High court questions stiff sentencing rules

October 03, 2007|By David G. Savage | David G. Savage,LOS ANGELES TIMES

WASHINGTON -- Hearing arguments in a pair of drug cases, the Supreme Court justices said yesterday that they were inclined to give sentencing judges more leeway - but not total freedom - to impose shorter prison terms.

In the 1980s, Congress adopted sentencing guidelines that set the range of prison terms for all federal crimes. The stiff guidelines and the mandatory minimum sentencing laws have swelled the prison population. Last year, 181,622 inmates were in federal prisons, up from 24,363 in 1980.

The justices struggled yesterday to decide whether a judge may ignore the guidelines and set a much lower prison term.

This "is a one-way ticket to disparity," warned Deputy Solicitor Gen. Michael R. Dreeben. He urged the court to hold the line and require judges to stick to the sentencing guidelines nearly all the time. Otherwise, there will be widely varying prison terms for the same crime, he said, exactly what the 20-year-old guidelines were intended to prevent.

Justice Stephen G. Breyer appeared to agree. It "would be the end of the guidelines," he said, if judges were free to decide on the appropriate prison term. Breyer was an architect of the sentencing guidelines when he worked for the Senate Judiciary Committee in the 1970s, and he has remained their foremost champion.

Justice Antonin Scalia, however, is a skeptic; he said the guidelines often result in overly long prison terms. "The guidelines are only guidelines. They are advisory," he told Dreeben, so judges should be permitted to set lower prison terms.

Several justices also questioned the so-called 100-to-1 sentencing disparity between crack and powder cocaine, a formula that has resulted in longer prison terms for blacks. But the justices also agreed the court cannot wipe away this formula entirely, because Congress wrote it into law.

The so-called war on drugs laws passed in the mid-1980s set a mandatory five-year prison term for selling 5 grams of crack, which is the same sentence for selling 500 grams of powder cocaine.

In the two cases heard yesterday, trial judges had decided on lower sentences, but they were reversed after prosecutors appealed.

The first case concerned Brian Gall, who sold Ecstasy pills as a sophomore at the University of Iowa but quit the drug business in less than a year and went on to earn his degree. He moved to Arizona and started a construction business.

Three years later, when the FBI broke up the drug ring in Iowa City, he was charged and pleaded guilty. Although the sentencing guidelines called for him to serve about three years in prison, a judge sentenced him to probation. But the U.S. Court of Appeals in St. Louis disagreed and said the judge had erred by ignoring the guidelines.

Gall "had fully rehabilitated himself," said Washington attorney Jeffrey Green. It made no sense to ship him off to prison, he argued.

The second case concerned Derrick Kimbrough, a Persian Gulf War veteran who was arrested in a car in Norfolk, Va., with crack and powder cocaine and a gun. The guidelines called for 19 to 22 years in prison, but Judge Raymond Jackson called that term "ridiculous." Instead, he sentenced Kimbrough to 15 years.

Nonetheless, prosecutors appealed and won a ruling from the U.S. Court of Appeals in Richmond saying the judge was wrong.

David G. Savage writes for the Los Angeles Times.

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