Supreme Court to review cocaine case

Mark Sherman

WASHINGTON — The Supreme Court agreed Monday to review whether judges are required to impose dramatically longer sentences for crack cocaine than for cocaine powder, stepping into a long-running dispute with racial overtones.

Most crack cocaine offenders in federal courts are black.

The justices said they would hear the case of Derrick Kimbrough in the fall. Kimbrough, who is black and a veteran of the first war with Iraq in 1991, received a 15-year prison term for dealing both crack and powder cocaine, as well as possessing a firearm, in Norfolk, Va.

That was shorter than the federal sentencing guidelines that called for a range of 19 to 22 years in prison.

At Kimbrough’s sentencing hearing, U.S. District Judge Raymond A. Jackson said the higher range was “ridiculous.”

“This case is another example of how the crack cocaine guidelines are driving the offense level to a point higher than is necessary to do justice in this case,” Jackson said.

The judge said the 15-year sentence “is clearly long enough under the circumstances. As a matter of fact, it’s the court’s view that it’s too long, but the court is bound by the mandatory minimums of 10 years on three of these counts.”

The government appealed the sentence. The 4th U.S. Circuit Court of Appeals in Richmond said judges are not free to impose sentences shorter than the guidelines “based on a disagreement with the sentencing disparity for crack and powder cocaine offenses.”

The Bush administration urged the high court to reject Kimbrough’s appeal. The administration also has opposed changes in crack sentencing laws, saying any changes should be part of a comprehensive look at sentencing issues.

Advocates for reducing the disparity point to crime statistics that show crack is more of an urban and minority drug while cocaine powder is used more often by the affluent. They say harsher penalties for crack cocaine unfairly punish blacks.

More than four-fifths of crack cocaine offenders in federal courts last year were black, according to the U.S. Sentencing Commission. By contrast, just over a quarter of those convicted of powder cocaine crimes last year were black, the commission said.

The issue grew out of a 1986 law that was passed in response to violent crimes committed to get money to feed crack habits. The law includes what critics have called the 100-to-1 disparity: Trafficking in 5 grams of crack cocaine carries a mandatory five-year prison sentence, but it takes 500 grams of cocaine powder to warrant the same sentence.

The sentencing commission, an independent agency within the U.S. judiciary, voted last month to reduce the recommended sentencing ranges for people convicted of crack possession, a step toward lessening the disparity. The recommendation will become effective Nov. 1 unless Congress acts.

At the same time, the commission urged Congress to repeal the mandatory prison term for simple possession and increase the amount of crack required to trigger obligatory five-year or more prison terms as a way to focus on major drug traffickers.

The issue was given a boost by the Supreme Court’s decision in 2005 to render the sentencing guidelines advisory instead of mandatory. The guidelines were adopted in the 1980s to ensure comparable sentences for similar crimes from courtroom to courtroom.

But the court ruled that a person’s constitutional right to a jury trial was violated when judges, acting alone, considered factors spelled out in the guidelines to add years to a prison sentence.

The court said sentences must be reasonable and left it to appeals courts to define that term. The vast majority of sentences remain within the guidelines.

The 4th Circuit said a sentence outside the guidelines range is presumed to be unreasonable when it is based on disagreement over the crack cocaine disparity.

Kimbrough’s case will allow the high court to consider a judge’s discretion in such cases.

(Associated Press)