Pubdate: Tue, 12 Jun 2007
Source: New York Times (NY)
Copyright: 2007 The New York Times Company
Contact:  http://www.nytimes.com/
Details: http://www.mapinc.org/media/298
Author: Linda Greenhouse
Bookmark: http://www.mapinc.org/topics/federal+sentencing (Federal Sentencing)
Bookmark: http://www.mapinc.org/find?199 (Mandatory Minimum Sentencing)
Bookmark: http://www.mapinc.org/find?247 (Crime Policy - United States)
Bookmark: http://www.mapinc.org/coke.htm (Cocaine)

COURT TO WEIGH DISPARITIES IN COCAINE LAWS

WASHINGTON -- The Supreme Court, expanding its review of federal 
criminal sentencing, agreed Monday to consider the proper judicial 
response to the sharp disparity in the way the law treats crack 
cocaine and cocaine powder.

The court will address a growing rebellion among judges who have been 
issuing sentences lighter than those called for under the federal 
sentencing guidelines for criminals convicted of crack cocaine 
offenses. The federal appeals courts are divided on whether judges 
are permitted to exercise such discretion.

The lower courts have been trying to ease the impact of a 21-year-old 
federal law that imposes the same five-year mandatory minimum 
sentence for possession of 5 grams of crack, a bit more than a fifth 
of an ounce, as for 500 grams, or 1.1 pounds, of cocaine powder.

The 10-year mandatory sentence in the law incorporates the same 
100-to-1 ratio. It is imposed for possession of 50 grams of crack, 
about one and three-quarters ounces, and 5 kilograms of powder, 11 pounds.

The federal sentencing guidelines have in turn incorporated the same 
disparity in the formulas by which a judge is supposed to build on 
the mandatory minimum and calculate an offender's actual sentence.

Critics of the disparity, federal judges among them, have observed 
that the harsh sentences for crack offenses have had a 
disproportionate impact on black men from poor urban areas, where 
crack is much more common than the cocaine powder favored by white 
users. African-Americans make up 80 percent of those sentenced for 
trafficking in crack.

 From among many cases pending at the Supreme Court on the question, 
the justices selected an appeal filed by the federal public 
defender's office in Virginia on behalf of a man from Norfolk, 
Derrick Kimbrough, who pleaded guilty to two counts of possessing and 
distributing more than 50 grams of crack cocaine.

Taking account of Mr. Kimbrough's criminal history and other factors, 
including a gun possession charge that added a mandatory five-year 
sentence, the federal guidelines called for a range of 19 to 22 years.

Judge Raymond A. Jackson of Federal District Court, pronouncing such 
a sentence "ridiculous" and "clearly inappropriate," refused to 
impose it. Judge Jackson observed that Mr. Kimbrough had served in 
combat in the Persian Gulf war, had received an honorable discharge 
and was gainfully employed, with just misdemeanors and no previous 
felonies on his record.

Noting that the federal sentencing law requires judges to "impose a 
sentence sufficient, but not greater than necessary" to achieve the 
statute's purposes, Judge Jackson gave Mr. Kimbrough 15 years, the 
lowest possible given the statutory mandatory minimums.

The United States Court of Appeals for the Fourth Circuit, in 
Richmond, rejected Judge Jackson's reasoning and ordered resentencing.

"A sentence that is outside the guidelines range is per se 
unreasonable when it is based on a disagreement with the sentencing 
disparity for crack and powder cocaine offenses," the three-judge 
appeals court panel said.

The Fourth Circuit is thus at odds with other appeals courts, 
including the Third Circuit in Philadelphia, which ruled last fall 
that "a sentencing court errs when it believes that it has no 
discretion to consider the crack/powder cocaine differential 
incorporated in the guidelines."

In February, the United States Court of Appeals for the District of 
Columbia Circuit issued a similar opinion that was sharply critical 
of the disparity and said, "A sentencing judge cannot simply presume 
that a guidelines sentence is the correct sentence" for an offense 
involving crack.

Those appeals courts both noted that in 2005 the Supreme Court itself 
had made the guidelines advisory rather than binding, based on its 
conclusion that the guidelines system impinged on a defendant's right 
to have a jury make the central determinations on which a sentence is based.

The Supreme Court's failure to spell out in that decision, United 
States v. Booker, exactly what it meant by "advisory" has caused 
confusion throughout the criminal justice system. The court had hoped 
to resolve much of the confusion this term by hearing two cases 
presenting different aspects of the issue.

One case, Rita v. United States, No. 06-5754, which the justices are 
likely to decide in the next few weeks, raises the question of 
whether a sentence within the guidelines range should be presumed reasonable.

The second case, Claiborne v. United States, No. 06-5618, evaporated 
last month when the defendant, Mario Claiborne, who was free after 
serving his sentence, was shot to death in St. Louis. His case raised 
the question of what kind of explanation a judge has to give to 
justify a sentence below the guidelines range.

On Monday, the justices accepted a new case with similar facts as a 
substitute. A judge gave the defendant, Brian M. Gall, a sentence 
well below that called for by the guidelines, three years' probation 
rather than three years in prison.

Mr. Gall, while a college student in Iowa, had been part of a ring 
that sold the illegal drug Ecstasy. He left the ring after eight 
months, finished college, moved to Arizona, started a business and 
lived an evidently crime-free life. The trial judge found that 
because Mr. Gall had learned his lesson and reformed, prison time 
would serve no purpose.

But the United States Court of Appeals for the Eighth Circuit, the 
same St. Louis-based court that issue the decision that had been 
under review in the Claiborne case, ordered resentencing, finding 
that such an "extraordinary" departure from the guideline range 
required an "extraordinary" justification.

The justices will hear Mr. Gall's appeal, Gall v. United States, No. 
06-7949, after the new term begins in October.

No action had been expected at this point on Mr. Kimbrough's pending 
appeal of his crack cocaine sentence. But the justices evidently 
decided that as long as their review of sentencing would, 
unexpectedly, take them into the next term in any event, they should 
add a case on the crack issue to address the particular issues that 
these cases raise.

The decision to hear the case, Kimbrough v. United States, No. 
06-6330, comes at a potentially significant moment in the debate over 
the question.

Last month, the United States Sentencing Commission, which has tried 
unsuccessfully for years to persuade Congress to reduce the disparity 
in the mandatory minimum sentences, announced its intention to reduce 
crack offenses by two levels in the guidelines formula.

That change will cut sentences for crack by about one-third, 
substantially reducing the disparity without legislative action. Last 
year, the average sentence for crack cocaine was 10 years, compared 
with 7 for cocaine powder. 
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MAP posted-by: Richard Lake