U.S. Attorney Terrance P. Flynn, the lead federal prosecutor for Western New York, says he may use a legal waiver included in federal plea agreements to prevent crack-cocaine offenders from petitioning for early release under recently amended sentencing rules, the Buffalo News reported Feb. 11.

The U.S. Sentencing Commission recently lowered penalties for crack-cocaine offenses to bring them more in line with penalties for powdered cocaine and made the changes retroactive, meaning that some offenders now in prison could be eligible for release. But the plea agreements signed by hundreds of federal drug offenders in Western New York include a promise that offenders will never ask for a reduced sentence.

"At this point, we haven't decided whether we will try to enforce the waiver," said Assistant U.S.  Attorney Joseph M. Guerra III, Flynn's top drug prosecutor. "We've talked about the situation with [Justice Department] officials in Washington, and we're waiting for guidance or directives from them."

Frank B. Mesiah, president of the Buffalo NAACP, said, "It would be wrong for [prosecutors] to challenge that. If the U.S. attorney follows that policy, he will be adding even more inequities to the system."

Buffalo defense lawyers James P. Harrington, added that such a position "would go against the spirit of what Congress and the sentencing commission were trying to do when they decided that these sentences should be reduced."

Federal judges ultimately will decide who gets released. "This issue [on the waivers] has not come before us yet. If it does come before us, we'll decide on it," said Richard J. Arcara, chief U.S. district judge for Western New York. "There are a lot of complicated issues surrounding the changes in the crack sentences. We're already looking at these issues, and we'll be deciding these cases as expeditiously and fairly as we can. It will be a high priority."