Guest Blogger: What's Next--And What's Left--After Kimbrough?
by Mary Price, Vice President and General Counsel, Families Against Mandatory Minimums
Editor's Note: Kimbrough was decided by the Supreme Court yesterday. Coverage of that decision may be found here.
The United States Supreme Court’s opinion in Kimbrough v. United States, No. 06-6330, is a major sentencing law breakthrough and should be applauded, but it is not a cure-all. The 7-2 opinion allows judges to consider the Sentencing Commission’s criticism of the 100:1 powder/crack cocaine sentencing ratio and use that criticism to justify reducing a sentence for a crack offense below the applicable guideline sentence. After Kimbrough, judges must still consider the guideline sentence but can reduce a sentence below that if they find the guideline sentence is too harsh.
Kimbrough comes on the eve of the Commission’s public meeting to decide whether its recent amendment lowering crack guideline sentences will be applied retroactively to 19,500 people sentenced before November 1, 2007. Assuming the Commission votes in favor of retroactivity, it is tempting to assume the diseased 100:1 ratio is cured. Nothing could be farther from the truth, because Kimbrough does not mend the broken mandatory minimum scheme that set the case into motion in the first place.
The 100:1 ratio comes from the 5 and 10-year mandatory sentences for 5 and 50 grams of crack, respectively, set forth in 21 U.S.C. § 841. It takes 100 times those amounts, or 500 and 5000 grams of powder cocaine, to trigger the same five and ten-year sentences. In Kimbrough,the Court rejected the government’s argument that Congress, in establishing these mandatory minimums, meant that scheme to be replicated throughout the crack sentencing guidelines. This was the most the Court could do because it lacks the power to get rid of that scheme entirely. Equalizing the penalties, or, better yet, eliminating the mandatory minimums, will fix the terrible crack cocaine sentencing structure, and that is a job for Congress.
Kimbrough is a breakthrough, but the Supreme Court is only putting a BandAid on a wound that needs surgery. After Kimbrough, twelve years of criticism and recommendation from the Sentencing Commission,and the Commission’s amendment lowering crack penalties, Congress now has the backing of the Commission and the Courts. It is time for Congress to take up the scalpel and get rid of these senseless laws once and for all. There are several bills in both houses that propose different ratios or eliminate the ratio altogether. Passing one of these bills would heal what Kimbrough cannot.
Until Congress acts, it is some comfort to know that judges now have the discretion to fashion a sentence that fits the crime -- not a box in a grid -- as long as they make a reasoned determination that the guideline crack sentence is unreasonable under the facts of a particular case. The Court’s taut, no-frills opinion is tightly tied to the Commission’s oft-repeated objections to the 100:1 ratio: it overstates the seriousness of crack offenses, harshly punishes low-level offenders, and shatters faith in the justice system by disproportionately impacting blacks. “Given all this,” writes the Court, it is not an abuse of discretion to go below the guidelines when the guideline sentence is greater than necessary to achieve the purposes of sentencing in § 3553(a).
Judges who have come to see the 100:1 ratio as an injustice in a given case now may give real effect to their conviction. And after Gall v. United States, No. 06-7949, that decision will be reviewed under a deferential abuse of discretion standard on appeal. Kimbrough and Gall start us on the road to better justice, but it will still take an act of Congress to reach that destination.