Supreme Court to Hear Drug Sentencing Cases Today

The Supreme Court will hear oral arguments today in two drug cases, Gall v. United States and Kimbrough v. United States.

The Kimbrough case will bring the disparate penalties for crack and powder into full focus. U.S. News today has some numbers on the sentencing disparity. The Gall case will define the circumstances under which a judge can sentence below strict federal sentencing guidelines.

In a nutshell, Gall's guidelines were 30 to 37 months for minor participation of limited duration in an ecstasy conspiracy. The Judge deviated from the Guidelines to a sentence of probation, the Government appealed and the 6th Circuit reversed the trial court.

The question in Gall (pdf):


Whether, when determining the “reasonableness” of a district court sentence under United States v. Booker, 543 U.S. 220 (2005), it is appropriate to require district courts to justify a deviation from the United States Sentencing Guidelines with a finding of extraordinary circumstances.

Sentencing Law and Policy has been following the case.

Whether the Supreme Court uses Gall to broaden or restrict the scope of post-Booker discretion, the decision in Gall is likely to impact greatly how all district courts sentence after Booker. The decision will also likely frame future debates over Booker as a new Attorney General (and eventually a new administration) takes stock of federal sentencing realities.

Here's Kimbrough v. United States, the crack case, in a nutshell :

The case involves Derrick Kimbrough, a black veteran of the first Gulf War. He received a 15-year prison sentence from a federal judge for dealing crack and powder cocaine and possession of a firearm in Virginia. But sentencing guidelines required a much longer sentence.

An appeals court later ruled that judges can't impose sentences shorter than the guidelines just because they don't agree with the sentencing disparity for crack and powder cocaine offenses. But now the Supreme Court will decide if judges are bound by the sentencing requirements.

The questions in Kimbrough (pdf):

(1) In carrying out the mandate of §3553(a) to impose a sentence that is “sufficient but not greater than necessary” on a defendant, may a district court consider either the impact of the so-called “100:1 crack/powder ratio” implemented in the U.S. Sentencing Guidelines or the reports and recommendations of the U.S. Sentencing Commission in 1995, 1997, and 2002 regarding the ratio?

(2) In carrying out the mandate of §3553(a) to impose a sentence that is “sufficient
but not greater than necessary” upon a defendant, how is a district court to consider and balance the various factors spelled out in the statute, and in particular, subsection (a)(6), which addresses “the need to avoid unwarranted disparity among defendants with similar records who have been found guilty of similar conduct”?

I think it's a positive sign these cases were accepted for review by the Supreme Court. Hopefully, the decisions will afford some long overdue and much needed relief from the draconian sentences imposed under the Guidelines.

Keep in mind though that the Guidelines are but one part of the problem. The other is mandatory minimum sentences which only Congress can repeal.

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    free will (none / 0) (#1)
    by diogenes on Tue Oct 02, 2007 at 07:59:06 AM EST
    If crack is neither more socially pernicious nor more addicting than cocaine, then why doesn't everyone just use powder cocaine and not take the chance of longer prison sentences???

    Well, (none / 0) (#2)
    by syinco on Tue Oct 02, 2007 at 08:40:45 AM EST
    price could be a relevant factor.  

    But another could be that the length of sentences generally may not have a significant deterrent effect.  From what I've read (albeit not extensively), the likelihood of being caught and the swiftness of punishment can be much greater deterrent factors than is the actual punishment imposed.  I haven't read anything that shows that sentencing length is a significant deterrent factor (selective reading perhaps, though I'd be curious to read any such studies ...).  


    market forces (none / 0) (#6)
    by txpublicdefender on Tue Oct 02, 2007 at 12:03:23 PM EST
    Crack is cheaper, so there is a much bigger market for crack among the poor.

    Prediction (none / 0) (#10)
    by NMvoiceofreason on Wed Oct 03, 2007 at 12:40:08 AM EST
    Since the Supreme Court of the Republican Party does not represent, nor concern itself with the plight of the poor, it will uphold the reversal by the circuit, stating that "a finding of extraodinary circumstances is manditory", as required by statute.

    The court will also rely on the fact that all of these crimes involve different people, different areas, different circumstances, and that was all taken into account by the legislative branch when they removed discretion from the sentences.

    Seems "bad" liberal judges thought that people should be given a chance. No, the court says, some mistakes you just cant take back.

    Like Bush .vs. Gore.


    Blowback (none / 0) (#3)
    by Bob In Pacifica on Tue Oct 02, 2007 at 09:06:00 AM EST
    Historically, since WWII, wherever our military goes to war drugs come back.

    As we battle and lose in Afghanistan the farmers there are growing yet another bumper crop of opium which will show up in our neighborhoods. Victor Bout, the biggest heroin trafficker in the world these days, is also flying weapons in and out of Afghanistan for the Taliban and the US/UN. When pilots like Hasenfus flew weapons down for the contras they flew the OTHER white powder back to the US (apparently, that air trail is still being used by affiliates of the military/CIA). When Monzer al-Kassar was running the weapons shipping at the other end of Iran-contra scam for the reagan-BUSH Administration he was the biggest supplier of heroin to Europe and the US. The Guerini Gang, who helped the CIA contain and kill the Communists on the docks of Marseilles in post-WWII Europe also coincidentally were "The French Connection," supplying the US with heroin. Air America, the CIA airline flying weapons into the Golden Triangle in Southeast Asia during the Vietnam War, flew opium out.

    So we have a secret government whose private contractors ship drugs into our country while our public government punishes us for taking them. There was an essay, I think it may have been at Truthdig!, that described the economic need for Capital to keep a depressed class of Labor around to depress the general cost of Labor, and thus the need for drugs to depress the value of minority labor pools. So the more our government punishes the people who take the drugs that our secret government brings into our country, the less value the drug users have and the more profits acrue to the plutocracy.

    more socially pernicious? (none / 0) (#4)
    by diogenes on Tue Oct 02, 2007 at 10:05:36 AM EST
    Drug users I treat tell me that crack is much more likely to grab a hold of someone than powder is, with longer binges.  Science says that a drug absorbed by smoking (via the respiratory track) is more rapidly absorbed/more addictive than the same drug taken intranasally and absorbed through the nasal mucosa.  
    Maybe some of the posters here who have tried both drugs can say whether they really are the same or not.

    I can't speak from experience (none / 0) (#5)
    by syinco on Tue Oct 02, 2007 at 10:13:25 AM EST
    but the crack high may indeed be more intense than powder cocaine, resulting in increased consumption and longer binges - but whether that translates to more addictive, I don't know.  Once the drug and the high are gone, i.e. that binge is over, is the compulsion to later use/binge again then any different between the two forms?  Seems like a more relevant question when comparing addictive power ...

    I can (none / 0) (#7)
    by rageahol on Tue Oct 02, 2007 at 12:11:41 PM EST
    but my experience is probably a bit atypical. i personally dont like crack very much (i like powder cocaine more, but stimulants generally arent my bag anyway), it just gives me a headache. however, it is more intense initially, and blood plasma levels of drug drop precipitously shortly afterwards. whether that translates to "addictiveness" or not depends on your definition of the term, and i am, frankly, one who does not believe that the term "addiction" can be meaningfully defined in a way that gives it some sort of objective utility in the law - it's like obscenity in that way.

    utility (none / 0) (#8)
    by diogenes on Tue Oct 02, 2007 at 12:29:45 PM EST
    For the law I imagine that addiction means that you can't stop it when it gets you in trouble (stop work, promiscuity driving AIDS, crime to get money to get it, drug-associated illnesses, impulsivity or psychosis precipitated by the drug, etc).
    If people use a drug in control then it's much less of a legal issue, which is probably why nicotine has gotten a free pass for so long.  

    Where's the free pass.... (none / 0) (#9)
    by kdog on Tue Oct 02, 2007 at 12:48:50 PM EST
    for reefer?

    My view (none / 0) (#11)
    by Deconstructionist on Wed Oct 03, 2007 at 09:36:39 AM EST
      is that Gall presents a strong case for the Supreme Court finding the district court properly exercised its post-Booker discretion to vary from from the advisory guidelines bases on consideration of all the § 3553 (a) factors but Kimbrough (as much as I'd like to see a favorable ruling) much less so.

      In Gall the court's deciosn was based on careful consideration of the the particular facts of the case and the particular attributes of the defendant but in Kimbrough it was based on the (absolutely correct but...) opinion that the law itself is founded on mistaken premises that result in "wrong" results.