JUSTICES BACK SENTENCING LEEWAY

Rulings May Bring an End To Era of Rigid Formulas, Open Door to
Rehearings

WASHINGTON -- In a pair of rulings, the Supreme Court emphatically
declared that trial judges have wide discretion over criminal
sentencing, effectively ending the federal law's 20-year experiment
with rigid formulas for punishing individual defendants.

Taken together, the rulings will broaden the discretion of federal
district-court judges in handing out sentences.

They could also lead to thousands of defendants seeking a
rehearing.

The rulings are potentially more expansive than the Supreme Court's
last word on such guidelines in 2005. After that, the court sent back
more than 400 cases to lower courts for rehearings.

"Every federal defendant who is on appeal, about to be sentenced or
has been sentenced and lost on appeal is about to call his or her
lawyer and say, 'Can we do anything with this,'" said Douglas Berman,
a professor and expert on federal sentencing at the Ohio State
University law school. In 1984, Congress adopted a sentencing system
that was designed to equalize sentences for similar crimes.

It charged a sentencing commission with developing formulas that
required judges to impose sentences, within a range, depending on
facts of the case. In a 2005 case known as Booker, the Supreme Court
ruled that such guidelines were unconstitutional because they required
judges to consider facts not proven to a jury. But the court's
splintered opinion didn't clearly outline how much weight trial judges
should give the guidelines. Earlier this year, the court ruled that it
is reasonable for a judge to follow the guidelines -- meaning a
defendant would face a heavy burden to have it thrown out. Yesterday,
the court ruled that the reverse doesn't follow: A sentence that
deviates from the guidelines isn't necessarily unreasonable.

As such, the rulings make clear that sentences imposed by trial judges
generally can be reversed only for "abuse of discretion" -- a rare
event -- as long as they stay within the minimums and maximums
prescribed by law. In one case, the court upheld a trial judge who
rejected the additional penalties that federal sentencing guidelines
impose for crack-cocaine crimes over those for powder cocaine.

The drugs have the same active ingredient. Crack defendants are
typically black, and powder defendants more commonly white.

In the case, a federal judge in Virginia sentenced Derrick Kimbrough
to 15 years for intent to distribute more than 50 grams of crack,
among other crimes. The guidelines called for at least 19 years, so
the government appealed. A federal appeals court in Richmond, Va.,
sided with the government, ruling that judges may not impose lighter
sentences "based on a disagreement with the sentencing disparity for
crack and powder cocaine offenses." Writing for the court, Justice
Ruth Bader Ginsburg said that while judges must give "respectful
consideration" to the sentencing guidelines, judges are free to
"tailor the sentence in light of other statutory concerns as well,"
such as the "history and characteristics of the defendant." The trial
judge noted that Mr. Kimbrough had no prior felony convictions and was
a combat veteran.

In November, the U.S. Sentencing Commission, responding in part to
criticism of the disparate racial impact, reduced the difference in
guidelines for crack and powder cocaine.

Today, the commission is expected to announce that the lessened
penalties will apply retroactively to the 19,500 crack offenders now
in federal prison.

In the other case, the court likewise found that a trial judge had
acted properly when he gave a lenient sentence to a former drug dealer.

A federal judge in Iowa sentenced Brian Gall to three years of
probation, rather than a like period in prison, because of his unusual
story of "self-rehabilitation."

While a University of Iowa student in 2000, Mr. Gall had taken part in
a ring distributing the drug popularly known as ecstasy.

Mr. Gall withdrew from the operation after seven months, graduated
from college and became a master carpenter.

Years later, federal agents tracked him down, and he admitted having
taken part in the drug ring. Mr. Gall was indicted and pleaded guilty.

A federal appeals court in St. Louis threw out the sentence, agreeing
with the government that the trial judge had given too much weight to
Mr. Gall's successful effort to go straight.

Writing for the Supreme Court, Justice John Paul Stevens said the
appellate court mistakenly assumed there was some exact formula for
measuring such factors. "The formula is a classic example of
attempting to measure an inventory of apples by counting oranges,"
Justice Stevens wrote. Justices Clarence Thomas and Samuel Alito
dissented from both rulings. (Kimbrough v. U.S.; Gall v. U.S.)