- The Washington Times - Wednesday, October 3, 2007

The Supreme Court wrestled yesterday with how to give judges discretion to impose shorter prison terms, including for some crack cocaine crimes, without abandoning the long-standing national goal of similar punishments for similar crimes.

In a pair of cases involving drug crimes, trial court judges handed down sentences that were shorter than those prescribed in the federal sentencing guidelines established by the U.S. Sentencing Commission.

Justice Stephen G. Breyer asked 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.”

One case involved a crack cocaine dealer who received a 15-year term when the guidelines called for 19-to-22 years in prison. The issue of crack cocaine punishments has racial overtones because crack is treated more harshly than powder cocaine, and the vast majority of crack defendants in federal court are black.

The law includes what critics call a 100-to-1 disparity: Trafficking in 5 grams of crack cocaine carries a mandatory five-year prison sentence, but it takes 500 grams of cocaine powder to warrant the same sentence.

When U.S. District Judge Raymond A. Jackson sentenced Derrick Kimbrough to 15 years for selling crack and powder cocaine, he called the higher range “ridiculous.” Kimbrough, who is black, is a veteran of the 1991 war with Iraq.

A federal appeals court threw out the lighter sentence, but Kimbrough’s attorney defended it to the justices.

“Judge Jackson got it right in this case,” said Michael Nachmanoff, the federal public defender in Alexandria. “He imposed a long sentence of 15 years.”

In arguing for the longer sentence — 19 to 22 years — Justice Department lawyer Michael Dreeben said judges must impose sentences that apply the 100-to-1 ratios. “For a judge to say ‘I think Congress and the guidelines are crazy’ is a textbook example of an unreasonable sentencing factor,” said Mr. Dreeben, a deputy solicitor general.

A companion case from Iowa involves a judge’s discretion to impose a more lenient sentence in a drug case, though Brian Gall pleaded guilty to conspiracy to distribute Ecstasy. In Gall’s case, the judge decided probation was sufficient punishment, even though the guidelines called for prison time.

A federal appeals court threw out that sentence as well.

The Bush administration supports the appeals court rulings, while civil rights and advocacy groups are backing the defendants.

The crack-powder disparity grew out of a 1986 law that was passed in response to violent crimes committed to get money to feed crack habits.

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.

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