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Change in crack sentencing means early releases

WASHINGTON » Darryl Flood thought he would have to wait until 2013 to get out of prison, more than a decade after he pleaded guilty to being part of a conspiracy to distribute crack cocaine.

If all goes as planned, the 48-year-old could walk out of a Kentucky prison two years early, as one of thousands of federal inmates to benefit when a change goes into effect Tuesday changing sentences for crack cocaine to be closer to the penalties for powder cocaine.

Flood’s sister, Susan Cardwell, said she cried after getting a phone call from his defense attorney Monday saying his release has been approved by a Virginia judge.

"He wants to get out, get a job and get his life back together," she said in a telephone interview. "He says he’ll work two jobs if he has to."

The disparity in sentences for crack versus powder had long been criticized as racially discriminatory because it disproportionately affected black defendants. The Fair Sentencing Act passed by Congress in 2010 and signed by President Barack Obama reduced the disparity for future cases.

This summer the U.S. Sentencing Commission, which sets federal sentencing policy, decided to apply the act to inmates already serving time.

The commission estimates about 12,000 inmates could benefit overall. The effect of the change will largely be spread out over the next several years, with inmates getting an average of three years shaved off. But nearly 1,900 prisoners are estimated to be eligible for immediate release Tuesday.

It’s not clear how many individuals will go free on the first day inmates are eligible.

Chris Burke, a spokesman for the Federal Bureau of Prisons, said Monday that officials had already received hundreds of orders for early release from judges and the number has been going up daily, "if not hourly." Prison officials have been given a grace period of several days to release certain inmates.

Those releases and others are the result of months of work by prosecutors, public defenders and judges across the country. Some public defender offices reviewed hundreds of files of potentially affected inmates.

In some districts, defense attorneys and prosecutors agreed that a certain individuals’ sentences should be reduced to time served based on Tuesday’s new guidelines and asked judges to enter orders that go into effect the same day.

The number of affected inmates varies in each federal district.

In San Antonio, Texas, the federal public defender’s office had about 15 to 20 immediate release cases according to assistant federal public defender Kurt May. In St. Louis, public defender Lee Lawless said his office reviewed a list of 400 people who might be affected and ultimately submitted between 30 and 50 petitions asking for inmates’ immediate release. In the eastern district of Virginia, which has the highest number of affected inmates anywhere in the country, public defender Michael Nachmanoff said that by Monday evening judges had signed off on the immediate release of approximately 75 people for Tuesday.

Jim Wade, the federal public defender for Harrisburg, Pa., said he canceled vacation for his 10 attorneys until the first wave of releases is over.

"We’re trying to make sure you don’t serve one more day than necessary. That’s the goal," Wade said.

For families who have loved ones affected by the change, days make a difference. Susan Cardwell said the last time she saw her brother was the day he went to prison. She can’t wait to see him, she said, and has already promised an all-you-can-eat buffet dinner to celebrate his return.

"After jail food for all those years, I’m sure he’s going to pig out," she said.

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