ACSBlog: The Blog of the American Constitution Society

by Mary Price, Vice President and General Counsel, Families Against Mandatory Minimums

Editor's Note: Kimbrough was argued before the Supreme Court yesterday. A transcript of the argument and video from ACS' Supreme Court Preview on the sentencing guidelines is available here.

There is heightened anticipation among those interested in criminal justice that the United States Supreme Court, in Kimbrough v United States, will allow judges to disregard the federal sentencing guidelines that can punish low-level crack cocaine offenders far more seriously than their high-level powder cocaine suppliers, so long as the judge determines the resulting sentence is greater than necessary to achieve the goals of sentencing. Judges may so conclude because the guidelines equate 1 gram of crack cocaine with 100 grams of powder cocaine even though the two drugs are virtually indistinguishable. While the Court decision holds critical implications for judicial independence and may even shorten prison time for some offenders, the outcome will not substantively address the incredibly inequitable crack cocaine mandatory minimum set by Congress. Only Congress can fix the mandatory minimum crack cocaine penalty structure.

In 2005, Derrick Kimbrough pled guilty to distributing 50 or more grams of crack cocaine, distributing cocaine, conspiring to distribute 50 grams of crack cocaine, and possession of a firearm in connection with a drug-trafficking crime. If sentenced according to federal sentencing guidelines, Kimbrough would have received between 228 and 270 months for his crimes. Judge Raymond Jackson of the United State District Court for the Eastern District of Virginia found that the sentence mandated by the guideline was too harsh after weighing other factors, including Kimbrough’s honorable discharge from the armed forces and his limited criminal record only marked by misdemeanors. (Petitioner’s Brief) Instead, Judge Jackson sentenced Kimbrough to 180 months in prison, the mandatory minimum sentence he was required to impose. The prosecution successfully appealed the ruling because the sentence fell below the minimum prescribed by the Federal Sentencing Guidelines.

Yesterday, the U.S. Supreme Court heard arguments to determine to what extent district courts can take into account disagreement with the 100:1 ratio when sentencing defendants under the guidelines for crack cocaine offenses. What the Court cannot and did not consider is if a judge must abide by mandatory minimums. They must, until Congress reforms the law.

In the mid-1980s, Congress responded to a series of high profile criminal cases by passing a set of drug and gun crime statutes containing mandatory minimum penalties. Mandatory minimums were heralded by some as the best way to ensure that crime would be prevented, wrongdoers would be incapacitated, criminals would be induced to assist the government, and the most culpable would not escape appropriate punishment by virtue of the judge or prosecutor they happened to draw. For example, in the Anti-Drug Abuse Act of 1986, drug kingpins were intended to receive sentences of at least ten years for a  first offense and twenty years for a second offense. In 1988, Congress extended mandatory minimum penalties to reach conspirators as well as principals, ensuring that minimum penalties would apply with equal force to peripheral players. These mandatory minimum penalties were wrong for many reasons, among them the fact that they used drug quantity as a near complete proxy for culpability, and forbade judges from taking other factors about the offense or the defendant -- such as addiction, upbringing, or the wide and rich variety of human characteristics -- into account at sentencing. Cookie-cutter justice tied the hands of judges and resulted in unjust outcomes.

The crack cocaine sentencing structure is the poster child for much that is wrong with mandatory minimum sentencing. Despite the lack of any meaningful difference between the two forms of the drug, crack defendants are subject to the same five- and ten-year mandatory minimum sentences reserved for powder cocaine defendants even though it takes 100 times more powder cocaine to trigger those minimums. The law was born out of fear and based on faulty science and half-truths. In the past twelve years, the U.S. Sentencing Commission has disposed of many of the myths, finding instead that crack and powder cocaine produce the same psychological and psychotropic effects; that its users are not predisposed to violence; and that the effects of prenatal exposure to crack are significantly less than once believed. The most troubling problem with crack cocaine sentencing is its well documented contribution to racial disparity in sentencing. Fully 80 percent of people sentenced for crack cocaine offenses are African American. They serve longer sentences on average than their powder cocaine counterparts. Crack street level dealers are sentenced to an average 97 months in prison compared to 48 months for street level powder cocaine dealers. Fixing the crack cocaine penalty structure would, in the opinion of the Sentencing Commission, dramatically improve the fairness of the federal sentencing system.

The Sentencing Commission has repeatedly called on Congress to change the crack cocaine sentencing statute. The most recent report, issued in May 2007, concludes, as did prior reports, that the crack cocaine penalty is unjustified by the evidence and overstates the harms caused by crack cocaine

Lawmakers are beginning to take notice. No fewer than three bills have been introduced in the Senate that would reduce crack cocaine sentences. Introduced by Sen. Joseph Biden, Sen. Jeff Sessions, and Sen. Orrin Hatch, these bills take different approaches to reducing or eliminating the disparity in sentencing. The Sentencing Commission has also slightly amended the crack cocaine guidelines. The so-called crack minus two amendment, effective November 1, will reduce crack sentences by an average of 16 months. Efforts are underway to encourage the Sentencing Commission to make these amendments retroactive, a move that could benefit thousands of prisoners serving guideline sentences for crack cocaine. 

Quantity-driven mandatory minimums will not be affected by the Supreme Court’s ultimate ruling in Kimbrough orSentencing Commission’s changes. As the Sentencing Commission said when it sent the proposed guidelines to Congress, “the amendment is only a partial solution to some of the problems associated with the 100-to-1 drug quantity ratio. Any comprehensive solution to the 100-to-1 drug quantity ratio would require appropriate legislative action by Congress.” That is why, even as the U.S. Sentencing Commission recommends reducing the sentencing disparity between crack cocaine and powder cocaine, many defendants’ sentences will still be determined by unreasonable mandatory minimum statutes. The power to eliminate disparity, indeed, the power to eliminate mandatory minimums altogether, lies with Congress.