” she said. Like Bye, she says Booker made all of the guidelines advisory.

The Supreme Court’s Kimbrough decision seems to support that argument. In Kimbrough, the seven-judge majority said, “We hold that, under Booker, the cocaine Guidelines, like all other Guidelines, are advisory only, and that the Court of Appeals erred in holding the crack/powder disparity effectively mandatory.”

“With the language in Booker that says we reject the idea that the guidelines should be mandatory in one context and not mandatory in another, I don’t see how the 8th Circuit comes to where it comes,” DiTraglia said. “But they’re certainly not alone in that.”

“Certainly, we don’t take the position in other instances that the guidelines are mandatory,” Hanaway said. “But we do argue in the vast majority of cases for a guideline sentence. Our arguments for guideline resentencings are not a departure from the general policy of the office.”

Supreme Court appeal?

The 9th Circuit is the only federal appellate court to allow judges to depart from guideline sentences upon resentencing criminal defendants. That may not be enough of a circuit split to entice the Supreme Court to review one of these cases.

Another factor weighing against the Supreme Court reviewing this issue is the fact that only a finite number of offenders are eligible for a reduced sentence under the commission’s crack cocaine amendment.

“You’re not going to have this problem in the future because even though the guidelines have changed, right now when a judge sentences somebody they don’t have to follow the guidelines,” DiTraglia said.

Eric J. Miller, associate professor of law at Saint Louis University, said it’s unlikely that the 8th Circuit will grant a rehearing for any of these crack resentencing cases.

Whether the Supreme Court agrees to address the issue “may depend on what the 9th Circuit does,” Miller said. “If the 9th Circuit aggressively applies Hicks, then it’s more likely to go to the Supreme Court, assuming that someone wants to take it up there.” But that’s still a long shot, he said.

Miller noted that in several of these cases district court judges bemoan the fact that they are required to hand down another guideline sentence and suggest they would impose sentences below the guideline minimums if only they had that authority. But that “handwringing” may not be sincere, he said.

“It may just be a plea directed at the legislature … rather than the prisoner,” Miller said. “It may be that the court wouldn’t have done it any differently – they just would have phrased it differently – had the Supreme Court rendered the guidelines advisory.”

It’s worth asking why district court judges aren’t imposing sentences below the guidelines, he said. “Even in the 9th Circuit, it’s not the district court that’s doing it,” he said.

By the numbers

In the year since, courts throughout the country have considered 19,239 motions for reduced sentences, granting 13,408 of them. The numbers, provided in the U.S. Sentencing Commission’s Preliminary Crack Cocaine Retroactivity Data Report, represent data on motions decided through March 5.

There have been a few surprises in the course of some of these proceedings.

“The one thing that we’ve experienced that we were not planning on is apparently there were some inmates who thought this was just stamped with approval,” said Doug Burris, chief U.S. probation officer for the Eastern District of Missouri. “We’ve had white-collar offenders try to get reduced sentence.

“There have been some denials on cases that were eligible for it,” he added, “but the court said no because the people had had behavioral problems and other issues while in prison. And they didn’t think they were deserving of the break.”

The U.S. District Court of the Eastern District of Missouri has granted 438 of the 497 motions before it, while its counterpart in the Western District of Missouri granted 173 of 280 motions. Missouri’s Eastern District ranks sixth in the nation for the number of motions filed, and Missouri’s Western District ranks 24th.

In the 8th Circuit, 1,781 motions were filed, and 1,379 were granted. This puts the 8th Circuit fourth in the number of motions filed. The circuit consists of Missouri, Arkansas, Iowa, Minnesota, Nebraska, North Dakota and South Dakota.

Epilogue

Since he’s been out of prison, Harvey has been working two jobs – the main one at Weissman Theatrical, where he was hired for the sewing skills he learned in prison.

He’s also living with the woman who stuck by him while he was in prison and he’s reconnecting with their children and grandchildren. Bobbie Jones, 43, says Harvey is worth the wait.

“He’s on the right path, and I think he’s on his way in life,” she said.