SUPREME COURT INSISTS ON LEEWAY

WASHINGTON - The Supreme Court on Monday restored federal judges to
their traditional central role in criminal sentencing. In two
decisions, the court said district judges have broad discretion to
impose what they think are reasonable sentences, even if guidelines
call for different ones. One decision was particularly emphatic in
saying judges are free to disagree with guidelines that call for much
longer sentences for offenses involving crack cocaine than for crimes
involving an equivalent amount of cocaine in powdered form.

Both cases, each decided by the same 7-2 alignment, chided federal
appeals courts for failing to give district judges sufficient leeway.
An appeals court had in each case overturned a sentence that was lower
than the sentence provided by the guidelines.

Taken together, the decisions reflected the remarkable trajectory the
court has traveled in the seven years since it overturned a New Jersey
hate-crime statute on the ground that the law gave judges an
unconstitutional degree of authority to make the crucial factual
determinations that added a hate-crime "enhancement" to an ordinary
criminal sentence.

Along with their diminished function under the Sentencing Reform Act
of 1984, which set up the federal sentencing guidelines system,
federal judges appeared to have been all but ejected from their role
at the heart of criminal sentencing.

Judges still may not impose sentences above the range written into law
by Congress or state legislatures. But Monday's decision gives judges
broad discretion to impose sentences that are higher or lower than the
guidelines, which are issued by the U.S. Sentencing Commission.

The two decisions answered questions left hanging in 2005, when the
court ruled in United States v. Booker that the federal sentencing
guidelines could be constitutional only if "advisory" rather than
mandatory. Appeals courts were to review sentences for
"reasonableness," the court said then. But the court did not say what
it meant by either "advisory" or "reasonableness."

No special weight It is now clear that judges should consult the
guidelines, but the guidelines are just one factor among others and do
not carry any special weight. It is also clear that an appeals court
must have a very good reason of its own to displace the trial judge's
judgment.

"The guidelines should be the starting point and the initial
benchmark," Justice John Paul Stevens said in one of the decisions on
Monday, Gall v. United States, No. 06-7949. But Stevens went on to say
that the guidelines were just one factor in the "individualized
assessment" that a judge must make in every case.

In that case, Brian M. Gall, who had briefly been involved in an
Ecstasy distribution ring as a college student, received a sentence of
three years' probation rather than 30 to 36 months in prison called
for by the guidelines.

The 8th U.S. Circuit Court of Appeals, in St. Louis, ruled that such
an "extraordinary" variance from the guidelines range required an
equivalently extraordinary justification.

The defendant in the crack cocaine case, Derrick Kimbrough, received
15 years instead of 19 to 22 1/2 for several cocaine and firearms
offenses. The trial judge disagreed with the relative treatment of
crack and powdered cocaine, a disparity that he said led to
"disproportionate and unjust" results. The 4th U.S. Circuit Court of
Appeals, in Richmond, Va., overturned the sentence on the ground that
it was "per se unreasonable" for a judge to depart from the guidelines
"based on a disagreement with the sentencing disparity for crack and
powder cocaine offenses."

'Stinging rebuke' The Supreme Court took the unusual step of
reinstating the original lower sentences, rather than simply
instructing the appeals courts to reconsider the cases under an
appropriately deferential standard of review. Douglas A. Berman of
Ohio State University's Moritz College of Law, an expert on
sentencing, called the decisions a "stinging rebuke of circuit court
micromanagement of district court discretion." Criminal defense
lawyers regarded the decision on Monday as good news. "The court has
taken the handcuffs off and told judges that 'you are free to apply
your mind,' " said Graham Boyd, director of the American Civil
Liberties Union's Drug Law Reform Project.