December 10, 2007

"A major restoration of flexibility for trial judges in drug cases."

SCOTUSblog explains this morning's Supreme Court case that authorized federal judges to lower sentences for crack cocaine crimes:
The Kimbrough ruling on punishing crack cocaine offenses marks a major shift in the debate that has raged for 21 years over the much more severe sentencing required for those whose crimes involved crack cocaine. The Sentencing Commission for years asked Congress to ease the 100-to-1 ratio, and usually failed, but only recently gained some flexibility to vary the Guideline range outside that ratio. The disparity in punishment has often been challenged as racially oriented, because black offenders more often are involved in possessing or distributing crack than powder....

The Court’s ruling, besides shoring up the Sentencing Commission’s criticism of crack punishment, also bolsters federal trial judges who in recent months have been experimenting with easing up on crack cocaine sentences. Whether this was a valid use of their authority, because it might and does result in below-Guidelines sentences, was the issue the Court decided in Kimbrough.

16 comments:

Simon said...

And take note of the vote division, ladies and gentlefolk - Justices Thomas and Alito on the short side of the two 7-2 votes, Scalia concurring with reservations.

George said...

Cop stops a junkie for speeding.

When the cop asks for his license and registration, the junkie wads up the aluminum foil containing his stash.

"Here, ossifer," says the junkie. "This silver bullet should explain everything."

Simon said...

"What has happened to stare decisis?" wailed Justice Breyer in School Cases last term, joined by (inter alios) Justice Ginsburg. Yet in today's other decision, Watson v. U.S., Justice Ginsburg wrote separately to say the court's 1993 decision in Smith v. United States, 508 U.S., ought to be overruled. Since Smith was a statutory case, stare decisis is at its absolute zenith - so much so that of the three Smith dissenters, neither Stevens nor Scalia were moved to join Ginsburg's call, and Souter wrote today's opinion which dismissively rebuffs such suggestions. Presumably, then, this concurrence will be cited every time Ginsburg cries stare decisis this term and beyond.

Richard Dolan said...

More interesting still was the fact that Breyer was in the majority in all three sentencing guidelines cases decided today (one of which was unanimous). Breyer was one of the chief architects of the sentencing guidelines, the whole point of which was to make sentencing for federal crimes more uniform by reducing substantially the sentencing discretion of individual federal district judges. For a long time, the guidelines were thought of as almost mandatory, and a district judge's decision to depart from the "guidelines range" in any case was considered brave because it was so often reversed. The Guidelines were basically an administrative law paradigm applied to the criminal justice system -- the only parallel I can think of where a similar regime was used to decide such individualized issues was the "disability grid" applied in Social Security cases by administrative law judges.

With today's decisions, the Court has taken a long step away from that paradigm in federal sentencing procedures. Of the three cases decided today, Kimbrough v. U.S. may be the most politically interesting (because the sentencing disparity for crack cocaine has been spun as an issue of racial justice). But I think that Gall v. U.S. will be the more significant over time. In that case, the Court dealt a body blow to the Sentencing Guidelines, by holding that a district judge's decision to depart from the guidelines range is henceforth subject to a “deferential abuse-of-discretion standard” on appellate review. We're not quite at the stage where sentencing in federal cases is back to the pre-guidelines approach (where any sentence within the statutory range was almost impossible to challenge on appeal). But a “deferential abuse-of-discretion standard” will inevitably move sentencing decisions a long way back to a system where individual federal district judges have wide discretion in imposing sentence.

There are two main consequences of this turn away from the Guidelines as quasi-mandatory. The first is that the value of uniformity - i.e., of having similarly situated defendants receive substantially similar sentences -- will necessarily be sacrificed significantly. Discretion necessarily gives rise to disparity. Achieving uniformity was the main policy goal that caused Congress to adopt the Guidelines in the first place. Second, the Guidelines system as it has evolved has substantially increased the power of the prosecutor at the expense of the district court and the defense attorney. Up to now, if you wanted a judge to "downwardly depart," there was enormous pressure to do whatever you could to get a 5-k-1 letter from the prosecutor (certifying the defendant's cooperation). If a district judge has independent discretion to downwardly depart, the prosecutor is no longer in effective possession of the power to authorize a downward departure.

Congress has been quite active in responding to decisions in this area. It will be interesting to see what the Congressional reaction, if any, will be, and how Gall plays out in practice as the district judges start to exercise their once-and-future discretion in sentencing.

Bruce Hayden said...

I am all for reducing the power of prosecutors. Right now, overall, I think that they have too much of it, esp. compared with the other participants in the legal process. Combine this with the reality that they tend to have many more resources available to them than do most defendants, and the result is not anywhere near a level playing field.

Now, I have no doubt that most prosecutors truly believe in what they are doing. But my experience has been that they tend to get almost as jaded about human nature as do the police, assuming that defendants are guilty, at least of something, and proceed accordingly.

All of these decisions make logical sense, at least to me, who is somewhere between libertarian and conservative.

Simon said...

Richard, doesn't that go to my snark about Justice Ginsburg above? How can Justice Breyer maintain his claimed interest in stare decisis last term without revising his attitude towards Apprendi et al? This is a fight that he (and Kennedy, who's previously joined him in dissent in these cases, has he not?) have lost, and they've lost their two allies on them, Rehnquist and O'Connor. If he can't prevail in this line of cases, perhaps it better suits Breyer's present needs to wave the stare decisis flag, even if only in-chambers?

Eli Blake said...

I don't see that this was either a broad repudiation of the concept of mandatory sentencing nor an endorsement in general of giving judges latitude.

It was instead a very specific decision, primarily directed at legislatures which pass such mandatory sentencing guidelines, indicating that the guidelines must be uniform.

Without mentioning the 'r' word here, it is clear that for whatever reasons, the legislators who had passed these guidelines decided to consider that being involved with crack cocaine was much more serious than being involved with the powder, when in fact there is little difference between them chemically, in terms of their effect on you, or otherwise (and either one will kill you as dead as a doorknob if you overdose.)

dbp said...

I will have to disagree with eli on "difference between them chemically".

Even though the two cocaines are interchangeable fairly easily using organic solvents, acids and bases; they are very different in terms of their chemical behaviour:

The free base (crack cocaine) is normally smoked and results in a system wide effect, felt very quickly and strongly. So the drug has all the bang of Herion without the need for needles. Powdered cocaine (cocaine HCl) is soluable in water and can be therefore injected, but is usually snorted. This results in a slower and more mild effect.

Given that governments can and do ban use and possession of various drugs, there are plenty of differences between the two types to justify different penalties.

MadisonMan said...

I never knew that the base in freebase cocaine referred to pH. So I've learned something new today!

brylun said...

dbp, Should the criminal penalty depend upon how the drug is consumed? In other words, should powdered cocaine be penalized the same if injected as crack when smoked? Should the penalty depend upon the effect of the drug on the individual? I'm not clear on this argument.

dbp said...

I would not have any problem with different penalties for different administrations of the same drug. That is, have a harsher penalty for injecting cocaine HCl than for snorting it.

As a practical matter, there is something to be said for simplicity. Most people snort powdered cocaine and most smoke free base. It would fairly greatly complicate things to try and prove that a user was injecting, plus I have never heard of injecting as being at all common. So such a law would add fairness to the system but wouldn't have much practical use.

Daryl said...

Finally, an end to the mechanical, across-the-board sentencing guidelines with racist side effects, and back to the judicial discretion that unconsciously produces racist sentences.

It's a victory for America!

Gahrie said...

The reason why crack was treated more harshly than powder cocaine is the disparite effect each has on the community.

Like it or not, powder is a parlour drug, with minimal impact on the surrounding community and crack is a street drug that totally dominated the streets it is sold in. (note: It is usually poor minority communities being destroyed by the crack trade)

Trooper York said...

The Old Man: Ain't nobody from outside bringing down the property value. It's these folk, shootin' each other and sellin' that crack rock and shit.
Furious Styles: Well, how you think the crack rock gets into the country? We don't own any planes. We don't own no ships. We are not the people who are flyin' and floatin' that shit in here.
(Boys in the Hood, 1991)

The Exalted said...

gahrie is correct

though our columbian friends with disagree with the statement!

mc said...

I remember the drive to increase the penalties on crack through the articles in the MSM. They drove the notion that it was an insane new chemical and they achieved a bump in sales. Now they want us to forget that profile so they can drive the notion that it is no different than the other drug scourges. Whatever the remedy, the carnival barkers are the same.