JUSTICES TAKE UP DISCRETION OF THE COURTS IN SENTENCING

WASHINGTON -- Since 2000, in a patchwork of closely fought and
inconclusive decisions, the Supreme Court has been wrestling with the
question of how much discretion the Constitution permits judges to
exercise in criminal sentencing.

All the tensions and internal contradictions of that seven-year
effort were on display in the courtroom Tuesday when the justices
took up the issue of what should happen when federal judges refuse to
follow the federal sentencing guidelines.

That question, simple enough on the surface, goes to the heart of the
shaky compromise the court achieved two years ago when it preserved
the constitutionality of the guidelines by making them "advisory"
rather than mandatory, while not explaining what advisory was supposed to mean.

In the cases before the court Tuesday, one federal judge gave a
reformed drug dealer a sentence of three years' probation, rather
than the three years in prison called for by the guidelines. Another
judge, declaring that it would be "ridiculous" to sentence a man to
the guidelines' range of 19 to 22 years for a crack cocaine offense,
imposed a sentence of 15 years, the lowest available given the
mandatory minimum set by federal statute.

In both cases, federal appeals courts rejected the sentencing judges'
leniency and told them to try again.

In the first case, the United States Court of Appeals for the Eighth
Circuit, in St. Louis, said that such an "extraordinary" departure
from the guidelines -- no prison time at all -- required an
"extraordinary" justification. The appeals court rejected as
insufficient the judge's explanation that the defendant, Brian M.
Gall, a college student while he was part of an Ecstasy distribution
ring, had extricated himself from the conspiracy after eight months
and had gone on to graduate, start a business and lead a productive life.

In the crack cocaine case, the United States Court of Appeals for the
Fourth Circuit, in Richmond, Va., said judges did not have the
authority to reject a guidelines sentence on the basis of their own
disagreement with the underlying sentencing policy. The policy at
issue was the disparate treatment of offenses involving cocaine in
its crack and powder forms. It takes 100 times as much powder as
crack to bring the same mandatory minimum sentence under federal drug
law, as well as to reach the same offense level under the sentencing
guidelines.

There is nothing that judges can do about mandatory minimum sentences
that are fixed by federal law and that, for example, impose the same
five years for possession of five grams of crack, about one-fifth of
an ounce, as for 500 grams of powder, more than one pound. The
sentencing guidelines, incorporating the same ratio, come into play
in cases that place the offender either under or over the minimum,
and judges have been taking the guidelines into their own hands by
refusing to follow them.

The United States Sentencing Commission, for its part, has agreed for
years that the crack-powder disparity is misguided. Its current
recommendation for easing the disparity under the guidelines by about
one-quarter is now before Congress, and will take effect on Nov. 1
unless it is blocked. The change has wide support in Congress, where
a half-dozen bills are pending to reduce the mandatory minimum
disparity as well.

The justices' challenge in both of the day's cases was how to achieve
seemingly irreconcilable goals: to ensure that similar defendants
receive the same treatment for similar crimes -- the original intent
of the sentencing guidelines system -- while restoring to judges a
measure of discretion now that the guidelines are merely "advisory."

"Indeed, it may be quite impossible to achieve uniformity through
advisory guidelines, which is why Congress made them mandatory,"
Justice Antonin Scalia observed.

Two years ago, in United States v. Booker, the court ruled that the
mandatory guidelines gave judges too much fact-finding
responsibility, violating the Sixth Amendment right to trial by jury.
Making the guidelines advisory as a way of saving them was a
compromise that now looks threatened.

The Booker decision made it "crystal clear that to avoid the Sixth
Amendment problem with the mandatory guidelines, judges must be free
to disagree with the guidelines," Michael S. Nachmanoff, the lawyer
representing the crack cocaine defendant, Derrick Kimbrough, told the court.

Justice Stephen G. Breyer, an original author of the guidelines and
the system's most fervent champion on the court, objected that Mr.
Nachmanoff was not offering a way out. "You're saying either we have
to make it unconstitutional," he said, "or you have to say anything goes."

Justice Scalia, whose distaste for the guidelines is evident, came to
the lawyer's rescue. "Your position is not anything goes," he said.
"It's anything that's reasonable goes."

This led Justice Anthony M. Kennedy to ask, "How do we define
'reasonable?'" The question seemed to bring the argument back to
where it began.

Michael R. Dreeben, a deputy solicitor general, argued for the
government in both cases, Gall v. United States, No. 06-7949, and
Kimbrough v. United States, No. 06-6330.

He warned the court against "wholesale abdication to the district
judge," which he said would lead to unacceptable variations in sentences.