Pubdate: Wed, 03 Oct 2007
Source: USA Today (US)
Page: 7A
Copyright: 2007 USA TODAY, a division of Gannett Co. Inc
Contact:  http://www.usatoday.com/printedition/news/index.htm
Details: http://www.mapinc.org/media/466
Author: Joan Biskupic, USA TODAY
Bookmark: http://www.mapinc.org/find?199 (Mandatory Minimum Sentencing)
Bookmark: http://www.mapinc.org/find?244 (Sentencing - United States)

HIGH COURT EXAMINES JUDGES' POWER TO BE LENIENT

Some Impose Penalties That Fall Short of What Sentencing Guidelines Call For

WASHINGTON -- The Supreme Court struggled Tuesday with how much 
discretion U.S. judges have to give lenient sentences, including in 
crack cocaine cases.

The justices appeared torn on the question that could affect tens of 
thousands of federal defendants prosecuted each year.

The high court has imposed standards for sentencing in recent years 
to ensure that judges boost prison time based only on facts proved to 
a jury beyond a reasonable doubt, such as establishing that a crime 
was particularly cruel.

A side effect of those decisions has been confusion over how much 
discretion trial judges have to vary sentences beyond the U.S. 
Sentencing Guidelines, adopted in the 1980s to bring uniformity to 
prison time and counteract race, wealth and other biases. Judges 
found that the guidelines sometimes prevented them from dealing 
fairly with individual circumstances.

The Supreme Court ruled in 2005 that the guidelines should be 
considered advisory, not mandatory. Now the question is how appeals 
courts should determine whether a sentence outside the guidelines was 
"reasonable."

Brian Gall was convicted in Iowa of conspiracy to sell the drug 
Ecstasy. He was given probation rather than the guidelines' range of 
30-37 months behind bars. The judge noted that Gall walked away from 
the conspiracy at age 21, finished college and started a business. He 
turned himself in when he was later indicted.

Derrick Kimbrough was convicted in Virginia of selling crack and 
powder cocaine and sentenced to 15 years in prison rather than 19-22 
years under the guidelines. The judge cited Kimbrough's military 
service, along with the controversy over the disparity in punishments 
for crack and powder cocaine crimes.

Sentences for dealing crack cocaine are far harsher than those for 
powder: 1 gram of crack triggers the same sentence as 100 grams of 
powder. The U.S. Sentencing Commission, which recommended that 
Congress narrow the 100-1 ratio, says the stiff crack sentence falls 
disproportionately on black offenders and low-level dealers.

In the Gall and Kimbrough disputes, appeals courts said the judges 
lacked the latitude to give the lower sentences. The defendants appealed.

Justice Samuel Alito, who spent 15 years as an appellate judge before 
being appointed to the high court, was an active questioner Tuesday. 
He challenged Gall's lawyer, Jeffrey Green, on the notion that a 
judge could show leniency based on a defendant's youth, calling that 
"a policy question."

To Kimbrough's lawyer, Michael Nachmanoff, Alito suggested judicial 
latitude on cocaine sentences could pose a dilemma for appellate 
judges. "What if (an appeals court) sees a number of absolutely 
identical cases?" he asked. If one sentencing judge used a 1-1 ratio, 
the next one used 20-to-1 and the next 50-to-1, "what is it to do 
under 'reasonableness' review?" Nachmanoff said that if the judges in 
those cases had sufficient reasons, the sentences should be upheld.

Justice Department lawyer Michael Dreeben, seeking to win longer 
sentences for the two men, urged an approach used by many appeals 
courts. It demands that a sentence varying significantly from the 
guidelines be justified by a rationale that is equally weighty.

Justice John Paul Stevens wondered whether that test was too vague: 
"How do you measure the strength of the justifications?"

Dreeben noted that the differing cocaine penalties stemmed from 
Congress' view in its 1986 law that crack dealing spawned more violence.

"For a judge to say Congress is crazy," Dreeben said, "is a sort of 
textbook example of an unreasonable sentencing factor." 
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