JUSTICES RESTORE JUDGES' CONTROL OVER SENTENCING

WASHINGTON -- The Supreme Court on Monday restored federal judges to
their traditional central role in criminal sentencing.

In two decisions, the court said federal district judges had broad
discretion to impose what they think are reasonable sentences, even
if federal guidelines call for different sentences.

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-to-2 alignment, chided federal
appeals courts for failing to give district judges sufficient leeway.
The appeals court had in each case overturned a sentence that was
lower than that provided by the guidelines. The two dissenters were
Justices Clarence Thomas and Samuel A. Alito Jr.

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 the decision on Monday
gives judges broad discretion to impose sentences higher or lower
than the guidelines, which are not statutes and are issued by the
United States 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."

Last June, in Rita v. United States, the court ruled that appeals
courts could choose to presume that sentences within the guidelines
range were reasonable, but that such a presumption was not binding.
But that opinion was quite opaque and said relatively little about
the trial judge's role.

It is now clear that while judges should consult the guidelines, they
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 Justice Stevens went on to say that the guidelines were just one
factor in the "individualized assessment" that a judge must make in
every case. The judge "may not presume that the guidelines range is
reasonable," he said.

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

The United States Court of Appeals for the Eighth Circuit, in St.
Louis, ruled that such an "extraordinary" variance from the
guidelines range required an equivalently extraordinary justification.

That judgment was erroneous, Justice Stevens said, in failing to give
"due deference" to the district judge's "reasoned and reasonable
decision." He added that "if the sentence is outside the guidelines
range, the court may not apply a presumption of unreasonableness."

Nor, he continued, should a sentence be overturned just because the
appeals court "might reasonably have concluded that a different
sentence was appropriate."

The defendant in the crack cocaine case, Derrick Kimbrough, received
15 years instead of 19 to 22 1/2 for several cocaine and gun-related
offenses. The sentence was the lowest possible, given the statutory
mandatory minimum sentences.

The trial judge said the higher guidelines term would be
inappropriate for Mr. Kimbrough, a Marine veteran of the Persian Gulf
war with an honorable discharge. The judge also disagreed with the
relative treatment of crack and powdered cocaine, a disparity that he
said led to "disproportionate and unjust" results.

The United States Court of Appeals for the Fourth Circuit, 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."

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.

Prof. Douglas A. Berman of the Moritz College of Law at Ohio State
University, an expert on sentencing, called the decisions a "stinging
rebuke of circuit court micromanagement of district court discretion."

The decision in the crack cocaine case, Kimbrough v. United States,
No. 06-6330, was particularly pointed in this regard. In her majority
opinion, Justice Ruth Bader Ginsburg said that ordinarily, "closer
review may be in order" when a judge's sentence is based on a policy
disagreement with the guidelines.

But she went on to say that this higher level of appellate scrutiny
should not apply to a sentence based on a district judge's critique
of the crack-powder disparity.

Justice Ginsburg's opinion took account of an important policy
development since the case was argued on Oct. 2. On Nov. 1, amended
guidelines for crack cocaine that the United States Sentencing
Commission had long advocated took effect when Congress, which had
the power to block them, let the moment pass without acting.

Justice Ginsburg said that "this tacit acceptance" of the amendment
by Congress "undermines the government's position" that judges should
not have discretion to depart from the guidelines themselves.

The amendments put into effect a relatively modest change that will
reduce sentences for crack by about one-quarter, resulting in
sentences that are two to five times longer than for equivalent
amounts of powdered cocaine.

The commission was limited in what it could accomplish on its own. A
1986 federal law, enacted at the height of public concern about
crack, incorporated a 100 to one ratio into mandatory minimum
sentences -- that is, the same sentence was imposed for a given
amount of crack and 100 times that amount of powder.

The Sentencing Commission guidelines operated as an overlay on that
statutory framework. But as the commission studied the impact, it
grew concerned. A 2002 report noted that 85 percent of defendants
convicted of crack offenses were black, a fact the commission warned
was leading to a loss of confidence in the fairness of the system.

Bipartisan bills are pending in Congress to address the disparity. On
Tuesday, the Sentencing Commission will vote on whether to make the
Nov. 1 amendment retroactive to the 19,500 inmates imprisoned for
crack offenses.

The court's endorsement of judges' discretion raised the prospect
that higher sentences, not only lower ones, would now be upheld on appeal.

Current statistics indicate that defendants benefit the most when
judges depart from the guidelines. Below-guidelines sentences have
been given in 11.9 percent of cases, and above-guidelines sentences
in 1.6 percent. 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 Drug Law
Reform Project of the American Civil Liberties Union.