December 11, 2007 in Nation/World

Judges gain leeway in cocaine cases

Michael Doyle McClatchy

At a glance

Related action

» Even before Monday’s ruling, the sentencing guidelines had been crumbling under pressure.

» Earlier this year, Congress allowed new guidelines to take effect that will reduce the disparity between sentences for crack and powder cocaine.

» Today, in a potentially more controversial move, the U.S. Sentencing Commission will consider whether to make those more lenient guidelines retroactive for those in prison.

WASHINGTON – The Supreme Court on Monday granted judges more discretion to be lenient with drug defendants, further chipping away at the harsh sentences once imposed for crack cocaine.

In a closely watched 7-2 ruling, the court ruled that trial judges can impose less severe punishment than federal sentencing guidelines call for. Increasingly, trial judges and lawmakers contend that crack cocaine sentencing guidelines are draconian and racially biased because most convicted crack dealers are black.

“It would not be an abuse of discretion for a District Court to conclude when sentencing a particular defendant that the crack/powder (cocaine) disparity yields a sentence greater than necessary,” Justice Ruth Bader Ginsburg wrote for the majority.

The decision involving Derrick Kimbrough, a convicted Virginia drug dealer and Persian Gulf War veteran, doesn’t eliminate all sentencing distinctions between powder and crack cocaine. Rather, the ruling gives trial judges more leeway when they disagree with federal sentencing guidelines.

Spooked by stories of crack’s super-potency, Congress set much stricter penalties for crack than for powder cocaine two decades ago. The “100 to 1” sentencing disparity means that possessing 5 grams of crack brings the same five-year prison term as possessing 500 grams of powder cocaine.

The ruling in Kimbrough v. United States means that judges can give shorter sentences without being second-guessed. Three years ago, the Supreme Court made all federal sentencing guidelines advisory rather than mandatory. That decision, though, left unclear how much discretion judges retained to deviate from recommended sentences.

“The court is free to make its own reasonable (decision) and to reject, after due consideration, the advice of the guidelines,” Ginsburg wrote.

The results could be sweeping, starting with Kimbrough himself.

He pleaded guilty to possessing firearms, 56 grams of crack and 92 grams of powder cocaine. The federal sentencing guidelines called for 228 to 270 months in prison. Instead, a federal judge sentenced him to 180 months.

Some 25,000 defendants were sentenced in federal court on crack cocaine charges in the past five years, according to the U.S. Sentencing Commission. Eighty-one percent of those sentenced last year on federal crack charges were, like Kimbrough, black.

By contrast, blacks accounted for 27 percent of those sentenced on powder cocaine charges last year. On average, the crack cocaine defendants received sentences 50 percent longer than those that the powder cocaine defendants got.

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