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Supreme Court examines disparity in crack and powder cocaine sentences
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    WASHINGTON — Less than 2 ounces of crack cocaine was enough to get Derrick Kimbrough a 15-year prison term.
    The Supreme Court debated Tuesday whether it should be even longer, taking on a topic with a strong racial dimension.
    The court heard arguments Tuesday in a pair of drug cases that included one dealing with a law that calls for tougher punishment for possession and distribution of crack cocaine than the powdered variety. The vast majority of crack offenders are black.
    Kimbrough, a black veteran of the 1991 war with Iraq, received a 15-year sentence for selling crack and powder cocaine, and possessing a firearm. U.S. District Judge Raymond A. Jackson of Norfolk, Va., considered the prison term ample, despite federal sentencing guidelines that recommended 19 to 22 years.
    In the other case, Brian Gall was given probation for his role in a conspiracy to sell 10,000 pills of ecstasy after U.S. District Judge Robert Pratt of Des Moines, Iowa, determined that Gall had voluntarily quit selling drugs several years before he was implicated, stopped drinking, graduated from college and built a successful business. The guidelines said Gall should have been sent to prison for 30 to 37 months.
    Appeals courts threw out both sentences.
    The challenges to criminal sentences center on a judge’s discretion to impose a shorter sentence than is called for in guidelines established, at Congress’ direction, by the U.S. Sentencing Commission. The guidelines were adopted in the mid-1980s to help produce uniform punishments for similar crimes.
    The cases are the result of a decision three years ago in which the justices ruled that judges need not strictly follow the sentencing guidelines. Instead, appellate courts would review sentences for reasonableness, although the court has since struggled to define what it meant by that term.
    Justice Stephen Breyer wondered whether there was a way for the court to find a path between forcing judges to adhere to the guidelines in all cases ‘‘and the opposite, which is to say they don’t have to do anything the commission says.’’
    The cases will be decided by spring 2008.
    Lawyers for Kimbrough and Gall said the court gave judges a lot of room to vary sentences when they support their decisions with good reasons.
    ‘‘If you have two district judges in the same courthouse and the one says, when I have a young defendant... I always go down, and the next judge says, I never consider age. Both of those are upheld under your view, I take it?’’ Chief Justice John Roberts asked Gall’s lawyer, Jeffrey Green.
    ‘‘Yes, both,’’ Green said.
    Kimbrough’s case did not present the justices with the ultimate question of the fairness of the disparity in crack and powder cocaine sentences. Congress wrote the harsher treatment for crack into a law that sets a mandatory minimum five-year prison sentence for trafficking in 5 grams of crack cocaine or 100 times as much cocaine powder.
    Seventy percent of crack defendants are given the mandatory prison terms.
    Kimbrough is among the remaining 30 percent who, under the guidelines, get even more time in prison because they are convicted of trafficking in more than the amount of crack that triggers the minimum sentences.
    Arguing for the longer sentence — 19 to 22 years — Justice Department lawyer Michael Dreeben said judges must impose sentences that the guidelines call for. ‘‘For a judge to say I think Congress and the guidelines are crazy is a textbook example of an unreasonable sentencing factor,’’ said Dreeben, a deputy solicitor general.
    Michael Nachmanoff, Kimbrough’s lawyer, said those guidelines don’t have to be followed because Congress only required mandatory minimum sentences. Kimbrough, in fact, received just such a sentence, Nachmanoff said.
    ‘‘Judge Jackson got it right in this case,’’ said Nachmanoff, the Federal Public Defender in Alexandria, Va. ‘‘He imposed a long sentence of 15 years.’’
    Advocates for reducing the disparity point to crime statistics that show crack is more of an urban and minority drug while cocaine powder is used more often by the affluent. They say harsher penalties for crack cocaine unfairly punish blacks.
    More than four-fifths of crack cocaine offenders in federal courts last year were black, according to the sentencing commission. By contrast, just over a quarter of those convicted of powder cocaine crimes last year were black, the commission said.
    Kimbrough actually had much more powder than crack, but it was the latter that determined the length of his prison term.
    The sentencing commission, an independent agency within the U.S. judiciary, voted in May to reduce the recommended sentencing ranges for people convicted of crack possession, a step toward lessening the disparity. The recommendation will become effective Nov. 1 unless Congress acts.
    At the same time, the commission urged Congress to repeal the mandatory prison term for simple possession and increase the amount of crack required to trigger obligatory five-year or more prison terms as a way to focus on major drug traffickers.
    The cases are Kimbrough v. U.S., 06-6330, and Gall v. U.S., 06-7949.

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