JUDGES GIVE LEEWAY IN CRACK SENTENCING

WASHINGTON -- The Supreme Court ruled Monday that federal judges can
impose shorter sentences for crack cocaine crimes, making them more in
line with those for powder cocaine -- a decision with a strong racial
dimension because the vast majority of crack offenders are black.

The court, by 7-2 votes in the crack case and one other involving
drugs, upheld more lenient sentences imposed by judges who rejected
federal sentencing guidelines as too harsh.

The decision was announced ahead of a vote scheduled for Tuesday by
the U.S. Sentencing Commission, which sets the guidelines, that could
cut prison time for as many as 19,500 federal inmates convicted of
crack crimes.

Justice Ruth Bader Ginsburg, writing for the majority in the crack
case, said a 15-year sentence given to Derrick Kimbrough was
acceptable, even though federal sentencing guidelines called for
Kimbrough to receive 19 to 22 years.

"In making that determination, the judge may consider the disparity
between the guidelines' treatment of crack and powder cocaine
offenses," Ginsburg said.

Kimbrough, a veteran of the first Gulf War, is black, as are more than
80 percent of federal defendants sentenced in crack cases. By
contrast, just over a quarter of those convicted of powder cocaine
crimes last year were black.

The Sentencing Commission recently changed the guidelines to reduce
the disparity in prison time for the two crimes. New guidelines took
effect Nov. 1 after Congress took no action to overturn the change.
Tuesday's vote is whether to apply the guidelines retroactively.

Monday's Supreme Court ruling grew out of a decision three years ago
in which the justices ruled that judges need not strictly follow the
sentencing guidelines. Instead, appellate courts would review
sentences for reasonableness, although the court has since struggled
to define what it meant by that term.

The guidelines were established by the Sentencing Commission, at
Congress' direction, in the mid-1980s to help produce uniform
punishments for similar crimes.

Justice Samuel Alito, who with Justice Clarence Thomas dissented in
both cases, said that after Monday's decisions, "Sentencing
disparities will gradually increase."

The second case decided by the court did not involve cocaine. The
justices upheld a sentence of probation for Brian Gall for his role in
a conspiracy to sell 10,000 pills of ecstasy.

U.S. District Judge Robert Pratt of Des Moines, Iowa, determined that
Gall had voluntarily quit selling drugs several years before he was
implicated, stopped drinking, graduated from college and built a
successful business. The guidelines said Gall should have been sent to
prison for 30 to 37 months.

"The sentence imposed by the experienced district judge in this case
was reasonable," Justice John Paul Stevens said in his majority opinion.

Stevens cautioned federal appeals courts to step in only when judges
abuse their discretion.

Appeals courts in both cases tossed out the lesser sentences imposed
by the judges. The Bush administration urged the Supreme Court to
follow suit and order tougher sentences.

Monday's rulings could embolden trial judges to vary their sentences
from the guidelines more frequently and diminish the chances that
appeals courts will overturn those sentences, said Douglas Berman, a
sentencing expert at the Ohio State University law school.

Kimbrough's case, though, did not present the justices with the
ultimate question of the fairness of the disparity in crack and powder
cocaine sentences. Congress wrote the harsher treatment for crack into
a law that sets a mandatory minimum five-year prison sentence for
trafficking in 5 grams of crack cocaine or 100 times as much cocaine
powder. The law also sets maximum terms.

Seventy percent of crack defendants are given the mandatory prison
terms.

Kimbrough is among the remaining 30 percent who, under the guidelines,
are supposed to receive even more time in prison because they are
convicted of trafficking in more than the amount of crack that
triggers the minimum sentences.

"A reviewing court could not rationally conclude that it was an abuse
of discretion" to cut four years off the guidelines-recommended
sentence for Kimbrough, Ginsburg said.

The court's decision and the Sentencing Commission's change in the
guidelines leave untouched the minimum sentences, which only Congress
can alter.

U.S. District Judge Reggie B. Walton of Washington, who served as a
top drug policy adviser to the first President Bush, applauded the
decision but called it a "minor fix."

"Obviously the Supreme Court can't rewrite legislation and they can't
rewrite the sentencing guidelines," said Walton, who once advocated
harsher penalties for crack cocaine crimes but believes the current
law has gone too far. "The ultimate fix has to be done by Congress."

Chief Justice John Roberts and Justices Stephen Breyer, Anthony
Kennedy, Antonin Scalia, David Souter, Ginsburg and Stevens formed the
majority in both cases.

The cases are Kimbrough v. U.S., 06-6330, and Gall v. U.S.,
06-7949.

Editor's note: Associated Press writer Matt Apuzzo contributed to this
report.