HIGH COURT'S SENSIBLE SENTENCING

THE CRACKS in America's most racist set of laws widened dramatically
yesterday when the Supreme Court voted 7-2 that a federal district
judge can reduce a sentence for crack cocaine that would have been
much worse under federal guidelines.

"We hold that . . . the cocaine guidelines, like all other
guidelines, are advisory only and that the Court of Appeals erred in
holding the crack/powder disparity effectively mandatory . . . The
judge may consider the disparity," wrote Justice Ruth Bader Ginsburg.

The decision involved the case of Derrick Kimbrough, an
African-American who saw combat in Operation Desert Storm in 1991. He
pleaded guilty in Norfolk, Va., to selling both crack and powdered
cocaine and possessing a firearm. He was a first-time offender with
an honorable discharge from the Marines and a steady employment
record. He was busted with another defendant by two cops as they sat
in a car.

Had the cocaine involved been just powder, Kimbrough faced a
mandatory sentencing guideline of 8 to 8 3/4 years. Under the laws
that punish crack far more harshly than powder, so much so that it
takes 100 times more powder to trigger the same mandatory sentences,
Kimbrough instead faced 19 to 22 1/2 years.

The district judge weighed the disparity in sentencing with the facts
that Kimbrough had an otherwise clean felony record and that like the
US Sentencing Commission long ago concluded, "crack cocaine has not
caused the damage that the Justice Department alleges it has." While
no one was saying that what Kimbrough did was not serious, the judge
said the crime "was an unremarkable drug-trafficking offense."

The judge sentenced Kimbrough to 15 years. A federal appeals court
overturned the sentence, saying it strayed too far from the
guidelines. Yesterday, the high court - with even Chief Justice John
Roberts and Justice Antonin Scalia joining in - said the district
judge "appropriately framed its final determination" in line with
recent Supreme Court rulings that guidelines are advisory to properly
"impose a sentence sufficient, but not greater than necessary." The
district court appropriately concluded that the crack sentencing
guidelines drove the punishment "to a point higher than is necessary."

The Supreme Court did not throw out the 100-to-1 ratio in its ruling,
but Ginsburg thoroughly debunked it. The laws originated in 1986, at
a time when crack was the new scary drug in society.

Ginsburg yesterday recounted in her opinion, "Congress apparently
believed that crack was significantly more dangerous than powder
cocaine in that: (1) crack was highly addictive; (2) crack users and
dealers were more likely to be violent than users and dealers of
other drugs; (3) crack was more harmful to users than powder,
particularly for children who had been exposed by their mothers' drug
use during pregnancy; (4) crack use was especially prevalent among
teenagers; and (5) crack's potency and low cost were making it
increasingly popular."

In the years since, medical researchers and criminal justice experts
have discovered that there is no difference between crack and powder
and the majority of trafficking in both forms of the drug are
nonviolent. Yet, even though the majority of crack users are white,
85 percent of convicted federal crack offenders are black. But the
laws have continued, as cowardly politicians, Democrat and
Republican, refuse to end this barbarity.

The racial disparities of two decades of sweeping young black men off
the streets for crack are now cemented in American society. Americans
use illegal drugs roughly equally by race, but the Justice Policy
Institute reported last week that African-Americans, who are 13
percent of the population, are 53 percent of sentenced drug offenders
in state prisons. Similarly, The Sentencing Project reported in
September that African-Americans now spend nearly as much time in
prison for a drug offense (59 months) as a white person for a violent
offense (62 months).

The Supreme Court, even one that has become more conservative under
President Bush, can see how horrible that looks (the two dissenters
were Clarence Thomas and Samuel Alito). Ginsburg wrote "given all
this, it would not be an abuse of discretion for a district court to
conclude when sentencing a particular defendant that the crack/powder
disparity yields a sentence 'greater than necessary.' "

With the court's ruling yesterday, Congress should eliminate
100-to-1.