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Analysis of Justices’ Revised Crack Sentencing Guidelines

December 10, 2007 at 12:00 AM EDT
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A report on the Supreme Court's two recent rulings revising sentencing guidelines, then an analysis of the decisions by Marcia Coyle of the National Law Journal.

JIM LEHRER: Those sentencing decisions at the Supreme Court. NewsHour regular Marcia Coyle of the National Law Journal is here to take us through it.

Marcia, welcome.

MARCIA COYLE, National Law Journal: Hi, Jim, thank you.

JIM LEHRER: All right, there were actually two decisions on this. Give us a quick run-through of what the cases were about.

MARCIA COYLE: OK, two separate 7-2 decisions: first, holding judges may consider the harshness of the 100-to-1 sentencing disparity for crack and powder cocaine offenders in imposing a sentence; and, second, judges who significantly depart from a recommended sentence under the federal sentencing guidelines do not have to justify that by extraordinary circumstances. They just have to have an adequate explanation that’s reasonable.

JIM LEHRER: All right, so let’s go back to the 100-to-1 disparity. What was that all about?

MARCIA COYLE: All right, this case involved Derrick Kimbrough, who pled guilty to trafficking in crack cocaine. The sentencing judge considered, among other factors, the 100-to-1 sentencing disparity which treats crack cocaine offenders more harshly than powder cocaine.

JIM LEHRER: What is that? What exactly is that?

MARCIA COYLE: All right, crack cocaine is an inexpensive form of powdered cocaine. And it’s smoked. Powdered cocaine is generally inhaled. Crack cocaine is more popular in our urban areas and among the poor. Powder cocaine is generally white, middle, upper-class users.

JIM LEHRER: And so the law said the 100-to-1, they put that in the law to make it harsher, right? In other words…

MARCIA COYLE: The origins of the disparity date back to 1986 and the Anti-Drug Abuse Act that Congress enacted. Congress at the time and others felt and believed that crack cocaine was significantly more dangerous than powder cocaine, that it lead to more violent crimes, more crime in general.

So Congress treated one gram of crack as equal to 100 grams of powder cocaine. So if you had five grams of crack, you were sentenced to a minimum prison term of five years, but it would take 500 grams of powdered cocaine to get the same sentence.

100-to-1 disparity one factor

JIM LEHRER: OK. Now, it was a 7-2 vote in this case, as it was in the other. But in this case, what did the seven -- who are the seven or, more importantly, who were the dissenters and what did the majority rule?

MARCIA COYLE: OK. The two dissenters were Justices Thomas and Alito. The majority opinion was written by Justice Ginsburg. And she said that the lower appellate court here that reviewed the sentence imposed on Kimbrough erred by...

JIM LEHRER: That's the first case.

MARCIA COYLE: ... Derrick Kimbrough, the crack cocaine case -- erred by saying, basically, that the guideline on the 100-to-1 disparity was mandatory, was per se unreasonable for the judge to consider the disparity in sentencing him.

She said that the guidelines have been made advisory. It's one thing to consider. And this sentencing judge not only considered the harshness of the disparity, but also honed in on Kimbrough's background. He had no prior felony convictions. He had served with distinction as a Marine in Operation Desert Storm and he was gainfully employed. So this sentence was reasonable.

She also said that the disparity is one factor among many and that the government argument that Congress had incorporated the disparity into federal law and judges could not depart from it was also wrong, because judges -- I'm sorry, because the federal law sets minimums and maximums and says nothing about what's in between. And the court would not infer in that silence that the guideline was...

JIM LEHRER: And so the majority says there was more discretion there than the lower courts had said.

MARCIA COYLE: Absolutely.

Two conservatives with majority

JIM LEHRER: All right, now this seven majority, that includes two conservatives, does it not, that normally do not go with these other -- with the liberals, right?

MARCIA COYLE: Well, this area of sentencing is very different. This case is another step in a line of cases which have closely divided the court on sentencing. The court has been trying to give a lot of substance to the Sixth Amendment right to jury trial, by saying that juries should find facts that increase a defendant's sentences, not judges.

And then it came up with the federal sentencing guidelines in which federal judges find facts, not juries. And so the court struck down the federal sentencing guidelines as violating the Sixth Amendment, but saved the federal guidelines by making them advisory, not mandatory.

And the court has split in nontraditional ways on this whole issue. But the two new conservatives, well, Chief Justice Roberts, unlike Justice Alito, seem to have accepted that this is the direction the court is headed in. And they're going to try to give some meaning to what the court is doing here, in terms of reviewing a judge's discretion.

Judges' discretion expanded

JIM LEHRER: And the second case, the judge's discretion is also at issue there, right? It frees them up a little bit more?

MARCIA COYLE: Yes, in a way, this case, I think, has more significant impact than the crack cocaine case. This case involved Brian Gall who, when he was in college, got involved in a conspiracy to distribute ecstasy. He also was addicted to the drug.

Before he graduated, he withdrew from the conspiracy, treated his drug addiction, graduated from college in Iowa, moved to Arizona, created a business, and then, about two years later, the government came and indicted him for that conspiracy when he was in college.

He went back to Iowa. He pled guilty. And the judge here said, "Well, you know, this guy has really turned his life around. The guideline sentence here is three years in prison; I'm going to give him three years probation."

The appellate court found that that sentence was unreasonable because it wasn't justified by extraordinary circumstances. In an opinion by Justice Stevens, the court said this was a reasonable sentence, that judges do not have to have extraordinary circumstances to depart downward like this.

JIM LEHRER: Simple wisdom and discretion will be enough?

MARCIA COYLE: Absolutely. Look at the facts, and apply the law.

JIM LEHRER: Right, and then go with them. So the bottom line here, finally, is that he's taking these two cases together. Forget crack cocaine for a moment. This does open up the discretionary a lot wider for judges, right, in sentencing?

MARCIA COYLE: It does. It does. In fact, it seems to take us back to before the federal sentencing guidelines, when we had indeterminate sentences. Judges had a lot of discretion. The guidelines were designed to help cabin that, but now we seem to be going back.

JIM LEHRER: OK, Marcia, thank you very much.

MARCIA COYLE: Thank you.