WHEN JUSTICE DOESN'T ADD UP

ON A SCALE of 100-to-1, the juxtaposition was 100 times better than fiction.

Supreme Court Justice Stephen Breyer opened yesterday's session by
announcing that the court, in a narrow 5-to-4 decision, vacated $79.5
million in punitive damages against cigarette maker Philip Morris. A
deceased Oregon smoker was awarded $821,000 in compensatory damages,
but a jury imposed the punitive damages for Philip Morris's deceit in
making smokers think cigarettes were safe. Lawyers for the smoker,
Jesse Williams, asked the jury to "think about how many other Jesse
Williams in the last 40 years in the state of Oregon there have been."

Philip Morris argued that it could only be punished for the harm done
to that one smoker. It said the "roughly 100-to-1 ratio" of punitive
vs. compensatory damages was "grossly excessive." The Supreme Court
agreed with the cigarette maker on that point, saying that "to permit
punishment for injuring a nonparty victim would add a near
standardless dimension to the punitive damages equation." The court
did not directly address whether the $79.5 million was grossly
excessive. It left the door open for lesser damages or a new trial.

Then the oral arguments began for two cases before the court. They
were related cases that challenged how much judges could veer from
sentencing guidelines. One of them involved Mario Claiborne, a St.
Louis man now 23 who was arrested twice in 2003 for possession of
crack cocaine. The first time, he was caught with .23 grams. The
second time, he was caught with 5.03 grams.

Crossing the 5-gram mark triggered a five-year mandatory minimum
sentence. But he had no prior record, no violent history, no ties to
organized drug selling, and cooperated with law enforcement. His
prior clean record allowed a reduction to between 37 and 46 months in
jail. But the district judge sentenced Claiborne to 15 months,
saying, "I come to the conclusion that a 37-month sentence would be
tantamount to throwing you away."

The Eighth Circuit reversed the ruling saying the reduction was an
"extraordinary variance" not supported by "extraordinary facts."

Claiborne's attorneys assert that since his release from prison last
May, he is working and raising three children. His name was before
the court yesterday because the government asserts that the judge
went way afoul of sentencing guidelines. But Claiborne's name was
also before the court because of two decades of the most foul drug
laws since the official end of segregation.

Amidst the general passion for punishment in the Reagan era and the
hysteria fueled by media stereotypes of black people crazed on crack,
the federal government established laws that required the possession
of 5 grams of crack cocaine to be slapped with a mandatory five-year
sentence, while it took 500 grams of powdered cocaine. This 100-to-1
ratio also meant that 50 grams of crack landed you in prison for 10
years, while it took 5,000 grams of powder to be treated the same way.

Eric Sterling, the former counsel to the House Judiciary Committee
who helped write the laws in 1986 and now calls them part of a series
of "terrible mistakes," likened the difference between 5,000 grams
and 50 grams to that of a briefcase full of drugs and a candy bar.
Even though Americans use illegal drugs in racial proportions to the
population, the 100-to-1 ratio meant young black men being hauled off
the street and imprisoned at a rate where today one of every three
black males is likely to develop a criminal record. Had Claiborne
possessed powdered cocaine instead of crack, he would have faced 6 to
12 months instead of five years.

No one did anything about it, even though the US Sentencing
Commission has long called for a reduction in the disparity.
President Clinton said the 100-to-1 ratio was "unfair, unjustifiable
and should be changed," but he did not work to change it.

So in some way, Claiborne's name stood before the court yesterday
representing all the black men unfairly put away under unjust laws.
But even though Justice Ruth Bader Ginsberg wondered about the
disparity yesterday, Chief Justice John Roberts proclaimed the issue
of the 100-to-1 ratio to have "nothing to do with the individual case."

A jury is found to have overreached on a 100-to-1 ratio against
Philip Morris. The government seeks to keep punishing people on a
100-to-1 ratio. It may have nothing to do with the individual case,
but it has everything to do with American justice.