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December 10, 2007 - New York Times (NY)

Justices Widen Sentencing Powers of Federal Judges

By David Stout, The New York Times

Return to Drug War News: Don't Miss Archive

Washington, DC - The Supreme Court today enhanced the power of federal district judges to use their discretion in arriving at sentences in criminal cases as it upheld a relatively light sentence imposed on a crack cocaine distributor.

By 7 to 2, the court held that "the cocaine guidelines, like all other guidelines, are advisory only," in the words of Justice Ruth Bader Ginsburg, who wrote for the majority. She cited a 2005 Supreme Court decision, United States v. Booker, that "mandatory guidelines" in federal cases gave judges too much fact-finding responsibility, and that the guidelines should be "advisory" instead.

The majority concluded today that a district judge in Virginia acted properly in April 2005 when he refused to follow federal sentencing guidelines calling for far harsher penalties for trafficking in crack cocaine than they do for dealing in the powder form of the drug. In a nutshell, the effect of this ruling is to give sentencing judges considerably more discretion in criminal cases.

In the Booker decision of 2005, the court did not spell out clearly what it meant by "advisory," so there has been considerable confusion throughout the criminal justice system.

In a second sentencing case, also decided today by 7 to 2, the court upheld the three years' probation imposed upon Brian M. Gall, who was part of a ring that sold the illegal drug Ecstasy while in college in Iowa.

The trial judge concluded that prison would do him no good, since he had finished college and turned his life around. But the United States Court of Appeals for the Eighth Circuit, in St. Louis, found that the judge had not sufficiently justified his departure from the guidelines, which called for three years in prison. Today, the Supreme Court said the trial judge was right.

The disparities between prison terms for dealing in crack and for peddling powdered cocaine have for years angered some lawyers and civil rights advocates, who have argued that the crack-cocaine penalties unfairly punish black defendants more severely than they do whites. Crack is much more common in poor urban areas than the powder favored by white users, and black people make up 80 percent of those sentenced for crack-dealing.

Two decades ago, when the effects of the two forms of cocaine were less well understood, there was a collective assumption that crack cocaine was far deadlier, although subsequent studies have shown that they "have the same physiological and psychotropic effects," as Justice Ginsburg put it.

But the United States Sentencing Commission, created in the mid-1980's to recommend appropriate federal prison terms and lessen wildly disparate sentences in cases of similar circumstances, provided punishments for crack cocaine that were far more severe than those associated with the powder - the same five-year minimum for possessing 5 grams of crack as for 100 times as much powdered cocaine, for instance.

In fact, the sentencing commission recently issued new guidelines that will reduce the average sentence for cocaine possession to 8 years 10 months, from 10 years 1 month. The panel is to meet on Tuesday in Washington to consider whether the reduction should be made retroactive. If the answer is "yes," some 19,000 prisoners could have their sentences reduced.

Even before the new guidelines, more and more federal judges had been rebelling over the crack v. powder disparity. One of them was Judge Raymond A. Jackson, who refused to sentence Derrick Kimbrough of Norfolk to the 19-to-22-year sentence called for in the guidelines after Mr. Kimbrough pleaded guilty to possessing and distributing more than 50 grams of crack.

"Ridiculous" and "clearly inappropriate" Judge Jackson said of the guidelines as they supposedly applied to the case of Mr. Kimbrough, who the judge noted had no prior felony convictions, was gainfully employed and had served honorably in the Marine Corps in the Persian Gulf war. The judge sentenced him to 15 years, the lightest term possible under the statutory minimums.

But the United States Court of Appeals for the Fourth Circuit, in Richmond, rejected Judge Jackson's reasoning and ordered him to resentence the defendant. The appeals court, differing with appeals judges in other circuits who had found that sentencing judges did have considerable discretion, said it was "unreasonable" for Judge Jackson to have departed from the guidelines just because he disagreed with the disparity between punishments linked to crack and powdered cocaine.

But Justice Ginsburg said the Fourth Circuit was wrong, and that the sentence imposed by Judge Jackson "should survive appellate inspection." She wrote that the sentencing judge had "properly homed in on the particular circumstances of Kimbrough's case."

Justices Clarence Thomas and Samuel A. Alito Jr. were the dissenters today in Kimbrough v. United States, No. 06-6330. Justice Thomas wrote that, in declaring the guidelines only advisory two years ago, the Supreme Court had come up with a remedy "far broader than necessary to correct constitutional error."

"Because the court's decisions in this area are necessarily grounded in policy considerations rather than law, I respectfully dissent," Justice Thomas wrote.

The 100-to-1 ratio in sentences for crack and powder cocaine originated in the Anti-Drug Abuse Act of 1986. Several bills have been introduced in Congress to address the disparities between sentences for crack and for powdered cocaine.

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