ACSBlog: The Blog of the American Constitution Society

by Nkechi Taifa, Senior Policy Analyst, Open Society Policy Center; Adjunct Professor, Howard University School of Law

Within the past twenty years if there has ever been a time when change was on the horizon with respect to the crack/powder disparity issue, now is that time.  There has never been as much momentum involving different key players focused on this issue from different vantage points than there is now.  Last fall the U.S. Judicial Conference passed a resolution opposing the disparity, noting the “corrosive effect on public confidence in the courts.”  This May, the U.S. Sentencing Commission released its fourth report on Cocaine and Federal Sentencing Policy, preceded by a proposed amendment to the sentencing guidelines which sets guideline ranges for crack offenses in line with mandatory minimum penalties.  There is a beehive of activity on the horizon in the Congress with Senators Sessions, Hatch, Biden and Leahy preparing bills for reform.  And now, despite DOJ objection, there is unprecedented momentum from the high court. 

On June 11th the Supreme Court, which in the past has been disinclined to address the controversial disparate sentencing between crack and powder cocaine, granted cert in Kimbrough v. U.S., to be addressed next Term.  Kimbrough, a Gulf War veteran with no prior felonies, was charged with conspiracy to distribute 56 grams of crack cocaine and 92 grams of powder cocaine, as well as a firearms offense. The district court judge characterized the applicable guideline range of 19-22 years, which was inflated in part because of the crack charge, as “ridiculous” and “clearly inappropriate.”  Instead, citing U.S. Sentencing Commission repeated reports describing the injustice of crack sentencing, the judge authorized a sentence of 15 years, the minimum he could statutorily impose.  The 4th circuit reversed, holding that “a sentence that is outside the guidelines range is per se unreasonable when it is based on a disagreement with the sentencing disparity for crack and powder cocaine offenses.”   Although reading tea leaves is far from sound, the willingness of the Court to accept Kimbrough v. U.S. in the face of opposition from the Department of Justice could evidence a readiness to finally confront a case involving the crack disparity head on and, hopefully, correct an injustice whose time has come.

Other cases involving what is “reasonable” in the post-Booker world of judicial discretion will also be addressed by the Court next Term.  In Gall v. U.S., which replaced the dismissed case of Claiborne v. U.S. after the death of the petitioner, the 8^th circuit ruled that the district court’s sentence of three years probation versus 30-37 months was not sufficiently supported by “extraordinary justifications” in imposing a sentence below the guidelines. The district court based its deviation from the guidelines in granting probation largely on Gall’s impressive rehabilitative conduct since the commission of the crime.  The now mooted Claiborne case would have also tested the reasonableness of a sentence outside the guidelines range.  Claiborne had been convicted of a first time non-violent offense involving five grams of crack cocaine.  His sentence of 15 months rather than the guideline range of 36-47 months was overturned on appeal as unreasonable. 

Although the aforementioned cases involve the reasonableness of a sentence outside of the Sentencing Guidelines range, a decision this Term is expected in Claiborne’s companion case, Rita v. U.S., which tests whether a sentence within the Guidelines range is to be presumed reasonable on appeal.