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June 12, 2007 - New York Times (NY)

Court To Weigh Disparities In Cocaine Laws

By Linda Greenhouse

Return to Drug War News: Don't Miss Archive

WASHINGTON - The Supreme Court, expanding its review of federal criminal sentencing, agreed Monday to consider the proper judicial response to the sharp disparity in the way the law treats crack cocaine and cocaine powder.

The court will address a growing rebellion among judges who have been issuing sentences lighter than those called for under the federal sentencing guidelines for criminals convicted of crack cocaine offenses. The federal appeals courts are divided on whether judges are permitted to exercise such discretion.

The lower courts have been trying to ease the impact of a 21-year-old federal law that imposes the same five-year mandatory minimum sentence for possession of 5 grams of crack, a bit more than a fifth of an ounce, as for 500 grams, or 1.1 pounds, of cocaine powder.

The 10-year mandatory sentence in the law incorporates the same 100-to-1 ratio. It is imposed for possession of 50 grams of crack, about one and three-quarters ounces, and 5 kilograms of powder, 11 pounds.

The federal sentencing guidelines have in turn incorporated the same disparity in the formulas by which a judge is supposed to build on the mandatory minimum and calculate an offender's actual sentence.

Critics of the disparity, federal judges among them, have observed that the harsh sentences for crack offenses have had a disproportionate impact on black men from poor urban areas, where crack is much more common than the cocaine powder favored by white users. African-Americans make up 80 percent of those sentenced for trafficking in crack.

From among many cases pending at the Supreme Court on the question, the justices selected an appeal filed by the federal public defender's office in Virginia on behalf of a man from Norfolk, Derrick Kimbrough, who pleaded guilty to two counts of possessing and distributing more than 50 grams of crack cocaine.

Taking account of Mr. Kimbrough's criminal history and other factors, including a gun possession charge that added a mandatory five-year sentence, the federal guidelines called for a range of 19 to 22 years.

Judge Raymond A. Jackson of Federal District Court, pronouncing such a sentence "ridiculous" and "clearly inappropriate," refused to impose it. Judge Jackson observed that Mr. Kimbrough had served in combat in the Persian Gulf war, had received an honorable discharge and was gainfully employed, with just misdemeanors and no previous felonies on his record.

Noting that the federal sentencing law requires judges to "impose a sentence sufficient, but not greater than necessary" to achieve the statute's purposes, Judge Jackson gave Mr. Kimbrough 15 years, the lowest possible given the statutory mandatory minimums.

The United States Court of Appeals for the Fourth Circuit, in Richmond, rejected Judge Jackson's reasoning and ordered resentencing.

"A sentence that is outside the guidelines range is per se unreasonable when it is based on a disagreement with the sentencing disparity for crack and powder cocaine offenses," the three-judge appeals court panel said.

The Fourth Circuit is thus at odds with other appeals courts, including the Third Circuit in Philadelphia, which ruled last fall that "a sentencing court errs when it believes that it has no discretion to consider the crack/powder cocaine differential incorporated in the guidelines."

In February, the United States Court of Appeals for the District of Columbia Circuit issued a similar opinion that was sharply critical of the disparity and said, "A sentencing judge cannot simply presume that a guidelines sentence is the correct sentence" for an offense involving crack.

Those appeals courts both noted that in 2005 the Supreme Court itself had made the guidelines advisory rather than binding, based on its conclusion that the guidelines system impinged on a defendant's right to have a jury make the central determinations on which a sentence is based.

The Supreme Court's failure to spell out in that decision, United States v. Booker, exactly what it meant by "advisory" has caused confusion throughout the criminal justice system. The court had hoped to resolve much of the confusion this term by hearing two cases presenting different aspects of the issue.

One case, Rita v. United States, No. 06-5754, which the justices are likely to decide in the next few weeks, raises the question of whether a sentence within the guidelines range should be presumed reasonable.

The second case, Claiborne v. United States, No. 06-5618, evaporated last month when the defendant, Mario Claiborne, who was free after serving his sentence, was shot to death in St. Louis. His case raised the question of what kind of explanation a judge has to give to justify a sentence below the guidelines range.

On Monday, the justices accepted a new case with similar facts as a substitute. A judge gave the defendant, Brian M. Gall, a sentence well below that called for by the guidelines, three years' probation rather than three years in prison.

Mr. Gall, while a college student in Iowa, had been part of a ring that sold the illegal drug Ecstasy. He left the ring after eight months, finished college, moved to Arizona, started a business and lived an evidently crime-free life. The trial judge found that because Mr. Gall had learned his lesson and reformed, prison time would serve no purpose.

But the United States Court of Appeals for the Eighth Circuit, the same St. Louis-based court that issue the decision that had been under review in the Claiborne case, ordered resentencing, finding that such an "extraordinary" departure from the guideline range required an "extraordinary" justification.

The justices will hear Mr. Gall's appeal, Gall v. United States, No. 06-7949, after the new term begins in October.

No action had been expected at this point on Mr. Kimbrough's pending appeal of his crack cocaine sentence. But the justices evidently decided that as long as their review of sentencing would, unexpectedly, take them into the next term in any event, they should add a case on the crack issue to address the particular issues that these cases raise.

The decision to hear the case, Kimbrough v. United States, No. 06-6330, comes at a potentially significant moment in the debate over the question.

Last month, the United States Sentencing Commission, which has tried unsuccessfully for years to persuade Congress to reduce the disparity in the mandatory minimum sentences, announced its intention to reduce crack offenses by two levels in the guidelines formula.

That change will cut sentences for crack by about one-third, substantially reducing the disparity without legislative action. Last year, the average sentence for crack cocaine was 10 years, compared with 7 for cocaine powder.

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