Monday, December 10, 2007


The Courts know best.

Evidence that perhaps Justice Ginsburg has no idea how Congress works, she introduces this strange piece of reasoning for circumventing the statutory basis for a dramatic 100:1 difference in sentencing for crack vice powder cocaine cases:

“Adopting the Government’s analysis, the amended Guidelines would conflict with Congress’ 1995 action, and with the 1986 Act, because the current Guidelines ratios deviate from the 100-to-1 statutory ratio. Congress, however, did not disapprove or modify the Commission-initiated 2007 amendment. Ordinarily, we resist reading congressional intent into congressional inaction. …But in this case, Congress failed to act on a proposed amendment to the Guidelines in a high-profile area in which it had previously exercised its disapproval authority under 28 U. S. C. §994(p). If nothing else, this tacit acceptance of the 2007 amendment undermines the Government’s position, which is itself based on implications drawn from congressional silence.”

The revised Guidelines were introduced in April of this year and became effective November 1…and Justice Ginsburg thinks it significant that Congress hasn't acted within months of the changes.

This is all part of today’s Court decision in Kimbrough, where the question before the Court was:

“… whether the crack/powder disparity adopted in the United States Sentencing Guidelines has been rendered “advisory” by our decision in Booker.” Kimbrough v. U.S.

Remarkably, the Court concludes that judges can be rational people and thus allowed to circumvent statutory guidelines:

“The sentence the District Court imposed on Kimbrough was 4.5 years below the bottom of the Guidelinesrange. But in determining that 15 years was the appropriate prison term, the District Court properly homed in on the particular circumstances of Kimbrough’s case and accorded weight to the Sentencing Commission’s consistent and emphatic position that the crack/powder disparity is at odds with §3553(a). … Giving due respect to the District Court’s reasoned appraisal, a reviewing court could not rationally conclude that the 4.5-year sentence reduction Kimbrough received qualified as an abuse of discretion.”

In Booker, the Supreme Court ruled that the Sixth Amendment guarantee of a trial by jury did not permit federal judges to base sentencing decisions on facts that didn’t go before the jury. Eminently reasonable. Unfortunately, the Court’s solution to this constitutional problem was to make the mandatory Sentencing Guidelines more or less mandatorily advisory. Justice Thomas’s dissent today correctly surmises the problem with the Court’s ever increasing role in deciding appropriate sentences:

“And here the Court holds that sentencing courts are free to reject the Sentencing Guidelines’ 100-to-1 crack-to-powder ratio.

These outcomes may be perfectly reasonable as a matter of policy, but they have no basis in law.”

100 years from now, no-one will be reading Justice Ginsburg but Justice Thomas will be a must-study.

Side Notes: See also Court: Judges Can Reduce Crack Sentences where AP reporter Mark Sherman sums up the decision thusly:

“By a 7-2 vote, the court said that a 15-year sentence given to Derrick Kimbrough, a black veteran of the 1991 war with Iraq, was acceptable, even though federal sentencing guidelines called for Kimbrough to receive 19 to 22 years.”

Maybe I missed it but I didn’t read the facts that Mr. Kimbrough was black, a veteran and had been in the first Gulf War anywhere in the decision nor does Mr. Sherman ever go on to explain why he finds those facts relevant. But I guess it does get Race and Iraq into the story.

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