JUDGES HAVE LEEWAY TO BE LENIENT

Supreme Court OKs Option of Setting Lighter Sentences

WASHINGTON -- The Supreme Court boosted judges' discretion to impose
lenient criminal sentences Monday, including the option to set
shorter terms for crack cocaine offenses.

By a 7-2 vote, the court said judges are not bound by U.S. Sentencing
Guidelines that require sentences for crack cocaine crimes to be
punished more harshly than offenses involving powder cocaine.

The great disparity has long been controversial because stiffer crack
penalties have fallen disproportionately on low-level offenders and
black defendants.

A second 7-2 decision in a separate drug case reinforced the court's
recent trend of giving judges greater leeway across the board in
setting prison time. The rulings loosen the yoke of the Sentencing
Guidelines on judges.

The significance of the opinion lies in the latitude it gives trial
judges to assess the particular factors of a defendant's case.
Although the court majority emphasized the lack of grounds for the
disparate treatment of crack and powder offenders, it did not change
basic criminal laws on the books that treat crack and powder crimes
differently.

Justice Samuel Alito, who with Clarence Thomas dissented in both
cases, noted that the guidelines were enacted in the mid-1980s to
make sentences more uniform. "Sentencing disparities will gradually
increase" for similar crimes by similar defendants, Alito warned.

Defendants' rights advocates, such as the American Civil Liberties
Union, cheered the court's action, particularly for giving judges
leeway on the crack-powder differential. "I think it's a watershed
for drug sentencing," said Graham Boyd, director of the ACLU's Drug
Law Reform Project. Boyd said the decision could add momentum to
proposals at the Sentencing Commission and in Congress to reduce
crack-powder sentencing disparities.

The U.S. Sentencing Guidelines, an intricate set of directives tied
to a defendant's crime and background, had required that a trafficker
dealing crack be subject to the same sentence as a person dealing 100
times more powder cocaine. That 100-1 difference was narrowed on Nov.
1, so the guidelines have a powder-crack ratio that varies, depending
on the offense, from 25-1 to 80-1.

The Sentencing Commission is scheduled to vote today on whether to
apply the narrower ratios retroactively. The ratios could mean the
earlier release of 19,500 inmates over the next 30 years.

Monday's decision allows trial judges to discard the guidelines'
differential altogether if a situation warrants it. Writing for the
majority, Justice Ruth Bader Ginsburg said a trial judge may
"conclude when sentencing a particular defendant that the
crack-powder disparity yields a sentence greater than necessary."

Ginsburg noted that the Sentencing Commission adopted the
differential in the 1980s, when crack emerged on the streets and
Congress saw it as more likely than powder cocaine to be linked to
violence and addiction. She noted that research and data no longer
support those assumptions about the relative harm of the two drugs.

The court decision reinstated a shorter prison sentence for Derrick
Kimbrough, who was convicted in Virginia of selling crack and powder
cocaine. A judge gave him a 15-year sentence rather than the
guidelines' sentence of 19-22 years. The judge based his decision in
part on the long-standing controversy over the crack-powder
disparity, along with Kimbrough's time in the Army during the Gulf War in 1991.

The Justice Department appealed the lower sentence. An appeals court
ruled the judge improperly relied on the crack-powder dispute for leniency.

In reversing, Ginsburg noted that the Supreme Court had ruled in 2005
that the guidelines were to be considered "advisory," not mandatory
as they originally were enacted. She said that advisory nature
extends to the guidelines' treatment of crack and powder offenses.

Judges still must abide by "mandatory minimum" drug laws that retain
a 100-1 ratio for powder and crack offenses. Sentencing Commission
statistics show that a majority of crack defendants get the mandatory
minimum. Defendants such as Kimbrough fall into a remaining category
of those who were supposed to receive even more time behind bars
based on the guidelines' enhancements tied to crack quantity.