Gavel Grab

Supreme Court Ensures Sentencing Discretion

On December 10, 2007, the Supreme Court, in a 7-2 ruling in Kimbrough v. U.S., held that, because the federal sentencing guidelines are advisory rather than mandatory, a trial judge was permitted to consider the disparity between sentences for crack and powder cocaine offenses in determining that a sentence within the guidelines’ range was excessive. The Court ruled that judges can consider the unfairness of the 100-to-1 ratio between crack and powder cocaine sentences and may impose a sentence below the crack guideline in cases in which the guideline sentence is too severe. Previously, the U.S. Sentencing Commission issued an opinion that the 100-to-1 ratio was unwarranted, and amended the guidelines so that defendants convicted of crack offenses will now face sentences that are an average of 16 months shorter than was previously the case.

In another 7-2 decision on the same day, the same majority of the Supreme Court ruled in Gall v. U.S. that judges have the authority to impose sentences that deviate from the federal sentencing guidelines and need not demonstrate “extraordinary circumstances” to justify these sentences to appellate courts.

The Constitution Project’s bipartisan Sentencing Committee, co-chaired by Edwin Meese III, Distinguished Fellow in Public Policy at the Heritage Foundation and Attorney General under President Ronald Reagan, and Phillip Heymann, professor of law at Harvard Law School and Deputy Attorney General under President Bill Clinton, addressed the crack/powder sentencing disparity in its report, “Recommendations for Federal Criminal Sentencing in a Post-Booker World.” The Committee called the 100:1 powder/crack cocaine weight disparity on which the sentencing guidelines are based “unjustifiable as a matter of policy,” and urged the Sentencing Commission to alter the guidelines in a way that would “ameliorate the harmful effects of this rule.”

Justice at Stake also published a report on judicial discretion and criminal sentencing, Courts…Or Calculators?

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