U.S. Supreme Court Eases Way for Sentencing Departures

U.S. Supreme Court

U.S. Supreme Court Eases Way for Sentencing Departures

Posted Dec 10, 2007, 09:24 am CST
By Debra Cassens Weiss

Updated: Judges may conclude that federal sentencing guidelines for crack cocaine are too harsh given the disparity with recommended sentences for powder cocaine, the U.S. Supreme Court ruled today.

The 7-2 ruling rejects a lower court view that the sentencing guidelines for cocaine are in effect mandatory, SCOTUSblog reports. The decision is one of two issued today easing the way for departures from federal sentencing guidelines.

"A district judge must include the guidelines range in the array of factors warranting consideration," Justice Ruth Bader Ginsburg wrote for the majority. "The judge may determine, however, that, in the particular case, a within-guidelines sentence is 'greater than necessary' to serve the objectives of sentencing."

The court affirmed a 15-year sentence for Iraq war veteran Derrick Kimbrough, even though guidelines said he should get a sentence of 19 to 22 years in prison, the Associated Press reports.

The decision is Kimbrough v. United States (PDF posted by SCOTUSblog).

The U.S. Sentencing Commission recently changed the guidelines to reduce the crack vs. powder cocaine sentencing disparity. The change took effect Nov. 1. On Tuesday the commission is set to vote on whether to make the change retroactive. The ABA opposes the sentencing differential and supports retroactivity.

In a second sentencing decision today, the Supreme Court said in a 7-2 ruling that lower courts may use a deferential standard when reviewing sentences below the guidelines range, the blog says. The St. Louis-based 8th U.S. Circuit Court of Appeals said below-guidelines sentences are reasonable only if there are “extraordinary sentences.” But the ruling by Justice John Paul Stevens said reviewing courts may use an “abuse of discretion” stands.

"We now hold that, while the extent of the difference between a particular sentence and the recommended guidelines range is surely relevant, courts of appeals must review all sentences—whether inside, just outside, or significantly outside the guidelines range—under a deferential abuse-of-discretion standard," Stevens wrote for the court.

The decision is Gall v. United States.

Writing at his blog Sentencing Law and Policy, law professor Douglas Berman of Ohio State University says the Gall decision may have more long-range impact. Among the big winners, he says, are criminal defense lawyers, "who now have many new and renewed arguments for arguing for below-guideline sentences."

Updated at 9:37 AM to include more information from the Kimbrough opinion, at 9:45 AM to include more information from the Gall opinion, at 9:55 AM to include information on crack sentencing guidelines, and at 1:58 PM to include information for the Sentencing Law and Policy blog.

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Posted by J.D. - 11 months, 3 weeks, 22 hours, 54 minutes ago

RE: “the commission is set to vote on whether to make the change retroactive”

As noted in an earlier ABA article, at least 20,000 convicted crackheads will be released back into your neighborhoods if the commission decides to retroactively apply the sentencing change.

I thought we were concerned about black America… Apparently not.
Posted by AV - 11 months, 2 weeks, 5 days, 21 hours, 14 minutes ago

As someone involved on the law enforcement side of this issue I see this as an unfortunate occurrence. We have strived to use this tool as a means to target violent individuals who most often have multiple prior convictions for drug distribution as well as for firearms violations and other crimes of violence. While the proponents of this change would have you believe that there are many serving lengthy prison terms for simple possession of small amounts of crack - nothing could be further from the truth. It amazes me how a few anecdotal stories - truly aberrations from the norm - continue to make the rounds in the media and have apparently swayed otherwise intelligent people. The unfortunate truth is that many liberal leaning judges will use this as an opportunity to release some extremely dangerous individuals back into our communities sooner rather than later. Thankfully, we have some judges who will not be quite so easily swayed. By the way, the minimum mandatory sentence for 5 grams of pure methamphtamine, a “white” drug, is 5 years and for 50 grams of pure is 10 years. Equivalent to the sentences for crack. That is conveniently never discussed by the media or anyone else who is a proponent of the reduction.
Posted by Unbelievable - 11 months, 2 weeks, 5 days, 23 minutes ago

I understand the concern. But the reality is that before “crank” or meth came on the scene, there was—and still is—a HUGE disparity with how much time a crack conviction garnered with a small amount versus how much time a cocaine conviction garnered with a small amount. And cocaine is still considered to be a “white collar” drug. I’m all about being tough on drugs. But let’s make sure there’s parity in sentencing. It’s ridiculous…
Posted by JIT (Justice In Tandem) - 11 months, 2 weeks, 4 days, 20 hours, 32 minutes ago

I would like to know if Mr. AV would take the same stance if, instead of relaxing the sentencing guideline for crack, the Courts and the Commission decided to increase the mandatory sentence for Cocaine. As much as we would like to see criminals behind bars, justice could never be served if it is based on race, demography, finance, and so on. Nor if it is based on other characteristics with significant bearing on race, ethnicity and the aforementioned. If sentencing is going to be based on the type of drug, then objective consideration must be given to the level of danger that the specific drug poses to our community.
Justice for all, should be the motto of justices!

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