HIGH COURT EXAMINES JUDGES' POWER TO BE LENIENT

Some Impose Penalties That Fall Short of What Sentencing Guidelines Call For

WASHINGTON -- The Supreme Court struggled Tuesday with how much
discretion U.S. judges have to give lenient sentences, including in
crack cocaine cases.

The justices appeared torn on the question that could affect tens of
thousands of federal defendants prosecuted each year.

The high court has imposed standards for sentencing in recent years
to ensure that judges boost prison time based only on facts proved to
a jury beyond a reasonable doubt, such as establishing that a crime
was particularly cruel.

A side effect of those decisions has been confusion over how much
discretion trial judges have to vary sentences beyond the U.S.
Sentencing Guidelines, adopted in the 1980s to bring uniformity to
prison time and counteract race, wealth and other biases. Judges
found that the guidelines sometimes prevented them from dealing
fairly with individual circumstances.

The Supreme Court ruled in 2005 that the guidelines should be
considered advisory, not mandatory. Now the question is how appeals
courts should determine whether a sentence outside the guidelines was
"reasonable."

Brian Gall was convicted in Iowa of conspiracy to sell the drug
Ecstasy. He was given probation rather than the guidelines' range of
30-37 months behind bars. The judge noted that Gall walked away from
the conspiracy at age 21, finished college and started a business. He
turned himself in when he was later indicted.

Derrick Kimbrough was convicted in Virginia of selling crack and
powder cocaine and sentenced to 15 years in prison rather than 19-22
years under the guidelines. The judge cited Kimbrough's military
service, along with the controversy over the disparity in punishments
for crack and powder cocaine crimes.

Sentences for dealing crack cocaine are far harsher than those for
powder: 1 gram of crack triggers the same sentence as 100 grams of
powder. The U.S. Sentencing Commission, which recommended that
Congress narrow the 100-1 ratio, says the stiff crack sentence falls
disproportionately on black offenders and low-level dealers.

In the Gall and Kimbrough disputes, appeals courts said the judges
lacked the latitude to give the lower sentences. The defendants appealed.

Justice Samuel Alito, who spent 15 years as an appellate judge before
being appointed to the high court, was an active questioner Tuesday.
He challenged Gall's lawyer, Jeffrey Green, on the notion that a
judge could show leniency based on a defendant's youth, calling that
"a policy question."

To Kimbrough's lawyer, Michael Nachmanoff, Alito suggested judicial
latitude on cocaine sentences could pose a dilemma for appellate
judges. "What if (an appeals court) sees a number of absolutely
identical cases?" he asked. If one sentencing judge used a 1-1 ratio,
the next one used 20-to-1 and the next 50-to-1, "what is it to do
under 'reasonableness' review?" Nachmanoff said that if the judges in
those cases had sufficient reasons, the sentences should be upheld.

Justice Department lawyer Michael Dreeben, seeking to win longer
sentences for the two men, urged an approach used by many appeals
courts. It demands that a sentence varying significantly from the
guidelines be justified by a rationale that is equally weighty.

Justice John Paul Stevens wondered whether that test was too vague:
"How do you measure the strength of the justifications?"

Dreeben noted that the differing cocaine penalties stemmed from
Congress' view in its 1986 law that crack dealing spawned more violence.

"For a judge to say Congress is crazy," Dreeben said, "is a sort of
textbook example of an unreasonable sentencing factor."