The Washington Post
Wednesday 12 December 2007
The U.S. Sentencing Commission voted unanimously yesterday to give federal inmates incarcerated for crack cocaine offenses a chance to reduce their sentences, paving the way for about 3,800 prisoners to petition for an early release in the next year.
Yesterday's vote was a controversial sequel to the panel's decision this spring to change the guidelines it issues to judges, reducing the sentences that are handed out to people convicted of crack cocaine offenses. That decision, which went into effect Nov. 1, applied to future cases. Yesterday's vote made that decision retroactive, covering people already imprisoned.
According to an analysis by the commission, 19,500 inmates will be eligible to petition the courts to reduce their sentences. The largest number of those - more than 1,400 - were convicted in the U.S. District Court for the Eastern District of Virginia, covering Northern Virginia and the Richmond and Tidewater areas. About 280 inmates convicted in federal courts in Maryland will be eligible, as well as almost 270 prisoners convicted and sentenced in the District.
"Crack cocaine sentences have generally been excessive and unwarranted," said William K. Sessions III, a vice chair of the commission. He went on to quote Judge Reggie B. Walton, who appeared before the commission last month: "I just don't see how it's fair that someone sentenced on October 30th gets a certain sentence when someone sentenced on November 1st gets another."
The commission's vote came a day after the Supreme Court decided that federal district judges are not bound by commission guidelines that created a large disparity in punishments meted out to crack and powder cocaine offenders. The 7 to 2 decision cut across the court's typical ideological divide.
The commission's decisions are its attempts to narrow that gap. That disparity, first written into federal law by Congress in 1986, has long been criticized by some jurists and civil rights advocates because it meant crack cocaine offenders, who tend to be African American, often get longer prison sentences than those convicted of crimes involving powder cocaine, who more often are white.
The Bush administration strongly opposed the commission's vote to make its earlier decision retroactive, arguing that inmates would clog the courts with appeals for reductions.
"Making the revised guidelines for crack cocaine retroactive will make thousands of dangerous prisoners, many of them violent gang members, eligible for immediate release," Craig S. Morford, acting deputy attorney general, said in a statement released by the Justice Department. "These offenders are among the most serious and violent offenders in the federal system."
In March, crack cocaine offenders will be eligible to petition the courts that originally sentenced them to have their prison time reduced. Many could be denied by judges based on certain factors, such as whether they represent a public danger or were convicted for other crimes.
"The profound reason why we should get this retroactive application is it is the right thing to do," Vice Chair Ruben Castillo said minutes before the vote. "We should constantly strive to make sure that race plays no role in the day-to-day operation of the criminal justice system."
Commissioner Beryl A. Howell called the vote "one of the most important decisions the commission has made" during her three years of service. She noted that the panel contributed to the disparity by establishing guidelines that were even more severe than what Congress allowed for in the Anti-Drug Abuse Act of 1986.
As part of a tough sentencing equation, the bipartisan commission mandated that conviction for possessing or distributing five grams of crack cocaine would draw the same mandatory minimum prison sentence of five years as a conviction for possessing or selling 500 grams of powder cocaine, and 10 year for 50 grams of crack or 5,000 grams of powder. In 1995 the commission asked Congress to treat the drugs equally for sentencing purposes, but the request was rejected.
Howell said the vote, which could reduce sentences by an average of 27 months for inmates sentenced under the old guidelines, is small but important. "It is significant because it's the first correct movement in over . . . 20 years. Though modest, I think it shows the commission is trying to change the contribution it has made to the disparity."
But the change is not a "get out of jail free" card, said commissioner Michael E. Horowitz. "Not everybody is automatically entitled to this reduction," he said, explaining that federal judges, many of whom supported making the guidelines retroactive, will decide cases individually on merit.
Sessions said the commission decided to delay retroaction until March 3 so that courts can prepare for an onslaught of inmate motions. The Bureau of Prisons will be asked to notify its facilities, and administrators are to notify inmates of their eligibility.
Echoing a majority of commissioners, Castillo said the vote is a signal to Congress "to make a comprehensive change" in the drug laws.
In the audience, activists from groups such as Families Against Mandatory Minimums joined the family members of inmates in applauding the vote.
Karen Garrison, a D.C. mother whose twin sons, both Howard University graduates whose convictions were based on witness testimony, said: "This is the first time I have really been excited about anything." Lamont Garrison's 19-year sentence could be reduced by four years and Lawrence's sentence could be reduced by three.
Secoya Jenkins, 16, of Orange, N.J., smiled broadly and said, "I'm excited because my mom is coming home." Nerika Jenkins, 35, also convicted because of witness testimony, is serving a 19-year sentence.
"It is a remarkable day," said Marc Mauer, executive director of the Sentencing Project. "While this is only the federal system and its a small change, it's going to resonate around the world."
Justices Restore Judges’ Control Over Sentencing
By Linda Greenhouse
The New York Times
Tuesday 11 December 2007
Washington - The Supreme Court on Monday restored federal judges to their traditional central role in criminal sentencing.
In two decisions, the court said federal district judges had broad discretion to impose what they think are reasonable sentences, even if federal guidelines call for different sentences.
One decision was particularly emphatic in saying judges are free to disagree with guidelines that call for much longer sentences for offenses involving crack cocaine than for crimes involving an equivalent amount of cocaine in powdered form.
Both cases, each decided by the same 7-to-2 alignment, chided federal appeals courts for failing to give district judges sufficient leeway. The appeals court had in each case overturned a sentence that was lower than that provided by the guidelines. The two dissenters were Justices Clarence Thomas and Samuel A. Alito Jr.
Taken together, the decisions reflected the remarkable trajectory the court has traveled in the seven years since it overturned a New Jersey hate-crime statute on the ground that the law gave judges an unconstitutional degree of authority to make the crucial factual determinations that added a hate-crime "enhancement" to an ordinary criminal sentence.
Along with their diminished function under the Sentencing Reform Act of 1984, which set up the federal sentencing guidelines system, federal judges appeared to have been all but ejected from their role at the heart of criminal sentencing.
Judges still may not impose sentences above the range written into law by Congress or state legislatures. But the decision on Monday gives judges broad discretion to impose sentences higher or lower than the guidelines, which are not statutes and are issued by the United States Sentencing Commission.
The two decisions answered questions left hanging in 2005, when the court ruled in United States v. Booker that the federal sentencing guidelines could be constitutional only if "advisory" rather than mandatory. Appeals courts were to review sentences for "reasonableness," the court said then. But the court did not say what it meant by either "advisory" or "reasonableness."
Last June, in Rita v. United States, the court ruled that appeals courts could choose to presume that sentences within the guidelines range were reasonable, but that such a presumption was not binding. But that opinion was quite opaque and said relatively little about the trial judge’s role.
It is now clear that while judges should consult the guidelines, they are just one factor among others and do not carry any special weight. It is also clear that an appeals court must have a very good reason of its own to displace the trial judge’s judgment.
"The guidelines should be the starting point and the initial benchmark," Justice John Paul Stevens said in one of the decisions on Monday, Gall v. United States, No. 06-7949.
But Justice Stevens went on to say that the guidelines were just one factor in the "individualized assessment" that a judge must make in every case. The judge "may not presume that the guidelines range is reasonable," he said.
In that case, Brian M. Gall, who had briefly been involved in an Ecstasy distribution ring while a college student, received a sentence of three years’ probation rather than 30 to 36 months in prison called for by the guidelines.
The United States Court of Appeals for the Eighth Circuit, in St. Louis, ruled that such an "extraordinary" variance from the guidelines range required an equivalently extraordinary justification.
That judgment was erroneous, Justice Stevens said, in failing to give "due deference" to the district judge’s "reasoned and reasonable decision." He added that "if the sentence is outside the guidelines range, the court may not apply a presumption of unreasonableness."
Nor, he continued, should a sentence be overturned just because the appeals court "might reasonably have concluded that a different sentence was appropriate."
The defendant in the crack cocaine case, Derrick Kimbrough, received 15 years instead of 19 to 22 for several cocaine and gun-related offenses. The sentence was the lowest possible, given the statutory mandatory minimum sentences.
The trial judge said the higher guidelines term would be inappropriate for Mr. Kimbrough, a Marine veteran of the Persian Gulf war with an honorable discharge. The judge also disagreed with the relative treatment of crack and powdered cocaine, a disparity that he said led to "disproportionate and unjust" results.
The United States Court of Appeals for the Fourth Circuit, in Richmond, Va., overturned the sentence on the ground that it was "per se unreasonable" for a judge to depart from the guidelines "based on a disagreement with the sentencing disparity for crack and powder cocaine offenses."
The Supreme Court took the unusual step of reinstating the original lower sentences, rather than simply instructing the appeals courts to reconsider the cases under an appropriately deferential standard of review.
Prof. Douglas A. Berman of the Moritz College of Law at Ohio State University, an expert on sentencing, called the decisions a "stinging rebuke of circuit court micromanagement of district court discretion."
The decision in the crack cocaine case, Kimbrough v. United States, No. 06-6330, was particularly pointed in this regard. In her majority opinion, Justice Ruth Bader Ginsburg said that ordinarily, "closer review may be in order" when a judge’s sentence is based on a policy disagreement with the guidelines.
But she went on to say that this higher level of appellate scrutiny should not apply to a sentence based on a district judge’s critique of the crack-powder disparity.
Justice Ginsburg’s opinion took account of an important policy development since the case was argued on Oct. 2. On Nov. 1, amended guidelines for crack cocaine that the United States Sentencing Commission had long advocated took effect when Congress, which had the power to block them, let the moment pass without acting.
Justice Ginsburg said that "this tacit acceptance" of the amendment by Congress "undermines the government’s position" that judges should not have discretion to depart from the guidelines themselves.
The amendments put into effect a relatively modest change that will reduce sentences for crack by about one-quarter, resulting in sentences that are two to five times longer than for equivalent amounts of powdered cocaine.
The commission was limited in what it could accomplish on its own. A 1986 federal law, enacted at the height of public concern about crack, incorporated a 100 to one ratio into mandatory minimum sentences — that is, the same sentence was imposed for a given amount of crack and 100 times that amount of powder.
The Sentencing Commission guidelines operated as an overlay on that statutory framework. But as the commission studied the impact, it grew concerned. A 2002 report noted that 85 percent of defendants convicted of crack offenses were black, a fact the commission warned was leading to a loss of confidence in the fairness of the system.
Bipartisan bills are pending in Congress to address the disparity. On Tuesday, the Sentencing Commission will vote on whether to make the Nov. 1 amendment retroactive to the 19,500 inmates imprisoned for crack offenses.
The court’s endorsement of judges’ discretion raised the prospect that higher sentences, not only lower ones, would now be upheld on appeal.
Current statistics indicate that defendants benefit the most when judges depart from the guidelines. Below-guidelines sentences have been given in 11.9 percent of cases, and above-guidelines sentences in 1.6 percent. Criminal defense lawyers regarded the decision on Monday as good news.
"The court has taken the handcuffs off and told judges that ‘you are free to apply your mind,’" said Graham Boyd, director of the Drug Law Reform Project of the American Civil Liberties Union.
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