JUSTICES WIDEN SENTENCING POWERS OF FEDERAL JUDGES

WASHINGTON, Dec. 10 - The Supreme Court today enhanced the power of
federal district judges to use their discretion in arriving at
sentences in criminal cases as it upheld a relatively light sentence
imposed on a crack cocaine distributor.

By 7 to 2, the court held that "the cocaine guidelines, like all
other guidelines, are advisory only," in the words of Justice Ruth
Bader Ginsburg, who wrote for the majority. She cited a 2005 Supreme
Court decision, United States v. Booker, that "mandatory guidelines"
in federal cases gave judges too much fact-finding responsibility,
and that the guidelines should be "advisory" instead.

The majority concluded today that a district judge in Virginia acted
properly in April 2005 when he refused to follow federal sentencing
guidelines calling for far harsher penalties for trafficking in crack
cocaine than they do for dealing in the powder form of the drug. In a
nutshell, the effect of this ruling is to give sentencing judges
considerably more discretion in criminal cases.

In the Booker decision of 2005, the court did not spell out clearly
what it meant by "advisory," so there has been considerable confusion
throughout the criminal justice system.

In a second sentencing case, also decided today by 7 to 2, the court
upheld the three years' probation imposed upon Brian M. Gall, who was
part of a ring that sold the illegal drug Ecstasy while in college in Iowa.

The trial judge concluded that prison would do him no good, since he
had finished college and turned his life around. But the United
States Court of Appeals for the Eighth Circuit, in St. Louis, found
that the judge had not sufficiently justified his departure from the
guidelines, which called for three years in prison. Today, the
Supreme Court said the trial judge was right.

The disparities between prison terms for dealing in crack and for
peddling powdered cocaine have for years angered some lawyers and
civil rights advocates, who have argued that the crack-cocaine
penalties unfairly punish black defendants more severely than they do
whites. Crack is much more common in poor urban areas than the powder
favored by white users, and black people make up 80 percent of those
sentenced for crack-dealing.

Two decades ago, when the effects of the two forms of cocaine were
less well understood, there was a collective assumption that crack
cocaine was far deadlier, although subsequent studies have shown that
they "have the same physiological and psychotropic effects," as
Justice Ginsburg put it.

But the United States Sentencing Commission, created in the
mid-1980's to recommend appropriate federal prison terms and lessen
wildly disparate sentences in cases of similar circumstances,
provided punishments for crack cocaine that were far more severe than
those associated with the powder - the same five-year minimum for
possessing 5 grams of crack as for 100 times as much powdered
cocaine, for instance.

In fact, the sentencing commission recently issued new guidelines
that will reduce the average sentence for cocaine possession to 8
years 10 months, from 10 years 1 month. The panel is to meet on
Tuesday in Washington to consider whether the reduction should be
made retroactive. If the answer is "yes," some 19,000 prisoners could
have their sentences reduced.

Even before the new guidelines, more and more federal judges had been
rebelling over the crack v. powder disparity. One of them was Judge
Raymond A. Jackson, who refused to sentence Derrick Kimbrough of
Norfolk to the 19-to-22-year sentence called for in the guidelines
after Mr. Kimbrough pleaded guilty to possessing and distributing
more than 50 grams of crack.

"Ridiculous" and "clearly inappropriate" Judge Jackson said of the
guidelines as they supposedly applied to the case of Mr. Kimbrough,
who the judge noted had no prior felony convictions, was gainfully
employed and had served honorably in the Marine Corps in the Persian
Gulf war. The judge sentenced him to 15 years, the lightest term
possible under the statutory minimums.

But the United States Court of Appeals for the Fourth Circuit, in
Richmond, rejected Judge Jackson's reasoning and ordered him to
resentence the defendant. The appeals court, differing with appeals
judges in other circuits who had found that sentencing judges did
have considerable discretion, said it was "unreasonable" for Judge
Jackson to have departed from the guidelines just because he
disagreed with the disparity between punishments linked to crack and
powdered cocaine.

But Justice Ginsburg said the Fourth Circuit was wrong, and that the
sentence imposed by Judge Jackson "should survive appellate
inspection." She wrote that the sentencing judge had "properly homed
in on the particular circumstances of Kimbrough's case."

Justices Clarence Thomas and Samuel A. Alito Jr. were the dissenters
today in Kimbrough v. United States, No. 06-6330. Justice Thomas
wrote that, in declaring the guidelines only advisory two years ago,
the Supreme Court had come up with a remedy "far broader than
necessary to correct constitutional error."

"Because the court's decisions in this area are necessarily grounded
in policy considerations rather than law, I respectfully dissent,"
Justice Thomas wrote.

The 100-to-1 ratio in sentences for crack and powder cocaine
originated in the Anti-Drug Abuse Act of 1986. Several bills have
been introduced in Congress to address the disparities between
sentences for crack and for powdered cocaine.