Outside editorial: Guiding judges

Posted: Tuesday, October 09, 2007

Last week, the Supreme Court addressed an issue ripped from the headlines - or at least the Op-Ed pages. Should the possession of crack cocaine lead to a significantly longer prison sentence than possession of the powder variety?

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The 100-1 disparity in punishment for crack or powder cocaine is irrational, and it disproportionately affects African Americans; those are reasons enough to strike that disparity forthwith. But the court will be inviting another injustice if it rules that judges are free to disregard sentencing guidelines altogether because they disagree with their underlying rationale.

In the popular imagination, it's a judge who decides how many years in prison -- if any -- a convicted criminal will serve. In the federal courts, however, sentences are also shaped by Congress, which sets minimum and maximum penalties, and the U.S. Sentencing Commission, a body created by Congress in 1984 to reduce disparities in sentences imposed for the same crime. Some of those efforts have produced painful results. Many of the mandatory minimums, for instance, were driven by politics and have created unduly harsh sentences. The need for guidelines of some sort, however, remains. Defendants convicted of similar offenses should receive comparable treatment.

The commission produces elaborate guidelines for sentences, based on a variety of factors. Originally the guidelines were mandatory (though in exceptional cases a judge could depart from them). But in 2005, the Supreme Court ruled that, because some of the factors in the guidelines leading to harsher punishment weren't submitted to juries, the guidelines should be treated as "advisory."

In June, the court seemed to give the guideline system a new lease on life when it ruled that appeals courts could presume that a sentence within the guidelines was reasonable. But what if a judge gives sentences outside the guidelines? Can the government successfully appeal on the grounds that the sentence is for that reason unreasonably lenient?

The high court heard two such cases last week, but most attention focused on that of Derrick Kimbrough, a Gulf War veteran arrested in a car in Norfolk, Va., with crack and powder cocaine and a gun. Sentencing guidelines called for 19 to 22 years in prison, but the judge - who described the guidelines sentence as "ridiculous" - gave Kimbrough a 15-year term instead. An appeals court said the lighter sentence was unreasonable.

If the Supreme Court rules that Kimbrough's sentence was appropriate, the pendulum will swing back in the direction of judicial discretion. That would be fine for those (including many federal judges) who long have denounced the guidelines as "cookie-cutter justice." But it would undermine Congress' original and laudable purpose in creating the Sentencing Commission: to ensure that neither a defendant's race nor the luck of the draw in being assigned to a particular judge makes the difference in how he or she is punished.

However the Supreme Court rules in the Kimbrough case, it should be careful not to invite wholesale subversion by judges of the guideline system. Meanwhile, the crack/powder disparity finally will be narrowed under new Sentencing Commission guidelines that will take effect on Nov. 1 unless Congress vetoes them. Having gotten itself, the commission and the courts into this mess, Congress should allow the improved guidelines to take effect without meddling.



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