Court: Can Congress Compel Tough Drug Sentences?
By: Administrative Account | Source: CNSNews.com
October 9, 2007 9:49AM EST

By Monisha Bansal
CNSNews.com Staff Writer
October 09, 2007

(CNSNews.com) - The U.S. Supreme Court will soon decide to what extent district courts can deviate from minimum federal sentencing guidelines, particularly in drug cases.

The primary question is whether district court judges must follow a strict interpretation of those guidelines - often with very long prison sentences attached - or, as conservative Supreme Court Justice Antonia Scalia has noted, take them under advisement because they are "not mandatory."

The Supreme Court heard two cases last week, Kimbrough v. U.S. and Gall v. U.S. , both of which deal with sentencing guidelines. Kimbrough also addresses sentencing disparities between powder cocaine and crack cocaine.

In 2005, Derrick Kimbrough, a Gulf War veteran, pleaded guilty to distributing 50 or more grams of crack cocaine.

The U.S. district court judge found that the 19-to-22-year sentence mandated by the federal guideline was too harsh considering Kimbrough's honorable discharge from the armed forces and his limited criminal record. He was sentenced to 15 years in prison.

Brian Gall was given probation instead of 30 to 37 months in prison for conspiracy to sell 10,000 pills of ecstasy. Gall voluntarily quit selling drugs several years before he was implicated, graduated from college and built a successful business.

The minimum sentencing guidelines were created in the 1980s to provide strict uniform standards to crack down on drug trafficking. Mary Price, vice president and general counsel of Families Against Mandatory Minimums, who filed a brief in support of Gall said, "the law was born out of fear and based on faulty science and half-truths."

She noted in a statement that the crack cocaine sentencing structure is the "poster child" for much that is wrong with mandatory minimum sentencing.

"Despite the lack of any meaningful difference between the two forms of the drug," she said, penalties are 100 times stricter per gram of crack than powder cocaine.

"Congress made a mistake by basing sentencing almost exclusively on one factor - drug quantity," she said. "Judges should be permitted to sentence based on all facts about the defendant and the offense, not just quantity. These cases show why mandatory minimum sentencing laws are unwise, unnecessary, and unjust."

But during oral arguments in Gall, Michael Dreeben, deputy solicitor general for the Department of Justice, said, "The reason why the sentencing guidelines system was originally adopted was to eliminate each district judge operating purely on that judge's philosophy."

"The competing rule of mere rationality - or the judge did something that's reasonable - is pretty much a one-way ticket to disparity," he said.

"Because it means that every district judge would get the opportunity to say: I've seen the guidelines, but I don't agree; and, as a result, I'm giving the 15-year sentence to Mr. Gall versus all the way down to probation, and the courts of appeals would have to affirm both," Dreeben said.

Justice Antonin Scalia took issue with Dreeben's argument. "If you are trying to get a narrow range of sentences out of the guidelines, it seems to me you're just working in opposition to what our opinions have said which is that the guidelines are advisory," he said, "and they're not mandatory."

Following the previous Supreme Court decisions on sentencing guidelines, Paul Kamenar, senior executive counsel for the conservative Washington Legal Foundation, urged the court to rule against mandatory minimum sentences.

"Just as we have junk science in the courtrooms, we unfortunately also have junk guidelines that dictate lengthy prison sentences for first-offenders, including small businessmen," he said.

The court is expected to hand down a decision early next year.
"The Supreme Court should emphatically reiterate what it said in Booker and Rita, namely, that the sentencing guidelines are advisory only, and are not to be given special weight by sentencing courts," Kamenar added.

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