Releasing Crack Convicts Early

The first batch of convicted crack cocaine dealers will getting out this year, and Virginia will feel the brunt.

In the coming months the first trickle of convicted crack cocaine dealers is expected to head home from prison months, if not years, earlier than expected—a result of recent changes in the sentencing guidelines that will retroactively lower the punishment for most defendants convicted of peddling the addictive drug.

The move is a historic shift from a controversial policy that for 20 years has punished crack dealers far more harshly than those selling the drug's powder form. But no place in the country will feel the impact of the changes more than the Eastern District of Virginia, which has 7 percent—1,404 cases—of the nation's 19,500 individuals impacted by the new guidelines. That is nearly double the amount in the next highest areas, the middle district of Florida and the district of South Carolina.

How this stretch of Virginia, which runs from the border of Washington, D.C., through Richmond and Norfolk, came to host more most federal crack cocaine cases than any other district has little to do with the prevalence of drug trafficking. Rather, the disproportionate share of affected individuals serves as an example of how the politics of criminal justice is always local.

Virginia has always been a law-and-order state. But the high level of prosecutions goes back to the crack epidemic in the late 1980s and early 1990s when the state capital, Richmond, became one of the nation's murder capitals as well. "Everyone agreed that something had to be done," says Andrew McBride, a former federal prosecutor in the Eastern District.

Frustrated that local prosecutors treated crack cases as only misdemeanors, the U.S. Attorney's office began working with local law enforcement to prosecute them on the federal level, where mandatory minimum sentences make jail time much longer. The federal law enacted in 1986 kicked in the mandatory five- and 10-year minimum sentences at a rate 100 times greater for crack cocaine than for the powder variety. And unlike most large federal jurisdictions which tacitly, if not formally, limit their caseload to those involving higher quantities of drugs, the Eastern District of Virginia had no such barrier.

The choice to prosecute under federal law angered some federal judges and defense attorneys who felt smaller dealers overburdened the federal system. "The federal government filled a void that was existing in state prosecutions," says Howard Vick Jr., a federal drug prosecutor in Richmond from 1990-94 and a local commonwealth's attorney in Henrico County, until 2000.

The result was soon clear. By 1993, the Eastern District of Virginia had the fourth-highest number of crack cocaine cases in the nation, then 114.

Then, in 1997, the U.S. Attorney's office decided to crack down on illegal guns. Through a program known as Project Exile, local law enforcement agreed to transfer cases involving illegal gun possession—particularly by felons—from state court to the federal level, where the individuals face a stiffer a five-year mandatory minimum jail time. The effects bled into drug cases because many of the people caught with guns were also charged with crack cocaine dealing. Said Richard Cullen, former U.S. attorney for the Eastern District and later attorney general for Virginia: "We were very aggressive for 10 years and that paid off."

There was another factor too. The Eastern District of Virginia is known as the "rocket docket" because judges make sure cases move to trial in just a few months, making it possible to move more cases through the system.

It's a pattern hardly unchanged to this day. In 2006, the Eastern District of Virginia topped the nation in crack cocaine prosecutions with 253—a sign that crack dealers will continue to face heavy enforcement in the region. And Chuck Rosenberg, U.S. Attorney for the Eastern District of Virginia has no regrets. "It's a federal crime, so I don't apologize for prosecuting it."