FINAL UPDATE 1:34 p.m.

The Supreme Court on Monday gave federal judges new authority to set sentences for crack cocaine crimes below the range of punishment set by federal guidelines — a major restoration of flexibility for trial judges in drug cases. It ruled 7-2 that the federal guidelines on sentencing for cocaine violations are advisory only, rejecting a lower court ruling that they are effectively mandatory. Judges must consider the Guideline range for a cocaine violation, the Court said, but may conclude that they are too harsh and may sentence below the range by considering the wide disparity between the recommended punishment for crack cocaine and cocaine in powder form. Justice Ruth Bader Ginsburg wrote the decision in Kimbrough v. U.S. (06-6330).

The ruling validates the view of the U.S. Sentencing Commission that the 100-to-1 crack v. powder cocaine disparity may exaggerate the seriousness of crack crimes. The Court decision Monday rejected the Bush Administration argument that, because Congress had written the ratio into federal law, federal judges could not depart from it. The law, the Court concluded, only sets maximum and minimum sentences. “The statute says nothing about appropriate sentences within these brackets, and this Court declines to read any implicit directive into the congressional silence,” it declared.

The decision does not mean that crack cocaine crimes must be punished the same as powder cocaine crimes, but it does allow trial judges to disagree with the Guidelines’ much heavier recommendations for punishment of crack crimes. The decision also does not disturb the 100-to-1 ratio as it is spelled out in federal law (as opposed to the Guidelines); that ratio still applies at the minimum level of quantities of drugs involved in a given crime. Some 70 percent of those convicted of crack cocaines get the minimum sentence, many as a result of plea bargains. Above that level, though, the new ruling gives trial judges considerable range of choice, case by case.

Ruling in a second Guidelines case, Gall v. U.S. (06-7949), the Court — also by a 7-2 vote — cleared the way for judges to impose sentences below the specified range and still have such punishment regarded as “reasonable.” The Justices, in an opinion written by Justice John Paul Stevens, told federal appeals courts to use a “deferential abuse-of-discretion standard” even when a trial sets sets a punishment below the range. Chief Justice John G. Roberts, Jr., announced that opinion in Stevens’ absence.

The Gall decision overturned a ruling by the Eighth Circuit Court that a below-Guidelines sentence would be reasonable only if justified by “extraordinary circumstances.” It was not for the Circuit Court to decide de novo the issue of whether a variation from a Guideline range was justified, it said.

In the last of three rulings on Monday, the Court decided unanimously that one does not “use” a gun, for purposes of imposing a mandatory five-year federal sentence, if the person receives the gun in a trade for drugs. Justice David H. Souter wrote the opinion in Watson v. U.S. (06-571). “The Government may say that a person ‘uses’ a firearm simply by receiving it in a barter transaction, but no one else would. A boy who trades an apple to get a granola bar is sensibly said to use the apple, but one would never guess which way this commerce actually flowed from hearing that the boy used the granola,” Souter wrote.

The Kimbrough ruling on punishing crack cocaine offenses marks a major shift in the debate that has raged for 21 years over the much more severe sentencing required for those whose crimes involved crack cocaine. The Sentencing Commission for years asked Congress to ease the 100-to-1 ratio, and usually failed, but only recently gained some flexibility to vary the Guideline range outside that ratio. The disparity in punishment has often been challenged as racially oriented, because black offenders more often are involved in possessing or distributing crack than powder. Justice Ginsburg noted that 85 percent of those punished for crack crimes in federal court are black.

The 100-to-1 ratio is keyed to the quantity of the cocaine involved in the crime. As Justice Ginsburg explained it in practical effect: “a dealer in crack cocaine was subject to the same sentence range as a dealer in 100 times more powder cocaine.” One effect of this, Ginsburg noted, is “that a major supplier of powder cocaine may receive a shorter sentence than a low-level dealer who buys powder from the supplier but then converts it to crack.” The 100-to-1 Guidelines disparity has been somewhat relaxed as of Nov. 1 by the Sentencing Commission. The Commission is now pondering whether to make the reduced range retroactive. The change, allowed by Congress, would generally result in crack sentences between two and five times longer than for equal amounts of powder, rather than 100 times longer. With Monday’s decision, even that reduction is not binding on federal judges.

The Court’s ruling, besides shoring up the Sentencing Commission’s criticism of crack punishment, also bolsters federal trial judges who in recent months have been experimenting with easing up on crack cocaine sentences. Whether this was a valid use of their authority, because it might and does result in below-Guidelines sentences, was the issue the Court decided in Kimbrough.

The Gall case also involved a question of below-Guidelines sentencing, but was broader than the cocaine controversy. The issue there was whether any federal sentence that fell below a Guideline floor was valid if it was not supported by “extraordinary circumstances.”

The vote supporting the final outcome was the same in both sentencing cases: Chief Justice Roberts and Justices Ginsburg, Stevens, Stephen G. Breyer, Anthony M. Kennedy, Antonin Scalia and David H. Souter in the majority, Justices Samuel A. Alito, Jr., and Clarence Thomas in dissent. Scalia wrote a separate concurring opinion in Kimbrough, and he and Souter wrote separate concurring opinions in Gall.

In the case of Derrick Kimbrough of Norfolk, Va., a federal judge found the sentence dictated by the Guideline range and the crack-powder disparity to be “ridiculous,” and imposed a sentence of 15 years, which was 4 1/2 years below the bottom of the range for his crime — conspiracy with intent to distribute and possession with intent to distribute crack. The Court said on Monday that the judge’s sentence “should survive appellate inspection.”

In the case of Brian Michael Gall, a young man who dealt the illegal drug “ecstasy” while in college in Iowa but went straight after giving up drugs and going into business in Arizona and Colorado, gave himself up and pleaded guilty to conspiracy to distribute the drug. The Guideline range for his crime was 30 to 37 months in prison, but the federal judge gave him 36 months on probation, largely based on his more recent behavior. The Court said that it found this sentence to be “reasoned and reasonable,” and thus reversed the Eighth Circuit ruling that it was not.

The Court issued its three rulings on the merits after issuing orders for the day. Among cases denied review was an appeal challenging the validity of a federal budget bill that passed the House and Senate in different forms (Public Citizen v. Clerk, District Court, 07-141) — a challenge rejected in a lower court; an appeal by a Virginia city government urging the Court to rule that a government agency must take affirmative stgeps to publicize the reasons for firing an employee before that worker has a right to a hearing to clear his name (Newport News v. Sciolito, 07-159), and an appeal by a California prison warden urging the Court to impose a tough standard of proof for state prison inmates claiming to be innocent of their crimes and seeking an evidentiary hearing on the claim in federal court (Marshall v. Henry, 07-199).

The Court’s next chance to issue orders granting and denying new cases will be on Jan. 7 after a holiday recess. The next opportunity for decisions on the merits is Jan. 8.

Posted in Watson v. US, Kimbrough v. US, Gall v. US, Uncategorized