SUPREME COURT GIVES JUDGES MORE LEEWAY IN CRACK-COCAINE SENTENCING

In two decisions Monday, the high court offers guidance on US
sentencing guidelines. By Warren Richey | Staff writer of The
Christian Science Monitor Federal judges have discretion to sentence
individuals to prison terms that substantially depart from the
punishment range established in the federal sentencing guidelines.

In a pair of 7-to-2 decisions announced Monday, the US Supreme Court
offered important guidance to federal judges who have been struggling
to mete out sentences after the high court's 2005 ruling that said
the sentencing guidelines established by Congress are no longer
mandatory, but are now only advisory.

How much sentencing flexibility does the Supreme Court say such
advisory guidelines permit?

In the two cases decided Monday, the justices overturned appeals
courts that had invalidated sentences substantially below the range
of sentences suggested under the guidelines.

In one, the federal judge had rejected the disparity between
crack-cocaine sentences and powder-cocaine sentences. The federal
appeals court said the judge lacked the discretion to do so and
overturned the sentence.

In the other case, the judge issued a more lenient sentence in
recognition that the defendant had turned his life around, took
responsibility for his crime, and was leading a productive life. The
appeals court reversed the lower sentence, saying the judge failed to
offer the necessary extraordinary circumstances to justify a sentence
so far below the guidelines.

The two decisions together establish a new, higher standard for
appeals courts to overturn a judge's sentence. An appeals court must
find that a particular sentence is unreasonable and that the
sentencing judge abused his or her discretion in weighing the various
factors that led to the sentence.

The touchstone of this test is that federal judges impose sentences
sufficient, but not greater than necessary to accomplish the
sentencing goals set by Congress.

Writing for the majority in the crack-cocaine case, Justice Ruth
Bader Ginsburg noted the extensive debate - including within the
Sentencing Commission itself - over the disparity between
crack-cocaine sentences and powder-cocaine sentences. "Given all
this," she writes, "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."

The crack-cocaine disparity has long been a source of controversy.

The sentencing guidelines boost the amount of punishment based on the
quantity of drugs seized. Although crack cocaine and powder cocaine
are the same drug (but in different forms), the sentencing guidelines
award sentences three to six times longer for crack offenses than for
powder-cocaine offenses.

Under the guidelines, possession of five grams of crack triggers a
five-year mandatory sentence, while it would take 100 times that
amount - 500 grams - to trigger a similar five-year mandatory
sentence for possession of powder cocaine.

Legal analysts say the guidelines were written in the 1980s amid
extraordinary fear and misinformation about crack cocaine. Studies
have since shown that crack is no more or less dangerous than powder
cocaine. The sentencing disparity has been devastating in the
African-American community, where black defendants are incarcerated
for crack-related crimes at substantially higher proportions than whites.

Of those sentenced in federal court for crack-cocaine trafficking, 88
percent were African-American and only 4 percent were white,
according to a 1995 study. Yet more than half of all crack users were
white, according to another study.

The high-court decision comes in the case of convicted crack dealer
Derrick Kimbrough. He was arrested in 2004 in Norfolk, Va., with 56
grams of crack and 92 grams of powder cocaine. Under the guidelines,
Mr. Kimbrough faced a sentence of 14 to 17-1/2 years in prison for
the drug portion of his case. But the guidelines were no longer
mandatory. After studying the disparity issue, the judge decided to
sentence Kimbrough to 10 years in prison for the drug portion of the case.

A federal appeals court panel in Richmond, Va., vacated the sentence,
declaring that even though the guidelines are only advisory, a
sentence so far below the guidelines range was unreasonable.

In reversing the appeals court, Justice Ginsburg said, "The district
court properly homed in on the particular circumstances of
Kimbrough's case and accorded weight to the Sentencing Commission's
consistent and emphatic position that the crack/powder disparity is
at odds with [the federal sentencing law]."

The second decision was written by Justice John Paul Stevens. It
involves the case of Brian Gall, an Iowa construction company owner,
who pleaded guilty to helping distribute 10,000 tablets of the
illegal drug Ecstasy while he was a 21-year-old college student.

The federal judge in his case rejected the suggested guidelines
sentence of three years in prison and instead sentenced Mr. Gall to
three years' probation.

Gall had pleaded guilty to the drug crime and cooperated with federal
agents investigating the matter. The judge noted that Gall's
participation in the conspiracy lasted only a period of months when
he was relatively young, and that in the four years since the end of
his drug dealing, he had turned his life around by no longer using
drugs or alcohol, graduating from college, and starting and running
his own successful construction business.

When confronted by federal agents years later about his alleged drug
dealing as a student, Gall accepted responsibility and expressed remorse.

The judge's sentence was overturned by a federal appeals court in St.
Louis. The appeals court said probation was an unreasonable
punishment in light of the seriousness of Gall's prior drug dealing.
A sentencing judge must show extraordinary circumstances to justify
such a sentence, the court said.

In reversing the appeals court, Justice Stevens writes that federal
judges must consider the sentencing guidelines and must explain and
justify the appropriateness of an unusually lenient or harsh
sentence. "An appellate court may take the degree of variance into
account and consider the extent of deviation from the guidelines, but
it may not require 'extraordinary' circumstances or employ a rigid
mathematical formula," he says.

Stevens wrote that the appeals court "failed to give due deference to
the district court's reasoned and reasonable sentencing decision."

Two justices dissented in both decisions. Justice Clarence Thomas
said he would uphold the appeals courts because their decisions were
aimed at upholding the sentencing goals of Congress. The other
dissenting justice is Samuel Alito.