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October 3, 2007 - New York Times (NY)

Justices Take Up Discretion Of The Courts In Sentencing

By Linda Greenhouse

Return to Drug War News: Don't Miss Archive

WASHINGTON - Since 2000, in a patchwork of closely fought and inconclusive decisions, the Supreme Court has been wrestling with the question of how much discretion the Constitution permits judges to exercise in criminal sentencing.

All the tensions and internal contradictions of that seven-year effort were on display in the courtroom Tuesday when the justices took up the issue of what should happen when federal judges refuse to follow the federal sentencing guidelines.

That question, simple enough on the surface, goes to the heart of the shaky compromise the court achieved two years ago when it preserved the constitutionality of the guidelines by making them "advisory" rather than mandatory, while not explaining what advisory was supposed to mean.

In the cases before the court Tuesday, one federal judge gave a reformed drug dealer a sentence of three years' probation, rather than the three years in prison called for by the guidelines. Another judge, declaring that it would be "ridiculous" to sentence a man to the guidelines' range of 19 to 22 years for a crack cocaine offense, imposed a sentence of 15 years, the lowest available given the mandatory minimum set by federal statute.

In both cases, federal appeals courts rejected the sentencing judges' leniency and told them to try again.

In the first case, the United States Court of Appeals for the Eighth Circuit, in St. Louis, said that such an "extraordinary" departure from the guidelines-no prison time at all-required an "extraordinary" justification.

The appeals court rejected as insufficient the judge's explanation that the defendant, Brian M. Gall, a college student while he was part of an Ecstasy distribution ring, had extricated himself from the conspiracy after eight months and had gone on to graduate, start a business and lead a productive life.

In the crack cocaine case, the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., said judges did not have the authority to reject a guidelines sentence on the basis of their own disagreement with the underlying sentencing policy. The policy at issue was the disparate treatment of offenses involving cocaine in its crack and powder forms.

It takes 100 times as much powder as crack to bring the same mandatory minimum sentence under federal drug law, as well as to reach the same offense level under the sentencing guidelines.

There is nothing that judges can do about mandatory minimum sentences that are fixed by federal law and that, for example, impose the same five years for possession of five grams of crack, about one-fifth of an ounce, as for 500 grams of powder, more than one pound.

The sentencing guidelines, incorporating the same ratio, come into play in cases that place the offender either under or over the minimum, and judges have been taking the guidelines into their own hands by refusing to follow them.

The United States Sentencing Commission, for its part, has agreed for years that the crack-powder disparity is misguided. Its current recommendation for easing the disparity under the guidelines by about one-quarter is now before Congress, and will take effect on Nov. 1 unless it is blocked.

The change has wide support in Congress, where a half-dozen bills are pending to reduce the mandatory minimum disparity as well.

The justices' challenge in both of the day's cases was how to achieve seemingly irreconcilable goals: to ensure that similar defendants receive the same treatment for similar crimes-the original intent of the sentencing guidelines system-while restoring to judges a measure of discretion now that the guidelines are merely "advisory."

"Indeed, it may be quite impossible to achieve uniformity through advisory guidelines, which is why Congress made them mandatory," Justice Antonin Scalia observed.

Two years ago, in United States v. Booker, the court ruled that the mandatory guidelines gave judges too much fact-finding responsibility, violating the Sixth Amendment right to trial by jury. Making the guidelines advisory as a way of saving them was a compromise that now looks threatened.

The Booker decision made it "crystal clear that to avoid the Sixth Amendment problem with the mandatory guidelines, judges must be free to disagree with the guidelines," Michael S. Nachmanoff, the lawyer representing the crack cocaine defendant, Derrick Kimbrough, told the court.

Justice Stephen G. Breyer, an original author of the guidelines and the system's most fervent champion on the court, objected that Mr. Nachmanoff was not offering a way out. "You're saying either we have to make it unconstitutional," he said, "or you have to say anything goes."

Justice Scalia, whose distaste for the guidelines is evident, came to the lawyer's rescue. "Your position is not anything goes," he said. "It's anything that's reasonable goes."

This led Justice Anthony M. Kennedy to ask, "How do we define 'reasonable?'" The question seemed to bring the argument back to where it began.

Michael R. Dreeben, a deputy solicitor general, argued for the government in both cases, Gall v. United States, No. 06-7949, and Kimbrough v. United States, No. 06-6330.

He warned the court against "wholesale abdication to the district judge," which he said would lead to unacceptable variations in sentences.

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