In a pair of important decisions Monday, the Supreme Court gave federal trial judges much greater latitude to deviate from federal sentencing guidelines.
In one of the decisions, Kimbrough v. United States, the Court voted 7-2 to allow judges to weigh the controversial disparity between guideline sentences for crack and powder cocaine offenses in giving defendants a below-guideline sentence.
In a separate decision with potentially broader impact, the same 7-2 majority ruled in Gall v. United States that judges may deviate from the guidelines without having to demonstrate that "extraordinary circumstances" required sentencing outside the guidelines.
Justice John Paul Stevens, writing for the majority in Gall, said sentencing judges must give "serious consideration" to deviations and must explain their reasoning. But he added that in doing so, judges need not even presume the guidelines are reasonable and instead "must make an individualized assessment based on the facts presented."
Coming in the wake of a series of decisions on the constitutionality and meaning of the guidelines, the high court's rulings Monday represent a significant relaxation of the guidelines' mission of eliminating disparity in sentencing in federal courts.
"The paradigm of uniformity is far from dead, but it does not have as much weight now as before Gall," says Cozen O'Connor's Barry Boss, a criminal defense expert on sentencing.
But Boss adds that significant issues remain to be resolved, including just how much weight the guidelines must be given, as well as the retroactivity of Monday's decisions to those who were sentenced under a stricter standard. "A lot of people today are thinking their sentences were unconstitutionally imposed," he says.
The U.S. Sentencing Commission, which promulgates the guidelines, is set to vote today on whether its own new rules aimed at lessening the crack-powder disparity will apply retroactively -- which could affect as many as 19,500 federal inmates nationwide.
The cocaine decision came in the case of Derrick Kimbrough, whose cocaine and firearms offenses exposed him to a minimum prison term of 19 years under the guidelines. But Norfolk-based Judge Raymond Jackson sentenced him to 15 years, terming the guideline-based sentence "ridiculous."
The 4th U.S. Circuit Court of Appeals vacated the sentence, finding that a sentence outside the guidelines was "per se unreasonable" because it was based on a disagreement with the crack-powder disparity, which can give crack defendants sentences three to six times longer than those of powder offenders.
Kimbrough appealed, but the Justice Department defended the circuit ruling, urging the Court essentially not to second-guess Congress, which until recently resisted changing the sentencing disparity.
But Justice Ruth Bader Ginsburg, writing for the majority, said the government's arguments had not persuaded the Court to "hold the crack/powder ratio untouchable by sentencing courts." Ginsburg said that in establishing the disparate sentences for crack and powder offenses, the commission did not use empirical evidence as it usually does. As a result, deviating from the guidelines is not an abuse of judicial discretion, she said.
Justices Clarence Thomas and Samuel Alito Jr. dissented, arguing that the guidelines deserved more consideration than the majority would give them.
They also dissented in the case involving Brian Gall, a University of Iowa student who briefly helped sell the drug ecstasy in 2000. He soon withdrew from the group and "self-rehabilitated," according to the district court. But in 2004, federal agents questioned him about the drug conspiracy, and Gall pleaded guilty to his role in the enterprise. The guidelines would have called for a roughly three-year prison term, but a judge in the Southern District of Iowa sentenced him to probation for three years, citing his rehabilitation and successful business as a contractor. The 8th Circuit reversed, finding that such a deviation had to be justified by "extraordinary circumstances."
Stevens' opinion scolded the appeals court, asserting that is not for appeals judges to "decide de novo" whether the trial judge's "reasoned and reasonable" sentence should be altered.
Sidley Austin's Jeffrey Green, who represented Gall before the high court, applauds the ruling: "Brian can now be free of the anxiety that the successful, law-abiding life he created for himself before and during his probationary period will not be taken away from him."
Green adds, "The court has restored a good measure of common sense to federal sentencing ... and has encouraged the district courts to avoid a one-size-fits-all approach to sentencing real, flesh-and-blood individuals."
