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U.S. Supreme Court Eases Way for Sentencing Departures

By Debra Cassens Weiss

December 10, 2007, 3:24 pm CST

Updated: Judges may conclude that federal sentencing guidelines for crack cocaine are too harsh given the disparity with recommended sentences for powder cocaine, the U.S. Supreme Court ruled today.

The 7-2 ruling rejects a lower court view that the sentencing guidelines for cocaine are in effect mandatory, SCOTUSblog reports. The decision is one of two issued today easing the way for departures from federal sentencing guidelines.

“A district judge must include the guidelines range in the array of factors warranting consideration,” Justice Ruth Bader Ginsburg wrote for the majority. “The judge may determine, however, that, in the particular case, a within-guidelines sentence is ‘greater than necessary’ to serve the objectives of sentencing.”

The court affirmed a 15-year sentence for Iraq war veteran Derrick Kimbrough, even though guidelines said he should get a sentence of 19 to 22 years in prison, the Associated Press reports.

The decision is Kimbrough v. United States (PDF posted by SCOTUSblog).

The U.S. Sentencing Commission recently changed the guidelines to reduce the crack vs. powder cocaine sentencing disparity. The change took effect Nov. 1. On Tuesday the commission is set to vote on whether to make the change retroactive. The ABA opposes the sentencing differential and supports retroactivity.

In a second sentencing decision today, the Supreme Court said in a 7-2 ruling that lower courts may use a deferential standard when reviewing sentences below the guidelines range, the blog says. The St. Louis-based 8th U.S. Circuit Court of Appeals said below-guidelines sentences are reasonable only if there are “extraordinary sentences.” But the ruling by Justice John Paul Stevens said reviewing courts may use an “abuse of discretion” stands.

“We now hold that, while the extent of the difference between a particular sentence and the recommended guidelines range is surely relevant, courts of appeals must review all sentences—whether inside, just outside, or significantly outside the guidelines range—under a deferential abuse-of-discretion standard,” Stevens wrote for the court.

The decision is Gall v. United States.

Writing at his blog Sentencing Law and Policy, law professor Douglas Berman of Ohio State University says the Gall decision may have more long-range impact. Among the big winners, he says, are criminal defense lawyers, “who now have many new and renewed arguments for arguing for below-guideline sentences.”

Updated at 9:37 AM to include more information from the Kimbrough opinion, at 9:45 AM to include more information from the Gall opinion, at 9:55 AM to include information on crack sentencing guidelines, and at 1:58 PM to include information for the Sentencing Law and Policy blog.