Thoughts, essays, and writings on Liberty. Written by the heirs of Patrick Henry.

“I weep for the liberty of my country when I see at this early day of its “successful experiment” that corruption has been imputed to many members of the House of Representatives, and the rights of the people have been bartered for promises of office.”     Andrew Jackson

December 10, 2007

Two Victories on the Mandatory Minimums Front

by Stephen Littau

WASHINGTON – The Supreme Court on Monday said judges may impose shorter prison terms for crack cocaine crimes, enhancing judicial discretion to reduce the disparity between sentences for crack and cocaine powder.

By a 7-2 vote, the court said that a 15-year sentence given to Derrick Kimbrough, a veteran of the 1991 war with Iraq, was acceptable, even though federal sentencing guidelines called for Kimbrough to receive 19 to 22 years.

In a separate sentencing case that did not involve crack cocaine, the court also ruled in favor of judicial discretion to impose more lenient sentences than federal guidelines recommend.

The challenges to criminal sentences center on a judge’s discretion to impose a shorter sentence than is called for in guidelines established by the U.S. Sentencing Commission, at Congress’ direction. The guidelines were adopted in the mid-1980s to help produce uniform punishments for similar crimes.

The cases are the result of a decision three years ago in which the justices ruled that judges need not strictly follow the sentencing guidelines. Instead, appellate courts would review sentences for reasonableness, although the court has since struggled to define what it meant by that term.

Kimbrough’s case did not present the justices with the ultimate question of the fairness of the disparity in crack and powder cocaine sentences.

In a time when 5-4 Supreme Court rulings are the norm, this 7-2 ruling is a strong signal that the courts should have more discretion when sentencing individuals. Some may call this ruling “judicial activism” and one could probably make that case. But assuming that this is judicial activism, I would argue that the courts are constitutionally held to an even higher duty to make sure the punishment fits the crime; to do justice. When the prescribed punishment violates common sense, then judicial activism is completely appropriate (see my posts about Genarlow Wilson here, here, and here). We cannot reasonably expect the courts to be reasonable if state and federal laws tie the hands of the judges with unreasonable mandatory minimum sentencing laws.

The article continues:

Congress wrote the harsher treatment for crack into a law that sets a mandatory minimum five-year prison sentence for trafficking in 5 grams of crack cocaine or 100 times as much cocaine powder. The law also sets maximum terms.

Seventy percent of crack defendants are given the mandatory prison terms.

Kimbrough is among the remaining 30 percent who, under the guidelines, get even more time in prison because they are convicted of trafficking in more than the amount of crack that triggers the minimum sentences.

Justice Ruth Bader Ginsburg, writing for the majority, said, “A reviewing court could not rationally conclude that it was an abuse of discretion” to cut four years off the guidelines-recommended sentence for Kimbrough.

Justices Samuel Alito and Clarence Thomas dissented.

The Sentencing Commission recently changed the guidelines to reduce the disparity in prison time for the two crimes. New guidelines took effect Nov. 1 after Congress took no action to overturn the change.
The commission is scheduled to vote Tuesday afternoon on the retroactive application of the crack cocaine guideline amendment that went into effect on Nov. 1. The commission has estimated 19,500 inmates could apply for sentence reductions under the proposal.

I certainly hope these 19,500 inmates do just that; these 19,500 spots would serve us all better if they were taken by violent criminals who are a genuine threat to the life, liberty, and property of us all.

The Supreme Court also made a ruling on another mandatory minimums case:

In the other case, the court, also by a 7-2 vote, upheld a sentence of probation for Brian Gall for his role in a conspiracy to sell 10,000 pills of ecstasy. U.S. District Judge Robert Pratt of Des Moines, Iowa, determined that Gall had voluntarily quit selling drugs several years before he was implicated, stopped drinking, graduated from college and built a successful business. The guidelines said Gall should have been sent to prison for 30 to 37 months.

The sentence was reasonable, Justice John Paul Stevens said in his majority opinion. Alito and Thomas again dissented.

The cases are Kimbrough v. U.S., 06-6330, and Gall v. U.S., 06-7949.

Another case of judicial activism? The court was once again correct to choose probation over prison. Mr. Gall had already taken steps to be a productive, law abiding citizen. What good would come of putting an already rehabilitated individual into the prison system? These are only questions which can be answered by a judge or a jury; not an arbitrary one-size-fits-all mandatory minimum sentencing law.

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