Supreme Court Addresses Unfairness in Crack Cocaine Sentencing Disparity
Report by Johanna Miller, New York Law School Class of 2008

In early December the Supreme Court delivered its opinion in Kimbrough v. United States, effectively restoring drug sentencing discretion to district court judges. The decision permits judges to deviate from federal Sentencing Guidelines, giving lighter sentences in drug cases, including in situations where the judge feels the Guidelines create an unjust result.

Derrick Kimbrough, a Persian Gulf war veteran, pled guilty to two counts of possessing and distributing more than 50 grams of crack cocaine in Norfolk, Virginia. Combined with his criminal record (misdemeanors only) and a weapons charge that carried its own mandatory five-years, the recommended sentence for Mr. Kimbrough was 19-22 years in prison. This sentence is based on Federal Sentencing Guidelines which recommend the punishment for crack cocaine be 100 times that for powdered cocaine. The federal district court judge sitting in the case, Judge Raymond A. Jackson, called the recommended sentence “ridiculous” and refused to impose it. He sentenced Mr. Kimbrough to 15 years. On appeal, the U.S. Court of Appeals for the Fourth Circuit overturned Judge Jackson’s discretionary sentence, ruling that trial judges act unreasonably if they decline to follow sentencing guidelines based solely on a desire to “avoid the sentencing disparity caused by the 100 to 1 ratio."

In her majority opinion reversing the Fourth Circuit, Justice Ginsburg relied on the recent action of the United States Sentencing Commission to reduce recommended crack cocaine sentences by 30%. Congress did not block the amended Guidelines, which went into effect on November 1. Justice Ginsburg commented on this failure to act as an acknowledgment by legislators that the 100 to 1 sentencing disparity needed to be addressed.

In an unusual move, the Court actually reinstated defendant Kimbrough’s reduced sentence, rather than remanding to the lower courts to take action based on the opinion. The case was notable in another respect as well, uniting seven of nine Justices on what has been a deeply ideologically divided bench. Justices Thomas and Alito dissented in both Kimbrough and a companion case decided the same day, United States v. Gall.

Because of the highly politicized nature of the “War on Drugs,” legislators have had little incentive to reexamine the crack cocaine sentencing disparity since it was created in 1986. For years, federal district judges have deviated from the guidelines in cases where the 100 to 1 ratio seemed particularly unfair. In 2005, the Court held that the Guidelines were not mandatory but were to serve as benchmarks in sentencing decisions (United States v. Booker, 543 U.S. 220). That decision lead to a curious result, allowing district court judges to decide sentences they felt were fair, but not protecting them from Circuit courts for what they viewed as reversible policy-based decisions. After Kimbrough, Circuit courts will not be able to second-guess sentencing based on the judge's consideration of the disparity between crack and powder cocaine sentences.

Kimbrough is a victory for proponents of racial justice, as over 80% of crack cocaine defendants in recent years have been African American. As expected, the Court's decision has created a ripple effect. Days after the Court’s decision, the Sentencing Commission voted to apply it retroactively to the over 19,000 people currently imprisoned on crack cocaine-related offenses, to take effect in March 2008. That same week, Representative Sheila Jackson-Lee (D-TX) introduced bi-partisan legislation to adjust the mandatory sentences created by the 1986 Act, bringing them more in line with mandatory minimums for other “hard” drugs.