CONGRESS SHOULD ACT ON SENTENCING GAP

THE U.S. Supreme Court and the U.S. Sentencing Guidelines Commission
have done their part to remedy the injustices created by overly harsh
sentencing laws for crack cocaine offenses. Now Congress should
finish the job by approving federal sentencing reforms long favored
by Alabama's U.S. Sen. Jeff Sessions.

On Monday, the Supreme Court decisively affirmed that federal judges
have the discretion to impose shorter prison terms for crack cocaine
offenders. In a 7-2 decision, the court refused to overturn a 15-year
sentence given to Derrick Kimbrough, even though the sentence was
lighter than called for under federal sentencing guidelines.

According to the guidelines, he should have received 19 to 22 years
in prison.

The trial judge rejected the guidelines in sentencing Mr. Kimbrough,
a Gulf War veteran with no prior record of felony convictions. Judge
Raymond A. Jackson said the guidelines were "ridiculous," and he
imposed the lightest sentence allowed under the sentencing law.

Interestingly, the case partially bridged the Supreme Court's
ideological divide, bringing together Justice Ruth Bader Ginsburg,
one of the court's most activist members, and Justice Antonin Scalia,
its strictest strict constructionist. The controversy over cocaine
sentencing has provoked a similar response in Congress, with
conservative Republicans like Sen. Sessions pushing a bipartisan plan
to reduce the sentencing disparity.

Federal sentencing guidelines and mandatory minimum sentences treat
crack cocaine offenses far more severely than offenses involving
powder cocaine. The minimum sentence for those convicted of
possession of five grams of crack is the same as the sentence for 500
grams of cocaine powder.

This 100-1 disparity has obvious, though unintended, social and
racial implications. More than 80 percent of crack offenders are
black, with most coming from poor, inner-city areas. Middle-and
upper-class whites are more likely to commit powder cocaine offenses.

In the Kimbrough case, the Supreme Court strengthened and clarified a
2005 ruling that federal sentencing guidelines were advisory, not
mandatory. The two rulings give judges the latitude to lessen the
huge sentencing disparity in cocaine cases, but it should be noted
that the Supreme Court hasn't overturned the harsh mandatory minimum
sentences set by Congress.

In 1986, Congress acted in response to a perceived epidemic of crack
cocaine in the nation's inner cities. At that time, crack was thought
to be more addictive than powder cocaine, and its impact was
considered more devastating because it afflicted poor neighborhoods.
But as Justice Ginsburg pointed out in her opinion in the Kimbrough
case, the two drugs actually "have the same physiological and
psychotropic effects."

Sen. Sessions may seem an unlikely crusader for defendants' rights.
During a stint as a federal prosecutor, he aggressively went after
drug offenders. However, he understands that blatant inconsistencies
in sentencing undermine the entire justice system. The senator has
repeatedly co-authored legislation that would raise the threshold
triggering a mandatory sentence for crack cocaine, and lower it for
the powder form of the drug.

This year, three other senators with previous experience prosecuting
criminals are joining Sen. Sessions in co-sponsoring a bill to reduce
the disparity. The co-sponsors are Sen. Mark Pryor, D-Ark.; Sen.
John Cornyn, R-Texas.; and Sen. Ken Salazar, D-Colo.

Congress can and should find a bipartisan solution to the injustices
of the current sentencing rules. The Sentencing Guidelines Commission
showed the way last month by changing the guidelines to ease the
penalties for crack cocaine offenses.

Now that the Supreme Court has weighed in on the issue, Congress
should quickly follow up with legislation that reflects Sen.
Sessions' tough-but-fair approach.