Pubdate: Tue, 11 Dec 2007
Source: Boston Globe (MA)
Copyright: 2007 Globe Newspaper Company
Contact:  http://www.boston.com/globe/
Details: http://www.mapinc.org/media/52
Author: Derrick Z. Jackson
Bookmark: http://www.mapinc.org/coke.htm (Cocaine)
Bookmark: http://www.mapinc.org/find?199 (Mandatory Minimum Sentencing)

HIGH COURT'S SENSIBLE SENTENCING

THE CRACKS in America's most racist set of laws widened  dramatically
yesterday when the Supreme Court voted 7-2  that a federal district
judge can reduce a sentence for  crack cocaine that would have been
much worse under  federal guidelines.

"We hold that . . . the cocaine guidelines, like all  other
guidelines, are advisory only and that the Court  of Appeals erred in
holding the crack/powder disparity  effectively mandatory . . . The
judge may consider the  disparity," wrote Justice Ruth Bader Ginsburg.

The decision involved the case of Derrick Kimbrough, an
African-American who saw combat in Operation Desert  Storm in 1991. He
pleaded guilty in Norfolk, Va., to  selling both crack and powdered
cocaine and possessing  a firearm. He was a first-time offender with
an  honorable discharge from the Marines and a steady  employment
record. He was busted with another defendant  by two cops as they sat
in a car.

Had the cocaine involved been just powder, Kimbrough  faced a
mandatory sentencing guideline of 8 to 8 3/4  years. Under the laws
that punish crack far more  harshly than powder, so much so that it
takes 100 times  more powder to trigger the same mandatory sentences,
Kimbrough instead faced 19 to 22 1/2 years.

The district judge weighed the disparity in sentencing  with the facts
that Kimbrough had an otherwise clean  felony record and that like the
US Sentencing  Commission long ago concluded, "crack cocaine has not
caused the damage that the Justice Department alleges  it has." While
no one was saying that what Kimbrough  did was not serious, the judge
said the crime "was an  unremarkable drug-trafficking offense."

The judge sentenced Kimbrough to 15 years. A federal  appeals court
overturned the sentence, saying it  strayed too far from the
guidelines. Yesterday, the  high court - with even Chief Justice John
Roberts and  Justice Antonin Scalia joining in - said the district
judge "appropriately framed its final determination" in  line with
recent Supreme Court rulings that guidelines  are advisory to properly
"impose a sentence sufficient,  but not greater than necessary." The
district court  appropriately concluded that the crack sentencing
guidelines drove the punishment "to a point higher than  is necessary."

The Supreme Court did not throw out the 100-to-1 ratio  in its ruling,
but Ginsburg thoroughly debunked it. The  laws originated in 1986, at
a time when crack was the  new scary drug in society.

Ginsburg yesterday recounted in her opinion, "Congress  apparently
believed that crack was significantly more  dangerous than powder
cocaine in that: (1) crack was  highly addictive; (2) crack users and
dealers were more  likely to be violent than users and dealers of
other  drugs; (3) crack was more harmful to users than powder,
particularly for children who had been exposed by their  mothers' drug
use during pregnancy; (4) crack use was  especially prevalent among
teenagers; and (5) crack's  potency and low cost were making it
increasingly  popular."

In the years since, medical researchers and criminal  justice experts
have discovered that there is no  difference between crack and powder
and the majority of  trafficking in both forms of the drug are
nonviolent.  Yet, even though the majority of crack users are white,
85 percent of convicted federal crack offenders are  black. But the
laws have continued, as cowardly  politicians, Democrat and
Republican, refuse to end  this barbarity.

The racial disparities of two decades of sweeping young  black men off
the streets for crack are now cemented in  American society. Americans
use illegal drugs roughly  equally by race, but the Justice Policy
Institute  reported last week that African-Americans, who are 13
percent of the population, are 53 percent of sentenced  drug offenders
in state prisons. Similarly, The  Sentencing Project reported in
September that  African-Americans now spend nearly as much time in
prison for a drug offense (59 months) as a white person  for a violent
offense (62 months).

The Supreme Court, even one that has become more  conservative under
President Bush, can see how horrible  that looks (the two dissenters
were Clarence Thomas and  Samuel Alito). Ginsburg wrote "given all
this, 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.' "

With the court's ruling yesterday, Congress should  eliminate
100-to-1.
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MAP posted-by: Steve Heath