Sensible judgments

December 12, 2007

With a welcome dose of common sense, the U.S. Supreme Court has made it clear that federal sentencing guidelines are advisory, not mandatory, and that a judge is still free to exercise discretion, depending on the circumstances of the case. The court's reiteration of the principle that judges should use their judgment is particularly appropriate in drug cases, where mandatory minimum sentences are often unnecessarily harsh and disparate punishments involving crack and powder cocaine are especially glaring.

The U.S. Sentencing Commission's unanimous vote yesterday in favor of a retroactive review of many of these sentences should help restore some fairness, but it comes after too many people have already served too much time. Congress needs to enact more comprehensive relief.

The guidelines that went into effect in 1987 were meant to address widely uneven sentences, particularly among racial and ethnic groups, but they helped exacerbate the problem. Viewing different forms of cocaine as more or less potent and dangerous sent many urban, minority crack users and sellers to prison for longer terms than their mostly white counterparts who were using and dealing powder cocaine. Many judges who departed from the guidelines - usually offering more leniency - were slapped down by appellate courts.

In two decisions announced this week, a 7-2 majority of the Supreme Court agreed that sentencing judges should have more latitude. The majority reiterated that trial judges can base their sentences on a number of factors and that appellate courts should not think that deviating from the guidelines is unreasonable. That was found to be especially true in one case where the trial judge's disagreement with the crack-powder cocaine disparity was a key reason for the deviation.

The court majority's view on that issue was reinforced by the commission's vote yesterday to apply its earlier recommendation to reduce average sentences for crack users retroactively to about 19,500 inmates, including 279 in Maryland. But even as the commission has taken important steps to amend the guidelines, Congress needs to adjust the drug laws to which the guidelines apply. The House and Senate have been slow to move on bipartisan bills to change the 100-to-1 ratio for amounts of cocaine powder compared with crack that qualify for mandatory minimum sentences. This week's actions by the high court and the commission make Congress' failure to end that disparity even more inexcusable.

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