Why More Federal Prisoners Will Be Released In Virginia Than D.C., Maryland

Across the United States, federal prisoners serving time for nonviolent drug trafficking convictions are being released early. The U.S. Sentencing Commission is making the move in response to long-standing criticism over mass incarceration, especially for nonviolent drug offenses. But here in the D.C. region, the new guidelines are having uneven consequences.

The commission estimates that 197 inmates will be eligible for release in D.C. and 557 inmates will be eligible for release in Maryland. But 1,785 inmates will be eligible for release in Virginia. That means Virginia is expected to get more than three times as many inmates as Maryland. Does that reflect a difference in how many crimes are committed in those states? Or do those numbers say something about how the War on Drugs is prosecuted differently? 

"They don't necessarily reflect how much traffic there is," says Rich Kelsey, Virginia legal expert. "But it may reflect how much emphasis is on enforcement in a particular area, and some jurisdictions have a much stronger enforcement arm than other jurisdictions."

So what happens to these inmates? Some will go to supervised release. But about a third of them will end up in immigrant detention centers because they are not U.S. citizens.

That leads Alisa Welleck at the Immigrant Defense Project to worry about the 70 inmates who show up at the Farmville immigrant detention center outside of Richmond. "Advocates are asking for every immigrant to have an opportunity to meet with a lawyer," says Welleck. "Unfortunately, they don't necessarily have that right to do that. So we're hoping that the government does give them that right."

The U.S. citizens will end up in supervised release programs, which critics say present barriers to housing, employment and education. One sticking point for many advocates is that federal inmates are released where they were convicted rather than where they have family members or loved ones. For many inmates who may have been arrested for drug trafficking, this may mean they were arrested somewhere along the Interstate 95 corridor far from home.

That's why some advocates are calling on the U.S. Bureau of Prisons to release the inmates to areas where they consider home rather than the areas where they were convicted. 

"The ultimate goal is provide someone with all of the resources they need to not recidivate, says Khalil Cumberbatch, policy associate with the Legal Action Center. "Those resources could be coming from the probation side or from the family. Either which way, it doesn't help a person to successfully reenter if you release them to a state where they have no access to their support system."

Shift in Thinking

Back in April 2014, the U.S. Sentencing Commission voted to reduce the sentencing guideline levels applicable to most federal drug trafficking offenders. The new guidelines lowered the base offense levels, essentially changing the math in how the sentences are calculated. The end result is that larger quantities of drugs will not necessarily bring longer sentences. Members of the commission portrayed the effort as a way to balance public safety with the need to cut down on mass incarceration. 

“Reducing the federal prison population has become urgent, with that population almost three times where it was in 1991," said Judge Patti Saris, chairwoman of the commission in a written statement at the time. "This modest reduction in drug penalties is an important step toward reducing the problem of prison overcrowding at the federal level in a proportionate and fair manner."

Three months later, the commission voted to make the change retroactive. The change meant that offenders who were in prison at the time could be eligible for reduced sentences beginning in November 2015. Now that day has arrived, and the first round of prisoners were released between Oct. 28 and Nov. 2. About 6,000 prisoners were released across the county — about 160 to Virginia.

"Part of this is in response to the well documented, although still argued against, unfair sentencing programs," said Patricia Maulden, Associate Professor of Conflict Resolution at George Mason University. "In the 1980s and 1990s, that was particularly true with sentencing disparities between crack cocaine and powder cocaine."

Inmates who were given sentences now considered excessive show a dramatic racial disparities. More than 87 percent of those given excessive sentences for crack cocaine were black. But less than 10 percent of those given excessive sentences for powder cocaine possession were white.