Court looks again at sentencing laws

The Supreme Court takes up two cases Tuesday that could bring clarity to what has become a murky federal sentencing system.

from the October 2, 2007 edition

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The second case, Kimbrough v. US, touches on the longstanding dispute over a discrepancy in the sentencing guidelines between crack cocaine and powder cocaine. The guidelines boost the amount of punishment based on the quantity of drugs seized. Because the guidelines were written in the mid-1980s at a time of fear and misinformation about crack cocaine, they reflect substantially larger penalties for crack than for powder cocaine.

For example, 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.

The disparity imposes real-world consequences, particularly in the African-American community. "African Americans are incarcerated for federal crack-related offenses in vastly higher numbers and proportions than whites," writes Ian Gershengorn, a lawyer with Jenner & Block in Washington, in a friend-of-the-court brief on behalf of the NAACP Legal Defense and Educational Fund.

Of those sentenced in federal court for crack-cocaine trafficking, 88 percent were African-American and only 4 percent were white, Mr. Gershengorn writes, citing a 1995 study. Yet, more than half of all crack users were white, according to another study. Researchers say police target low-level street dealers in black neighborhoods because the cases are easy to make.

The issue is not new. The Sentencing Commission, a government agency, has recommended four times – in 1995, 1997, 2002, and five months ago – that Congress eliminate the crack-cocaine disparity. Three bills are pending in the Senate. And in May, the commission adopted a rule reducing the disparity. The rule will automatically take effect in November if Congress does not act. "There is near universal agreement that the current sentencing structure is unjust and unfair," says Kara Gotsch of the Washington-based Sentencing Project. "The fact that 20 years have gone by and Congress has not sought to change this cocaine ratio disparity is unconscionable."

The issue arises at the high court 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. (Gun charges were also part of the 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 is unreasonable.

In his brief to the court, Solicitor General Paul Clement says that Congress made a policy determination to establish the 100-to-1 crack-cocaine ratio and has never rescinded it. He says courts must abide by it even if they disagree with it.

Kimbrough's lawyers counter that federal judges enjoy broad authority to consider information that might lead a judge to reject the suggested guidelines sentence as too harsh. Congressional inaction on the 100-to-1 ratio does not bind the sentencing judge, they say.

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