Justices Reinforce Leeway on Sentences
Cocaine Disparity At Heart of 1 Case

By Robert Barnes
Washington Post Staff Writer
Tuesday, December 11, 2007

The Supreme Court ruled yesterday that federal judges are not bound by federal guidelines calling for tougher penalties for those who sell crack rather than powder cocaine, giving them broad discretion in drug and other criminal cases.

The justices decided two cases by 7 to 2 majorities, reinforcing their view that formerly mandatory federal sentencing guidelines are advisory only. The opinions gave sentencing judges wide leeway in deviating from the guidelines, which had been enacted to bring national uniformity to the administration of justice, so long as their decisions are reasonable.

In one case, the justices backed a Virginia district judge who denounced as "ridiculous" guidelines that would impose the same sentences on a crack dealer as on a dealer of powder cocaine who sells 100 times as much of his drug. The guidelines have been criticized as racially discriminatory because most crack offenders are black, while powder cocaine is more widely used by whites.

The U.S. Sentencing Commission this year said the disparity was too great for drugs that are much the same. It approved new guidelines, which went into effect last month, substantially reducing the difference.

The commission is scheduled to vote today on whether approximately 19,500 prisoners sentenced under the old guidelines should be eligible to ask courts to cut their sentences.

Marc Mauer, executive director of the Sentencing Project, which has opposed the disparity in punishment, said the court's decision could provide an "impetus" for the commission to approve the retroactivity decision.

The Bush administration was on the losing side in both cases, saying the more lenient sentences in both cases were improper.

The decisions are part of an ongoing struggle within the court to balance the power of a sentencing judge closest to the individual case and the desire for uniformity in sentencing.

In 2005, justices said mandatory guidelines violated the Constitution because judges were called upon to find facts that are a jury's responsibility. The court's remedy was to make the guidelines advisory, but appellate courts have struggled to determine how much district court judges may deviate from the recommendations.

In the crack case, the U.S. Court of Appeals for the 4th Circuit in Richmond said that Judge Raymond A. Jackson did not have the authority to ignore the guidelines he criticized. He gave Derrick Kimbrough, a black military veteran convicted of crack dealing, a sentence of 15 years rather than the 19 to 22 years the guidelines recommended, saying that was adequate punishment for the crime.

Justice Ruth Bader Ginsburg, writing for the majority in the case, said the appeals court had incorrectly treated the guidelines as "effectively mandatory."

"It would not be an abuse of discretion for a district court to conclude when sentencing a particular defendant that the crack/powder disparity yields a sentence greater than necessary," she wrote in Kimbrough v. U.S.

Although Ginsburg pointed out in the opinion that 85 percent of those convicted of crack offenses are black, the decision hinged on the question of judicial discretion, not whether the disparity was unwarranted or discriminatory.

The court was not in a position to strike down a federal law that also incorporates the disparity in calculating minimum mandatory sentences for cocaine trafficking: five years for a person with five grams of crack, and the same for a person selling 500 grams of powder cocaine. Congress has scheduled hearings for next year on legislation that would change those minimum-mandatory laws.

They were enacted in the 1980s, in a reaction to the death of University of Maryland basketball star Len Bias by a cocaine overdose and to an epidemic of crack use that threatened to overwhelm urban areas where its use was most prevalent.

In the other case, the court agreed that a judge was within his rights to impose a light sentence for a man convicted of conspiracy to sell 10,000 pills of the drug ecstasy.

The guidelines said that the man, Brian Gall, should be sentenced to at least 30 months in jail. But a federal judge in Iowa decided on 36 months of probation, saying Gall had quit the drug business years before authorities had found evidence of his involvement and had turned his life around.

The U.S. Court of Appeals for the 8th Circuit said such an "extraordinary" deviation required justification that the judge did not meet.

The Supreme Court yesterday reversed that ruling. "Courts of appeals must review all sentences -- whether inside, just outside, or significantly outside the guidelines range -- under a deferential abuse-of-discretion standard," Justice John Paul Stevens wrote for the court.

The court's struggle over sentencing has split it in ways different from the liberal-conservative divide. Chief Justice John G. Roberts Jr. joined the Ginsburg and Stevens opinions, part of a majority also including Justices Antonin Scalia, David H. Souter, Anthony Kennedy and Stephen G. Breyer.

Justices Clarence Thomas and Samuel A. Alito Jr. dissented in both cases.

"It is possible to read the opinion to mean that district judges, after giving the guidelines a polite nod, may then proceed essentially as if the Sentencing Reform Act had never been enacted," Alito wrote in his dissent in Gall v. U.S. As a result, he said, "sentencing disparities will gradually increase."

Even though Souter was in the majority, he wrote in a concurring opinion that the best way to deal with inconclusive standards resulting from the court's evolving decisions would be for Congress to reestablish mandatory sentencing guidelines, provided that juries find all facts necessary to impose the toughest sentences.

Douglas A. Berman, a sentencing expert at Ohio State University's law school, said in a statement that the rulings "are a major victory for criminal defendants and for district court judges who can use discretion in sentencing now that the guidelines are advisory only."

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