Reggie Walton

The federal judge who dropped the hammer on Lewis u201cScooteru201d Libby explains his crusade against crack sentencing laws.

By Kai Wright May 01, 2008

In 2007, the U.S. Sentencing Commission shortened average sentences for crack offenders by two to three years and cleared almost 20,000 federal prisoners to petition for that reduction. You’re known as a hard guy on the bench, particularly on drugs. And you served in the drug policy office of the first George W. Bush administration.

What are you doing advocating for these sentence reductions?

Our sentencing structure has to be fundamentally fair and—maybe just as important—perceived to be fundamentally fair. Unfortunately, there are a lot of people in our society, especially people of color, who feel that the sentencing structure as it relates to crack cocaine and as it compares to powder cocaine is not fair. As a result, I’ve seen jurors who refused to serve. I’ve seen jurors who, despite the strength of the government’s case, would not convict. I don’t think it’s helpful for our culture or our community if you have a sizable number of people who feel that aspects of the criminal justice system are unfair. That ends up tainting the entire process.

You talk about perceptions, but do you think in fact it is skewed racially?

I do not believe there was an intent to target African Americans. Clearly, there was a desire to impact a problem that at that time, back in the mid ’80s, was in fact having a severe impact on the African-American community. There also was a belief, which has proven to be untrue, that crack cocaine had different chemical qualities that made it more addictive than powder cocaine and that it had a greater impact on fetuses. It was because of that that it was felt that there should be a difference in the sentencing. [One gram of crack cocaine is treated in federal law as 100 grams of powdered cocaine.]

When did you look up and say, “Hey, there’s something wrong here with the way we’re working this.”?
I felt a concern about the disparity when I was on the local court. I had jurors express concerns about the fairness of the sentencing structure, even though they were sitting in the local court and you didn’t have that disparity in play. It became a lot more pronounced to me once I came over here to the federal court in 2001, because I was now actually dealing with situations where I saw the disparity in play. I’m not suggesting that people who sell drugs don’t cause harm to communities and therefore should not be punished. But I think it doesn’t make sense to spend the amount of money we spend to lock up somebody for an extended period of time when a lot lesser sentence would probably serve the same objective, especially if you’re talking about a low-level street dealer.

Some say it’s actually not effective, in that you target the wrong folks. Are they catching the right people?

We’re starting to get a number of cases involving major traffickers from Colombia and some of the other countries that are source countries. So we’re getting some of them. Admittedly, it’s a lot more difficult to get them, because they are insulated for a lot of different reasons. They do things, obviously, to protect themselves. And truth be told, it is a lot easier to go out on the street and see somebody selling drugs and make a bust there, as compared to building a major conspiracy case.

The Justice Department has urged Congress to block the change from being retroactive, arguing that the petitions will overwhelm the court system and send a lot of killers into the street.

I don’t think the sky is gonna fall, because I do have faith in my colleagues, that we will exercise our discretion appropriately to determine if an individual does pose a danger and that if they do, we won’t release ‘em. But the reality, contrary to what is suggested, is the vast majority of crack offenders are not violent offenders. I believe over 90 percent of the individuals who are serving sentences for crack offenses are there for just selling crack; there’s no evidence of any violence in their histories.

But won’t it be a burden on the system to sort through all these cases one by one?
It’ll be more of a burden, but we’re talking about 1,600 cases this first year, spread around the entire country, and we’ve got 600 federal district judges. So you’re not talking about huge numbers; it’ll be larger in some jurisdictions than others. But even to the extent that it does impose a greater burden, it seems to me that if a decision has been made—as the Sentencing Commission concluded—that the disparity is fundamentally unfair. Just because I’m going to have to work a little harder as a judge to address that fundamental unfairness is not a sufficient reason for me to say that we shouldn’t try to address the problem.