Kimbrough v. United States

Bill Long 12/11/07

Docket No. 06-6330; Oral Argument Oct. 2, 2007
CASE DECIDED: DECEMBER 10, 2007--Summary HERE

This, along with the Gall case, also argued on Oct. 2, deals with the issue of the mandatory or "optional" nature of the federal sentencing guidelines. The Kimbrough case has the extra feature of a conviction for possession/distribution of crack cocaine thrown in. Specifically, Kimbrough deals with whether the crack/powder cocaine ratio, which leads to higher sentences for possession/distribution of crack cocaine, is also "advisory" or "mandatory" for judges in handing down sentences [more on the specifics of crack vs. powder below]. For more than a decade, civil rights leaders and others have complained that the disproportionate sentences for distributing crack and powder cocaine tends unfairly to burden African-American defendants. Though I can't get into that charge here, I can explore the statutory problems with crack v. powder cocaine in this essay. Let's first tell the story of Mr. Kimbrough's fate, with an awareness that sentences for distribution/use of crack cocaine are about 3-6 times as severe as those for the same crimes with powder cocaine.

Important Facts from Below

In Sept. 2004, Derrick Kimbrough was indicted in federal court in Virginia and charged with four offenses: conspiracy to distribute crack and powder cocaine; possession with intent to distribute more than 50 grams of crack coaine; possession with intent to distribute powder cocaine; and possession of a firearm in furtherance of a drug-trafficking offense. He pled guilty. The sentencing guideline range was 168 - 210 months for the drug charges and 60 consecutive months for the firearm charge. But the judge, justifying his decision partially on his disagreements with the sentencing disparity for crack and powder cocaine violations (more below), sentenced Kimbrough to 120 months for the drug charges and 60 months to be served thereafter on the firearms charge. This is a total of 15 years in prison.

But the Fourth Circuit reversed. According to its precedent in US v. Eura (440 F3d 625 (4th Cir., 2006)), a sentence that is outside the guideline range is per se unreasonable when it is based on a disagreement with the sentencing dispartiy for crack and powder cocaine offenses. Because the district court concluded that the crack to powder cocaine disparity warranted a sentence below the sentencing guideline range, the Fourth Circuit vacated the district court's decision and remanded the case for resentencing. But the case never made it back to the district court, because it is now in the Supreme Court. Thus, the Supreme Court will have to explore whether a judge has liberty to decrease the sentencing range for a crack cocaine conviction because of his/her perception that there isn't a great deal of difference between the two substances and because the disproportionate sentences for possession/distribution of each are therefore unfair. But before we move to the Supreme Court's decision (here), we must say a word about the difference between powder and crack cocaine.

What is the Crack Cocaine Issue?

Crack and powder cocaine are two forms of the same drug. Powder cocaine is generally inhaled through the nose; it may also be mixed with water and injected. Crack, however, is formed by dissolving powder cocaine and baking soda in boiling water. Then, the solid that forms is divided into "rocks" that users smoke. The two forms of the drug have the same physiological and psychotropic [i.e., affecting the mind] effects, but smoking crack cocaine allows the body to absorb it much more quickly, thus producing a more intense, albeit briefer, "high."

Although crack and powder are chemically similar, they are handled differently if you get caught with each. The Sentencing Commission originally adopted a rule which subjected a drug trafficker dealing in crack cocaine the same sentence as one dealing in 100 times more powder cocaine. Under the Anti-Drug Abuse Act of 1986, a two-tier scheme of five-and ten-year mandatory sentences for drug manufacturing and distribution offenses was put in place. The Acts' five-year mandatory minimum applies ot any defendant accountable for 5 grams of crack or 500 grams of powder, and its ten-year mandatory minimum applies to any defendant accountable for 50 grams of crack or 5,000 grams of powder. Now you see how crack is considered 100 times more dangerous than powder, even though the are the same substance. In practice, the actual sentences for a crack conviction are three to six times as long as those for a powder conviction. The irony of the situation was that a low-level crack user might get a heftier prison sentence than a high-level powder distributor.

When the Commission first adopted the disparity for punishment between the two, crack cocaine was a new drug and its effects weren't fully known. Yet, as the Supreme Court says, Congress and the Commission apparently believed that crack was signficantly more dangerous than powder cocaine for the following reasons:

"(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, quoted in Kimbrough v. US, December 10, 2007 at *7.

Further research led the Commission to see that the disparity between the punishment for both was inconsistent with the Act's goal of punishing major drug traffickers more severely than low-level dealers. But once the Commission adopted the sentencing scheme, what do you think the chances of that body's changing its mind, especially if it results in lesser punishments for using crack cocaine? Since Congress could override (and did override) the Sentencing Commissions attempts to change the ratio, things stayed the same. Can't you just see the next Congressional elections if Congress had actively approved what could be called decreased penalties for use of crack cocaine? How much hay would Fox NEWS have made over that? Everyone who voted for the issue of equity would be branded as "soft on crime." If a Representative or Senator had that "brand" on him/her in the 1990s or 2000s, s/he would surely be turned out of office to one who was "tougher" on crime. So, we basically are stuck with the disparity arising from the 1986 Act.

Or, are we? The Supreme Court's decision in Kimbrough would extend the Booker principle to the issue of crack cocaine. Read my summary of the Court's Dec. 10 decision to understand what this means.

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