Court Revisits Sentencing Guidelines

By Robert Barnes
Washington Post Staff Writer
Wednesday, October 3, 2007

The Supreme Court yesterday struggled with how to give judges discretion in imposing sentences while still maintaining guidelines that seek to minimize disparities in justice.

The arguments received special attention because they marked the first time the court has considered Congress's 1986 decision to punish users and suppliers of crack cocaine more severely than those involved with powder cocaine.

The "100 to 1" disparity -- trafficking in 5 grams of crack cocaine triggers a mandatory five-year sentence, the same punishment imposed for 500 grams of powder cocaine -- results in higher sentences for African Americans, who are more likely to use that form of the drug, than for whites and Hispanics, who are more likely to use powder cocaine.

The larger question of judicial discretion is a quandary that is partly of the court's own creation, as the justices ruled in 2005 that federal sentencing guidelines must be advisory, not mandatory. Since then, federal appeals courts have sought to come up with standards for reviewing sentences that stray from what the guidelines recommend.

"What are the words that should be written, in your opinion, by this court that will lead to considerable discretion on part of the district judge but not totally, not to the point where the uniformity goal is easily destroyed?" Justice Stephen G. Breyer asked one of the lawyers arguing the cases.

After two hours of arguments, such a standard seemed elusive.

The crack case involves Congress's decision, in response to a rising crack epidemic and the death of University of Maryland basketball star Len Bias, to impose dissimilar treatment for the drugs in 1986.

Derrick Kimbrough, a Gulf War veteran and construction worker, was arrested in Norfolk with 56 grams of crack cocaine and 92.1 grams of powder cocaine, as well as with a firearm. Under the guidelines, Kimbrough faced a sentence 19 to 22 1/2 years, driven by the increased penalties for crack.

Kimbrough's lawyer noted repeated calls from the U.S. Sentencing Commission to reduce the disparity, and U.S. District Judge Raymond A. Jackson agreed, labeling the longer sentence "ridiculous." He sentenced Kimbrough to 15 years, which he said was "long enough."

But the U.S. Court of Appeals for the 4th Circuit reversed that decision.

"Judge Jackson did it right in this case," said Michael Nachmanoff, a federal public defender from Alexandria who represents Kimbrough. He said the sentence honors Congress's intent but creates a just punishment.

But Deputy Solicitor General Michael R. Dreeben said the judge substituted his judgment for Congress's intent and that was a "textbook example of an unreasonable sentencing factor."

It appears that the crack cocaine sentencing guidelines will change regardless of the court's decision. The Sentencing Commission voted in April to reduce the federal minimum sentence for crack, a decision that will go into effect Nov. 1 unless Congress intervenes.

Another sentencing case involves Brian Michael Gall, a former dealer of the drug ecstasy who quit the business and had established a different life by the time he was arrested. A judge gave him probation instead of the three-year prison term called for in the sentencing guidelines.

An appeals court overturned the sentence, saying such an "extraordinary reduction must be supported by extraordinary circumstances."

The cases are Kimbrough v. United States (06-6330) and Gall v. United States (06-7949).

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