Along with two other cases that raise the question of how judges should choose criminal penalties now that federal sentencing guidelines are advisory rather than mandatory, the Supreme Court has agreed to hear a case that involves the irrational sentencing disparity between smoked and snorted cocaine:
From among many cases pending at the Supreme Court on the question, the justices selected an appeal filed by the federal public defender's office in Virginia on behalf of a man from Norfolk, Derrick Kimbrough, who pleaded guilty to two counts of possessing and distributing more than 50 grams of crack cocaine.
Taking account of Mr. Kimbrough's criminal history and other factors, including a gun possession charge that added a mandatory five-year sentence, the federal guidelines called for a range of 19 to 22 years.
Judge Raymond A. Jackson of Federal District Court, pronouncing such a sentence "ridiculous" and "clearly inappropriate," refused to impose it. Judge Jackson observed that Mr. Kimbrough had served in combat in the Persian Gulf war, had received an honorable discharge and was gainfully employed, with just misdemeanors and no previous felonies on his record.
Noting that the federal sentencing law requires judges to "impose a sentence sufficient, but not greater than necessary" to achieve the statute's purposes, Judge Jackson gave Mr. Kimbrough 15 years, the lowest possible given the statutory mandatory minimums.
The United States Court of Appeals for the Fourth Circuit, in Richmond, rejected Judge Jackson's reasoning and ordered resentencing.
"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," the three-judge appeals court panel said.
The Fourth Circuit is thus at odds with other appeals courts, including the Third Circuit in Philadelphia, which ruled last fall that "a sentencing court errs when it believes that it has no discretion to consider the crack/powder cocaine differential incorporated in the guidelines."
In February, the United States Court of Appeals for the District of Columbia Circuit issued a similar opinion that was sharply critical of the disparity and said, "A sentencing judge cannot simply presume that a guidelines sentence is the correct sentence" for an offense involving crack.