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Supreme Court Rules: Shorter Prison Terms for Crack Cocaine Crimes

Mary Price
General Counsel and Vice President, Familes Against Mandatory Minimums
Monday, December 10, 2007 2:00 PM

The Supreme Court on Monday said judges may impose shorter prison terms for crack cocaine crimes, enhancing judicial discretion to reduce the disparity between sentences for crack and cocaine powder.

In a separate sentencing case that did not involve crack cocaine, the court also ruled in favor of judicial discretion to impose more lenient sentences than federal guidelines recommend.

Mary Price, general counsel and vice president of Families Against Mandatory Minimums (FAMM), a national organization which works for fair and proportionate sentencing laws, was online Monday, Dec. 10, at 2 p.m. ET to discuss today's decisions.

A transcript follows.

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Mary Price: I look forward to answering your questions about today's Supreme Court opinions in Kimbrough v. United States and Gall v. United States. The Kimbrough decisision is a tremendous victory for all who believe that the crack and powder cocaine disparity is unjust. The Gall decision meanwhile breathes life into a venerable mandate in federal sentencing law: judges must impose sentences that are sufficient but not greater than necessary to achieve the ends of justice. We welcome these decisions because they protect a judge's power to look at individual circumstances as well as account for concerns about sentencing uniformity when fashioning appropriate punishment.

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Harrisburg, Pa.: What are mandatory minimums doing to our society? Many young people outgrow their troubled teen and 20s years and mature, yet we are holding so many in prisons way beyond their maturity and providing them with opportunities mostly in learning from other prisoners how to become better criminals. Meanwhile, we are removing many, mostly males, from their families where their children are growing up without fathers and criminals as role models who themselves are more apt to follow into lives of crime. Do you agree with this and what other impacts on our lives do you see resulting from mandatory minimum sentences?

Mary Price: Today's opinions will not, sadly, affect mandatory minimum sentences. Those sentences are set by Congress and only Congress can change them. I agree with you that mandatory minimums require people to spend years more in prison than necessary to punish, deter and rehabilitate them. Meanwhile, as you point out, communities and families must struggle to cope with the consequences. The crack cocaine guideline that was the subject of today's Supreme Court opinion in Kimbrough v. United States replicated the unjust crack cocaine sentences required by Congress and then mandated even harsher sentences based on increased drug quantities. Today's opinion in Kimbrough only affects sentences above and below the five and ten year mandatory minimums for crack cocaine. Kimbrough tells judges they may now exercise discretion to lower a crack sentence below that called for in the guidelines if the sentence is, in the judge's opinion, too harsh. It is up to Congress however to not only correct the sentencing disparity for crack cocaine but eliminate all mandatory minimum sentencing. There are currently three bills in the Senate and two in the House addressing the crack cocaine disparity.

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Seattle, Wash.: Were these rulings more about judge's discretion than about mandatory minimums? If that's the case, how can you challenge the mandatory minimums if the appeals are more about the judge's discretion?

Mary Price: You are right. These decisions do not affect the mandatory minimums, which are set by and can only be changed by Congress. Mandatory minimums have been challenged from time to time in the courts and some challenges have made their way up to the Supreme Court, however, they have been upheld. Only Congress has the power to change or eliminate mandatory minimums. These opinions do add support to the Sentencing Commission's criticism of the crack cocaine mandatory minimum. The Sentencing Commission has criticized the crack sentencing structure repeatedly over the last twelve years. Supreme Court told sentencing judges that they may take such cricitisms into account when determining the appropriate sentence in a given case.

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NW, D.C.: Is there an assumption that this will have an retro active impact on those currently in prison? If so, what would initiate such actions? Are states prepared to address this issue where minimums differ in crack vs. powder, or is this solely a federal issue?

Mary Price: Such opinions are not retroactive unless the Supreme Court says they are. They do apply to cases that are pending appeal when the opinion is issued.

These decisions affect only the federal sentencing guidelines for crack cocaine; state sentencing structures are untouched by it.

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Arlington, Va.: Did Scalia and/or Thomas give any reasons that they opposed the majority?

Mary Price: Justice Thomas dissented in Kimbrough on the grounds that the facts that judges now can use to increase sentences ought to be presented to a jury, which has been his opinion in a series of cases addressing how the Sixth Amendment affects sentencing. He disagrees with an earlier Supreme Court opinion that made the guidelines advisory in the first place.

Justice Alito meanwhile in Gall because he believes that the Sentencing Guidelines and the policy considerations that he believes are embodied in them, should be given greater, presumptive, weight at sentencing.

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New York, N.Y: Isn't the problem, though, that Congress enacted mandatory minimums in the first place? The Supreme Court -- while serving the cause of justice -- perhaps is the wrong branch to decide the issue, not to mention is letting Congress off-the-hook. Congress pandered to voters by touting tough-on-crime policies and then when they were disastrous, the Supreme Court came to the rescue. Aren't we forgetting to blame Congress for creating the problem in the first place, and shouldn't we be voting into office Congresspersons who didn't and wouldn't vote for such idiotic laws?

Mary Price: You are right about the role of Congress. The Supreme Court did not take on mandatory minimums in these decisions. I don't think that Congress however is off the hook. I think the Kimbrough decision, which validated the view of the Sentencing Commission that the 100-1 ratio in sentencing between powder and crack cocaine overstates the dangerousness of the drug. This opinion lends a powerful voice to the debate about the crack cocaine penalty. There are currently three bills in the Senate and two in the House that seek to address the issue.

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Monroe, Mich.: As a 37-year-old black man, I will be appalled if the NAACP or any other black organization celebrates this as a Civil Rights victory. While the sentencing disparity has overtones of racism, what these so-called leaders such as Jesse Jackson and Al Sharpton should be discussing is how the crack epidemic has destroyed black neighborhoods and countless lives. Why do these people always come to the defense of the criminal and believe this is justice by decreasing sentences for crack sales? Why not condemn these criminals and the thug behavior that is glamorized in rap videos and on BET?

Mary Price: Those, like Families Against Mandatory Minimums, who criticize the crack cocaine sentences, do not believe that crime, including crack crime, should go unpunished. Rather, we believe that the punishment should fit the crime. The current sentences mandate that a person handling a mere five grams of crack cocaine receive a mandatory sentence in federal prison, without parole, of five years. Five grams is the equivalent of five sweet-n-low packets. When Congress established the five and ten year mandatory minimum sentences, they were intended for serious and major drug traffickers. Instead these severe sentences end up putting aways thousands of low level street dealers. Judges ought to be able to consider individual factors, including public safety, when sentencing. With mandatory minimums, they are prohibited from doing so.

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Strict Constructionist Constitutional Interpretation?: This seems to me that the Court is trying to restore the balance of power between the judiciary and the Congress. Does that make sense to you?

Mary Price: These opinions are the latest in a series of cases sorting out to what extent and how the Sixth Amendment guarantee of the right to a trial by jury affects sentencing decisions. In 2005, in Booker v. United States, the Court declared the guidelines unconstitutional to the extent they required a judge to increase a sentence based on facts that were not charged in the indictment or found beyond a reasonable doubt by a jury. To fix the problem, the Court declared the guidelines advisory. Judges were no longer required to increase a sentence based on facts they found at sentencing. Appeals courts were to review guideline sentences for reasonableness and since then courts have strugged to determine what is a reasonable sentence. Appeals courts began to say that sentences below the guidelines were not reasonable unless they were justified by extraordinary circumstances. The Court today in Gall rejected the extraordinary circumstances test and restored some greater measure of discretion to judges at sentencing. The sentencing statute, at 18 U.S.C. sec. 3553(a) directs a court to impose a sentence that is "sufficient but not greater than necessary" to meet the ends of sentencing. So one might read this opinion as reconciling the role of judges at sentencing with the original intent of Congress as expressed in the sentencing statute. Among the considerations that Congress laid out is the sentencing guideline sentence. Today, that consideration is still important, judges must still consider the guidelines, but it is no longer first among equals. They must also consider individual circumstances of the offense and offender and the need to deter, punish, and rehabilitate the offender and protect public safety.

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Washington, D.C.: I haven't read the opinions yet but did they give any weight to the fact that the Sentencing Commission actually recommended sentences that were much lower than what was enacted? When the Commission presented their recommendations to Congress, Congress got into a "bidding war" and upped the sentences for crack, resulting in the large disparity between crack/cocaine. I believe this was the only change that Congress made to the recommendations presented by the Sentencing Commission.

Mary Price: When the Commission drafted the guidelines, they "indexed" the guidelines for crimes that also had mandatory minimum setences, to those mandatory minimum sentences, and then built in increases based on increased in, for example, drug quantity. So, the sentence that corresponded to five grams of crack cocaine in federal statute was five years. The Commission adopted that floor and then increased sentences for increases in quantity.

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Monroe, Mich. -- Response: Mary, I appreciate your response but [it] is a bit naive. You make it sound like these "street-level" dealers do not pose a threat similiar to the large-scale dealers. It is the street soldier that intimidates neighborhoods and kills others over his territory. Yes, the major dealers should be taken down; however, the street dealers are just as culpable. My neighborhood is being destroyed by crack dealers. The next time you are in Michigan, please visit Monroe's "East End," and I can show you first-hand that your criminal advocacy may be appropriate for cocktail dinners in which the privileged congratulate themselves on the good they are doing in society, but tell that to the mothers and 10-year-olds who must walk past drug dealers on their way to school.

Mary Price: I did not intend to say that these people do not pose a threat. They do not deserve to be punished at the same level as those who plan,import, distribute to lower level dealers and reap huge profits from preying on our communities. And, because those major traffickers deal in powder cocaine, and sentences for powder cocaine are shorter, they can end up, after cooperating with the government and turning in the low level distributors, with shorter sentences than street dealers, who have no or little information to trade with the government. Plus, crack cocaine is the only drug that punishes mere possession with a five year mandatory minimum sentence.

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Washington, D.C.: How would you respond to the arguments presented in the dissenting opinions issued today?

Thanks (and keep up the good work)!

Mary Price: Well, while Justice Thomas may disagree with the fact that guideines are advisory does not change the fact that the guidelines are advisory. His remedy would have subjected all facts that increase sentences to a jury and many people believed that would have been an appropriate response. However, it is no longer an option.

I have not had time to digest Justice Alito's dissent and fear I would not do it justice. Suffice it to say that we believe that the guidelines do not and should not carry more weight than all the other considerations laid out at 18 U.S.C. section 3553(a), the sentencing statute.

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Lubbock, Tex.: Will this ever happen for people convicted of meth crimes?

Mary Price: Today, in the Gall opinion, the Court said that a judge may impose a sentence below the guideline sentence and an appeals court can only reverse that sentence if it finds the judge abused his or her discretion. So, in a methamphetamine case, if a judge finds, after reviewing the facts of the case, that the guideline sentence is too long, the court may impose what it considers an appropriate sentence. It may not lower a mandatory minimum methamphetamine sentence however.

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Philadelphia, Pa.: Do you see any link between the private prison industry and their lobbyists who favor mandatory minimum sentences, thus providing them with greater need for us to buy their private prisons? Is it me, or isn't this concern for our welfare a little too close to their desires for higher profits?

Mary Price: I fear I do not know enough about what lobbyists for the private prison industry say about mandatory minimums to give you an informed answer.

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Mary Price: Thank you for your questions and the chance to discuss these issues with you.

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