Feature: Pressure Mounts on Congress As Supreme Court, Sentencing Commission Both Act to Cut Crack Cocaine Sentences

Both the US Supreme Court and the US Sentencing Commission acted this week to redress inequities in the sentencing of federal crack cocaine defendants, but changes in sentencing will be only marginal unless Congress acts to amend or undo the minimum sentences it has mandated for crack. Several bills to do so are pending, but Congress has yet to act on them.

Still, the harsh crack cocaine sentencing policies that have been in place for more than two decades took a one-two punch this week. On Monday, the Supreme Court upheld a sentencing decision by a federal district court judge to sentence a crack defendant to a sentence well below the federal sentencing guidelines. The following day, the Sentencing Commission announced that its earlier decision to scale down crack sentences would apply to nearly 20,000 federal inmates doing time on crack charges.

In the Supreme Court, the justices voted 7-2 to allow federal judges discretion to sentence offenders to prison terms well below the punishment range set by federal sentencing guidelines. The ruling came in a pair of cases, Kimbrough v. US and Gall v. US. The decisions offer important guidance to federal judges who have been wrestling with sentencing issues since the Supreme Court in 2005 held that federal sentencing guidelines were no longer mandatory, but only advisory.

In the first case, the trial judge sentenced convicted crack dealer Derrick Kimbrough to 10 years for his drug offense even though the guidelines called for a 14-to-17 1/2 year sentence. That judge called the guidelines "ridiculous" and "clearly inappropriate" when applied to Kimbrough. A federal appeals court in Richmond vacated the sentence, declaring that a sentence so far beneath the guidelines was unreasonable. But the Supreme Court disagreed.

"The district court properly homed in on the particular circumstances of Kimbrough's case and accorded weight to the Sentencing Commission's consistent and emphatic position that the crack/powder disparity is at odds with [the federal sentencing law]," wrote Justice Ruth Bader Ginsburg for the majority.

In her opinion in Kimbrough, Justice Ginsburg noted the ongoing controversy over the crack-powder cocaine sentencing disparity -- it takes 100 times as much powder cocaine as crack cocaine to trigger mandatory minimum sentences -- and wrote that judges could keep that in mind when sentencing crack defendants. "Given all this," she wrote, "it would not be an abuse of discretion for a district court to conclude when sentencing a particular defendant that the crack/powder disparity yields a sentence greater than necessary."

In the second case, Brian Gall had been sentenced to probation for his role in an ecstasy distribution ring while he was a college student. The judge in the case cited Gall's brief participation in the scheme and his law-abiding life since then in departing from the sentencing guidelines, which called for three years in prison. That sentence was vacated by a federal appeals court in St. Louis, which held that Gall's punishment was unreasonably light. The sentencing judge must show extraordinary circumstances to justify such a sentence, the appeals court held. That's not necessary, the Supreme Court held.

"An appellate court may take the degree of variance into account and consider the extent of deviation from the guidelines, but it may not require 'extraordinary' circumstances or employ a rigid mathematical formula," wrote Justice John Paul Stevens for the majority.

The appeals court "failed to give due deference to the district court's reasoned and reasonable sentencing decision," Stevens wrote.

Taken together, the two Monday decision create a new, tougher standard for appeals courts to overturn judges' sentencing decisions. Now, the appeals court must find that a particular sentence is unreasonable and that the judge abused his or her discretion in evaluating the factors that led to that sentence.

"The cases are the clearest and strongest rulings to date that federal trial judges can exercise their discretion to take their sentencing responsibilities seriously again," said Carmen Hernandez, president of the National Association of Criminal Defense lawyers (NACDL). "There is no doubt left that an inappropriate guidelines calculation is open to challenge -- individually, as imposed in a particular case, and categorically, where the Commission has not followed Congress' command that a sentence be 'sufficient, but not greater than necessary.'"

"At a time of heightened public awareness regarding excessive penalties and disparate treatment within the justice system, today's ruling affirming judges' sentencing discretion is critical," said Marc Mauer, executive director of The Sentencing Project. "Harsh mandatory sentences, particularly those for offenses involving crack cocaine, have created unjust racial disparity and excessive punishment for low-level offenses."

"This decision makes it clear that federal judges have a right to vote their conscience and ignore sentencing guidelines that are racist, unfair or cruel," said Bill Piper, director of national affairs for the Drug Policy Alliance. "The ruling will reduce racial disparities in the criminal justice system and hopefully send a message to federal prosecutors that they should stop wasting resources on nonviolent, low-level crack cocaine offenders and focus on taking down organized crime syndicates instead."

On Tuesday, it was the Sentencing Commission's turn to take a whack at crack sentences. In November, the commission amended the crack sentencing guidelines to reduce average sentences from 10 years and one month to eight years and 10 months, but a key question for activists, reformers, and prisoners and their families was whether the change in the guidelines would be retroactive. On Tuesday, the commission announced they would be.

"Retroactivity of the crack cocaine amendment will become effective on March 3, 2008," the commission said. "Not every crack cocaine offender will be eligible for a lower sentence under the decision. A federal sentencing judge will make the final determination of whether an offender is eligible for a lower sentence and how much that sentence should be lowered. That determination will be made only after consideration of many factors, including the Commission's direction to consider whether lowering the offender's sentence would pose a danger to public safety. In addition, the overall impact is anticipated to occur incrementally over approximately 30 years, due to the limited nature of the guideline amendment and the fact that many crack cocaine offenders will still be required under federal law to serve mandatory five- or ten-year sentences because of the amount of crack involved in their offense."

"At its core, this question is one of fairness," said one commission member, Judge William K. Sessions III of the United States District Court in Vermont. "This is an historic day. This system of justice is, and must always be, colorblind."

With retroactivity, some 19,500 currently imprisoned crack offenders will be able to apply for sentence reductions. According to the commission, eligible prisoners can expect an average sentence reduction of 17%, and some 3,800 prisoners will be eligible for but not assured of release by the end of 2008. But, the commission emphasized, reductions will ultimately be up to sentencing judges, who will have wide discretion in deciding who will be granted leniency.

Senator Edward Kennedy (D-MA), chairman of the Health, Education, Labor and Pensions Committee, said he was pleased with the commission's action. "Nearly 20,000 nonviolent, low-level drug offenders will be eligible for a reduction in the excessive prison terms they received in the past because of the unacceptable disparity in the sentencing guidelines between crack cocaine and powder cocaine offenses," Kennedy said. "Those who break the law deserve to be punished, but our system says that punishment must be proportionate and fair. The current sentencing disparity between crack and powder cocaine is neither."

"The Sentencing Commission made the tough but fair decision to remedy injustice, showing courage and leadership in applying the guideline retroactively. Clearly, justice should not turn on the date an individual is sentenced," said Julie Stewart, president and founder of Families Against Mandatory Minimums. "Retroactivity of the crack guideline not only affects the lives of nearly 20,000 individuals in prison but that of thousands more -- mothers, fathers, daughters and sons -- who anxiously wait for them to return home," said Stewart.

But while both the Supreme Court and the Sentencing Commission have acted to reduce the harsh and disparate sentences meted out to crack offenders, congressionally-imposed mandatory minimum sentences for such offenses mean that these actions will only have a marginal impact on the length of sentences and the federal prison population. Only Congress can adjust those mandatory minimum sentences.

As one commission member, Judge Ruben Castillo of the US District Court for the Northern District of Illinois, noted, the commission has recommended since 1995 that Congress act to redress the sentencing disparity. "No one has come before us to justify the 100-to-1 ratio," Judge Castillo said, referring to the provision of federal law that imposes the same 10-year minimum sentence for possessing 50 grams of crack and for possessing 5,000 grams of powder cocaine.

Four bills have been introduced in Congress to reduce the crack/powder cocaine disparity -- two by Democrats and two by Republicans. Two of the bills, introduced by Republican Senators Jeff Sessions from Alabama and Orrin Hatch from Utah, reduce the disparity but do not eliminate it. The third bill, introduced by Democratic Senator Joe Biden from Delaware, would completely eliminate the disparity. The Senate is expected to have hearings on the legislation in February. Democratic Representative Charles Rangel from New York has introduced the only bill on the House side that would eliminate the disparity by equalizing the sentences for crack and powder cocaine at the current level of powder. The Senate is set to have hearings on the issue early next year. No hearings have been scheduled in the House, and supporters of eliminating the disparity say House Democrats are ignoring the issue.

"The biggest obstacle to eliminating the racist crack/powder disparity is not the Bush Administration or law enforcement, it's the House Democratic leadership," said Piper, who noted that House Democratic leaders had reportedly barred committees from dealing with the issue. "While the Supreme Court, the Sentencing Commission and Senate Democrats and Republicans push forward with reform, House Democrats won't even have hearings on the issue. Their silence on this issue is sending a signal to communities across the country that they don't care about reducing racial disparities."