The Supreme Court added to its docket United States v. Kimbrough, 06-6330, which involves the application of the United States Sentencing Guidelines (“Guidelines”).
Note – Crack cocaine (hereinafter “crack“) is cocaine hydrochloride that is processed with baking soda to form of cocaine capable of being smoked. Cocaine in powder form will be referred to as “cocaine.”
Synopsis – Kimbrough was sentenced to 120 months for possession of 50 grams of crack cocaine. The range under the Guidelines was 168 – 210 months. The judge made the downward departure from the Guidelines based upon his disagreement with the sentencing disparity between crack cocaine and powder cocaine. This disparity in sentencing is known as the “100:1 crack/powder ratio,” which means that a defendant who deals 100 pounds of powder cocaine faces the same punishment as the defendant who deals 1 pound of crack.
Issue – The Court will decide whether a judge may deviate from the Guidelines if he disagrees with the decreased punishment for powder cocaine by giving a shorter sentence than required.
State of the Law – In United States v. Booker, the Supreme Court held that sentence enhancements, under the Guidelines, based upon facts found by the sentencing court and not a jury, violated the Sixth Amendment. The Booker majority remedied this situation by making the Guidelines advisory.
After Booker, sentencing now requires two steps:
- The court must consult the Guidelines and calculate the range of punishment,
- The court must consider the sentencing range along with the other factors described in 18 U.S.C. § 3553(a) and then impose a sentence. The factors in § 3553(a) are:
- The nature and circumstances of the offense and the history and characteristics of the defendant
- The need to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense
- The need for deterrence
- The need to protect the public
- The need to provide the defendant with needed educational or vocational training or medical care
- The kinds of sentences available
- Pertinent policy statements of the Sentencing Commission
- The need to avoid unwarranted sentencing disparities
- The need to provide restitution to victims
If the sentencing court determines that a sentence outside the range is more appropriate it may impose such sentence, provided it explains “why a sentence outside of the Sentencing Guideline range better serves the relevant purposes set forth in § 3553(a).” United States v. Eura, 440 F.3d 625, 632 (4th Cir. 2005). In determining whether a sentence is reasonable, on appeal, the court will look to the reasons stated by the sentencing court for departing from the range established by the Guidelines. In Eura, the sentencing court mentions the Sentencing Commission’s recommendations to lower the 1:100 ratio, and concluded that applying this ratio will not provide for a fair and just punishment. The court then sentenced Eura to 60 months, a sentence below the advisory sentencing range of 78 to 97 months.
United States Sentencing Commission recommendations on crack versus cocaine:
- 1995 – recommends equal punishment, 1:1 – Congress and POTUS disapprove
- 1997 – recommends reducing ratio to 5:1 – Congress takes no action
- 2002 – recommends reducing ratio to 20:1 – Congress takes no action
United States v. Eura, 440 F.3d 625, 632 FN5 (4th Cir. 2005).
Discussion – The original determination by the Sentencing Commission, ratified by subsequent inaction by Congress, is that defendants who use, deal, or traffic in powder cocaine should receive a substantially reduced punishment for not converting their narcotics into a solid form. This reduced punishment for refraining from adding baking soda to cocaine has waned in popularity with the Sentencing Commission and some federal judges, but has not taken hold in the legislative branch. Evidentially, Congress remains of the belief that those who use, deal, or traffic in powder cocaine are less dangerous, or at least less worthy of punishment. This reduced punishment for powder cocaine is referred to, by the author, as the “powder discount.”
Some proclaimed Booker to be an extraordinary decision, freeing federal judges to again do what a judge is to do, i.e., judge. It became tempting for judges, as in Kimbrough, to offer those convicted of crimes involving crack the powder discount. The current state of the law demonstrates that Booker was not a watershed case. Under the current system a judge:
- Calculates the sentence under the Guidelines
- Consider the factors from the Guidelines
- Is then “free” to impose a sentence, provided sufficient justification is noted
This illustrates the major problem with the Federal Sentencing Guidelines: that they exist. If the rational for creating the Guidelines was to ensure sensible and consistent punishment, it is a failure. Any system that formulates, adopts, and continues to endorse a powder discount of offenses involving cocaine, is incurably flawed. We should rid ourselves from the yoke of the Guidelines, and return to a more sensible approach to crime and punishment.
Have the legislature enact statutes with elements and a range of permissible punishments. Have a jury, or judge, determine guilt or innocence and, when necessary, sentence within the range of permissible punishment based upon evidence admitted at trial. Have the executive grant clemency to remedy injustice.
A jury determining that it is appropriate to give a massively lesser sentence, based only on the fact that the accused kept her cocaine in powder form, is unimaginable. Yet, that is what we have under the Guidelines.