The Crack Gap

Wednesday, October 3, 2007

BY THE END of yesterday's Supreme Court argument in Kimbrough v. U.S., two things seemed clear. First, thousands of defendants charged with crack cocaine offenses will continue to face irrationally long sentences. Second, the justices probably will move further down a path that will lead to the slow, painful death of the federal sentencing guidelines.

The case before the court involved Derrick Kimbrough, an African American military veteran arrested in Norfolk in 2004 with 92 grams of powder cocaine and 56 grams of crack cocaine. Mr. Kimbrough had to navigate two sets of sentencing schemes. By pleading guilty, Mr. Kimbrough guaranteed for himself a prison term of 10 years -- the minimum sentence mandated by Congress for a crime involving 50 grams or more of crack. (Mr. Kimbrough also faced an additional mandatory minimum five-year term for possession of a handgun.) The penalty was stiff -- especially considering that Mr. Kimbrough would have had to possess 5,000 grams of powder cocaine to earn the same sentence -- but it could have been worse. Under the separate federal sentencing guidelines, he could have faced at least 14 years behind bars for the drug charge alone.

Luckily for Mr. Kimbrough, the Supreme Court in an earlier case deemed the guidelines advisory rather than binding, and he was assigned a judge, Raymond A. Jackson, who not only took heed of the court's earlier ruling but found the pumped-up penalties for crack "ridiculous." In the end, Mr. Kimbrough was sentenced to 15 years in total, rather than the 19 to 22 years called for under the guidelines. But the U.S. Court of Appeals for the 4th Circuit concluded that Judge Jackson had no right to ignore the tougher guidelines simply because he disagreed with the policy decision made by Congress to punish crack offenses more harshly.

The constitutionality of crack penalties is not at issue before the Supreme Court. What the justices are being asked to decide is whether Judge Jackson's decision to depart from the guidelines was "reasonable." The answer should be yes. After all, the court itself created this sentencing mess when it declared that judges were no longer bound by the guidelines. Moreover, 15 years behind bars is no walk in the park.

This case once more illustrates the need for Congress to step in to narrow the gap between the penalties for crack and powder cocaine -- a disparity that disproportionately affects African American defendants. Even if the justices give judges more flexibility under the sentencing guidelines, the mandatory minimums will still stand. Several bills to make those minimums more reasonable are pending in Congress, with bipartisan sponsorship. Lawmakers should have the courage to act.

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