JUSTICES SAY THEY LEAN TO SENTENCING LEEWAY

Foes of Strict Guidelines Point to Overcrowded Prisons and
Substantial Variations in Terms.

WASHINGTON -- Hearing arguments in a pair of drug cases, the Supreme
Court justices said Tuesday that they were inclined to give
sentencing judges more leeway -- but not total freedom -- to impose
shorter prison terms.

In the 1980s, Congress adopted sentencing parameters that set the
range of prison terms for all federal crimes. The stiff guidelines
and the mandatory minimum sentencing laws have swelled the prison
population. Last year, 181,622 inmates were in federal prisons, up
from 24,363 in 1980.

On Tuesday the justices struggled to decide whether a judge may
ignore the guidelines and set a much lower prison term.

This "is a one-way ticket to disparity," warned Deputy Solicitor Gen.
Michael R. Dreeben. He urged the court to hold the line and require
judges to stick to the sentencing guidelines nearly all the time.
Otherwise, there would be widely varying prison terms for the same
crime, he said -- exactly what the 20-year-old guidelines were
intended to prevent.

Justice Stephen G. Breyer appeared to agree. It "would be the end of
the guidelines," he said, if judges were free to decide for
themselves on appropriate prison terms. Breyer was an architect of
the sentencing guidelines when he worked for the Senate Judiciary
Committee in the 1970s. He has remained their foremost champion.

Justice Antonin Scalia, however, is a skeptic. He said the guidelines
often result in overlong prison terms. "The guidelines are only
guidelines. They are advisory," he told Dreeben, so judges should be
permitted to hand down shorter sentences.

Several justices also questioned the so-called 100-to-1 sentencing
disparity between convictions for possession of crack and powder
cocaine, a much-debated formula that has often resulted in longer
prison terms for blacks. But the justices also agreed that courts
cannot wipe away this formula entirely because Congress wrote it into law.

"War on drugs" laws passed in the mid-1980s set a mandatory five-year
prison term for selling 5 grams of crack. That is the same sentence
required for selling 500 grams of powder cocaine.

In the two cases heard Tuesday, trial judges had decided on lower
sentences, but they were reversed on appeal.

The first case concerned Brian Gall, who sold ecstasy pills as a
sophomore at the University of Iowa but quit the drug business in
less than a year and went on to earn his degree. He moved to Arizona
and started a construction business.

Three years later, when the FBI broke up the drug ring in Iowa City,
he was exposed and pleaded guilty. The sentencing guidelines called
for him to serve about three years in prison, but a judge sentenced
him to probation. The U.S. 8th Circuit Court of Appeals in St. Louis
disagreed and said the judge had erred by ignoring the guidelines.

Gall "had fully rehabilitated himself," Washington attorney Jeffrey
Green said. It made no sense to ship the former dealer off to prison,
he argued.

The second case concerned Derrick Kimbrough, a Gulf War veteran
arrested in a car in Norfolk, Va., with crack and powder cocaine and
a gun. The guidelines called for 19 to 22 years in prison, but Judge
Raymond Jackson called that term "ridiculous." He sentenced Kimbrough
to 15 years.

Nonetheless, prosecutors appealed and won a ruling from the U.S. 4th
Circuit Court of Appeals in Richmond, Va., saying the judge was wrong.

"Judge Jackson got it right in this case. He imposed a long sentence
of 15 years," said Michael Nachmanoff, a federal public defender, who
represented Kimbrough.

In the past, the justices have been closely split in sentencing
cases, and not along the usual ideological lines. For example,
Justices Scalia and John Paul Stevens have joined the major rulings
that struck down mandatory sentencing guidelines.

During Tuesday's argument, most of the justices sounded as though
they were inclined to rule for Kimbrough and uphold the 15-year
sentence set by the judge. Gall's appeal drew less support because
the judge had lowered his prison sentence from three years to zero.

Even if Kimbrough wins, the ruling would not affect most
crack-cocaine defendants because their sentences are usually
determined by the mandatory-minimum terms written into law.