Supreme Court strikes down mandatory sentences for crack cocaine

The Supreme Court, today, struck down mandatory sentencing guidelines for crack cocaine. The Washington Post reports:

The Supreme Court decided today that judges may impose lighter sentences for crack cocaine, adding its voice to a racially sensitive debate over federal guidelines that call for tougher penalties for crack than for powder cocaine.

The crack cocaine decision was one of two today in which the justices, with identical seven-member majorities, reinforced their view that federal sentencing guidelines are advisory rather than mandatory, and that judges may deviate from them so long as their decisions are reasonable.

In the crack case, Justice Ruth Bader Ginsburg said it was reasonable for a federal judge in Virginia to impose a lower sentence than one prescribed by the guidelines because of his disagreement with the rule that imposed the same sentence for a crack dealer as for someone selling 100 times as much powder cocaine. The U.S. Court of Appeals for the Fourth Circuit said the law did not allow the judge to make such a determination.

Of course, there was a clear racial component to the sentencing disparity, as crack is most often used by blacks, and powder cocaine by whites. On that level, this is clearly a huge step in the right direction. The victory is, however, complicated. I’m no lawyer, but here are some of the best commentaries, thus far:

Bean, at Lawyers, Gun$ and Money:

The decision today was in a crack sentencing case; it provides hope that more and more judges will be able to show their disdain for the crack/cocaine disparity. But as Hogan and I both noted in comments to Scott’s post, Gall and Kimbrough should not be understood as paving the way to the end of the war on (some classes of people who use some) drugs.

Baylor Law Prof Mark W. Osler offers his winner and losers, at ScotusBlog:

While the result in Kimbrough is certainly encouraging to many judges, practitioners, and academics, the opinion is more complex than it might at first appear. In short, Kimbrough seems to be good news for fans of the parsimony provision of 18 U.S.C. § 3553(a), bad news for fans of judicial transparency, and an announcement that the conflict over a remedy in Booker may not be resolved.

Ohio State Law Prof Douglas A. Berman gives a Justice-by-Justice review, at Sentencing, Law and Policy:

There is so much to say about the substance of the rulings in Gall and Kimbrough (basics here), and I will likely need a few days to unpack all the important particulars.  Here I want to do a quick Justice-by-Justice review what we see in Gall and Kimbrough, in part because I think it could foreshadow the Court’s work on any number of future sentencing issues.

Read the decisions, in pdf:

Kimbraugh v. United States.

Gall v. United States.


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  1. of incarceration in this country something has to start changing. My vote would be to scrap the war on drugs as a pointless waste of time but now that prisons are for profit there is yet another lobby group that wouldn’t like that.

    It is so easy to run on a “law and order” platform and yet it has no real meaning. Who is “for” crime?

  2. Thanks for this, Turk – what a comprehensive way to look at this decision.

    Fact is, we are going to need to understand the decision, and the usual trepidation (laziness, heh) I feel at tackling this kind of reading is much lightened by your work in gathering so many facets of it together.

    I suggest if anyone else has read something interesting on this case, please post it in this thread.

    That way when we need to have info. on the case it’s all in one place.

  3. … I did a minimal bit of searching, nothing comprehensive.

    Something did strike me, though, when surfing the diversosphere.

    Here’s just a few examples I collected.

    At ColorLines, the national newsmagazine on race and politics the top story came out, of course, before this new decision:

    Killed by the Cops by Jeff Kelly Lowenstein]

    This summer ColorLines and The Chicago Reporter conducted a joint national investigation of fatal police shootings in America’s 10 largest cities, each of which had more than 1 million people in 2000. Several striking findings emerged.

    To begin, African Americans were overrepresented among police shooting victims in every city the publications investigated.

    The contrast was particularly noticeable in New York, San Diego and Las Vegas. In each of these cities, the percentage of black people killed by police was at least double that of their share of the city’s total population.

    “There is a crisis of perception where African American males and females take their lives in their hands just walking out the door,” said Delores Jones-Brown, interim director of the Center on Race, Crime and Justice at John Jay College in New York.

    At BlackPerspective’s their top story is on another legal case,  the Michael Vick conviction that came out today:

    Mike Vick Sentenced to 23 months. Read about it from USA Today, below

    This post is to personal for me to quote any of it, but I have to say elle, phd does an astonishing job of writing about blogger’s block beautifully and insightfully.

    I read a few more, but what I realized is that the kind of injustices to the communities of color made common by the crack/cocaine sentencing guidelines is just one of many inequities running rampant in our country.  So I think this kind of context information is also important in understanding the effect of this decision from that perspective. (Hope that makes sense!)

    • Viet71 on December 11, 2007 at 01:34

    The Court did not decide these cases based on the Constitution (i.e., the Equal Protection Clause or the Due Process Clause of the 14th Amendment).

    The Court simply interpreted federal law, for better or worse.

    There’s less here than meets the eye.  

  4. The fight about the crack/cocaine disparity has been raging for almost 2 decades, and finally, finally, finally the Big 9 open the door for judges to do the right thing.  I am pleased.  But what about the thousands (tens of thousands?) of people presently incarcerated on the higher guidelines for crack because their judges and their courts of appeals felt they had no discretion to depart?  

    In all of those cases, the cases of presently incarcerated defendants, we of the defense bar are now going to have to slog through the files to see what, if anything can now be done.  And we’re going to have to deal with the usual, disgusting arguments that this decision should not have retroactive application.  Sh*t.  Free the prisoners! May justice prevail!

  5. I saw this on Drug Policy Alliance:

    The U.S. Sentencing Commission partially reduced recommended sentences for crack cocaine offenses earlier this year. The Commission is expected to vote tomorrow (Dec. 11th) on whether or not to apply these sentencing reductions retroactively. Doing so could save taxpayers a billion dollars and make 19,500 federal prisoners eligible for early release over the next several decades.

    Ultimately, only Congress can completely eliminate the crack/powder disparity. Four reform bills have been introduced in Congress (two by Democrats and two by Republicans). The U.S. Senate is expected to have hearings on the legislation in February. Unfortunately, no hearings on this issue have been scheduled in the House, and the House reform bill, Rep. Rangel’s (D-NY) Crack-Cocaine Equitable Sentencing Act of 2007 (H.R. 460), has stalled.

    The DPA asks that we Contact Congress to support the Crack-Cocaine Equitable Sentencing Act of 2007 (H.R. 460).  (use the handy-dandy Contact widget in the right column)

    • dkmich on December 11, 2007 at 12:06

    This whole war on drugs things is a farce.  First, we spend billions and billions creating more and more felons.  Then we spend millions and millions on prisoner re-entry and re-employment programs because nobody will wants to hire a felon.  This country is so fucking nuts.  

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