By RICHARD MEEHAN
The Cool Justice Report
Dec. 21, 2007
EDITOR'S NOTE: This column is available for reprint courtesy of The Cool Justice Report, http://cooljustice.blogspot.com
The United States Supreme Court, in Kimbrough v. United States, took an unexpected turn this month.
(For those of you playing at home the citation is 2007 U.S.Lexis, 76 U.S.L.W. 4023) The Bush dominated court is widely considered conservative and staunchly "law and order." The Kimbrough decision appeared shockingly out of character for this staid group of jurists.
Mr. Kimbrough was indicted for trafficking in both crack and powder cocaine. He pled guilty in the District Court and was sentenced below the applicable range suggested by the U.S. Sentencing Guidelines.
For the benefit of those unfamiliar with the sentencing structure in the federal criminal justice system, in 1984 Congress established the U.S. Sentencing Commission and challenged it to create a series of sentencing guidelines applicable to all federal crimes that would address the widespread disparity in sentences among the various District Courts. In 1987 the sentencing guidelines became effective. Each category of crime was assigned offense severity levels. Adjustments in those levels were then made based on a variety of factors. In drug cases the greatest adjustment related to the weight of the narcotic. The greater the weight the higher the potential sentence would be. It appeared to be a sensible approach.
Kimbrough argued that sentencing guidelines created an unwarranted disparity between sentences for distribution of an amount of crack versus those for distribution of an equivalent amount of powder cocaine. The guidelines employed a 100-to-1 ratio; that is a crack was determined to be 100 times more harmful than powder cocaine, which resulted in sentences for crack offenses three to six times longer than those for offenses involving equal amounts of powder. The effect was that a major purveyor of powder could conceivably receive a shorter sentence than a low-level dealer who buys powder and converts it to crack. This fact subverted the intention of the U.S. Sentencing Commission to provide greater punishment for major drug distributors.
The Supreme Court began its analysis by noting the differences between powder and crack cocaine. Powder cocaine is generally inhaled. "Crack cocaine is formed by dissolving powder cocaine and baking soda in boiling water. The resulting solid is divided into single-dose 'rocks' that users smoke. The active ingredient in powder and crack cocaine is the same. The two forms of the drug also have the same physiological and psychotropic effects, but smoking crack cocaine allows the body to absorb the drug much faster than inhaling powder cocaine, and thus produces a shorter, more intense high."
The court discussed the genesis of the disparate treatment of crack and powder cocaine:
"Crack cocaine was a relatively new drug when the 1986 [Anti-Drug Abuse] Act was signed into law, but it was already a matter of great public concern: 'Drug abuse in general, and crack cocaine in particular, had become in public opinion and in members' [of Congress] minds a problem of overwhelming dimensions.' . . . Congress apparently believed that crack was significantly more dangerous than powder cocaine in that: (1) crack was highly addictive; (2) crack users and dealers were more likely to be violent than users and dealers of other drugs; (3) crack was more harmful to users than powder, particularly for children who had been exposed by their mothers' drug use during pregnancy; (4) crack use was especially prevalent among teenagers; and (5) crack's potency and low cost were making it increasingly popular."
The Sentencing Commission revisited the issue in a report released in May, 2007, now noting that the prevailing research and data no longer fully supported the above quoted concepts. Empirical data reveals that crack is still more addictive than powder cocaine, and that crack offenses are more likely to be involved with the use of weapons. Its distribution is associated with higher levels of crime; but, the data does not warrant the 100-1 ratio that the guidelines employed. The court also noted that the feared crack epidemic among youth never materialized. Further, studies demonstrated that the pre-natal effect of the use of powder cocaine was similar to the pre-natal effect of crack.
Of equal concern to the court was the observation that this differential "fosters a lack of confidence in the criminal justice system because of a perception that it promotes an unwarranted divergence based on race. . . Approximately 85 percent of defendants convicted of crack offenses in federal court are black; thus the severe sentences required by the 100-to-1 ratio are imposed "primarily upon black offenders." United States Sentencing Commission, Report to Congress: Cocaine and Federal Sentencing Policy iv (May 2002).
In a recent landmark decision, United States v. Booker, the Supreme Court determined that the Sentencing Guidelines could not survive constitutional scrutiny if they continued to be viewed as mandatory. In subsequent decisions this year the court re-emphasized the advisory nature of these guidelines. Discretion to fashion appropriate sentences rightfully belongs vested in the judiciary. In Kimbrough's case a departure from the Draconian crack guidelines was warranted.
This decision does not represent a weakening of the resolve of the courts to deal severely with the continuing epidemic of drug distribution and use in this country. Rather, it is an attempt to ensure that fairness and reasonableness continues to prevail in the sentencing process.
Bridgeport attorney Richard Meehan Jr. was the lead defense counsel for former Bridgeport Mayor Joseph Ganim's corruption trial. Meehan is certified as a criminal trial specialist by the National Board of Trial Advocacy since 1994 and serves on the organizations Board of Examiners. He is a Charter Fellow, Litigation Counsel of America -- Trial Lawyer Honorary Society. Meehan has also obtained multi-million dollar verdicts and settlements in complex medical and dental malpractice and personal injury litigation. He is a past president of the Greater Bridgeport Bar Association and appears regularly on Court TV. Website, www.meehanlaw.com