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Argument preview: Kimbrough v. US

Argument Preview

By Lyle Denniston

In Kimbrough v. United States, the Supreme Court will consider the authority of federal judges to impose a criminal sentence for a cocaine crime below the 100-to-1 ratio of “crack” to powder cocaine. The ratio directly relates to the length of the sentence, as keyed to the quantity of the drug involved in the specific crime. For example: an individual who deals 5 grams of crack cocaine faces the same sentence as a defendant who deals 500 grams of powder cocaine.

[edit] Background

In the summer of 1986, two years after Congress had enacted the Sentencing Reform Act, the agency created to carry out the Act by crafting Guidelines for federal judges – the United States Sentencing Commission – had not yet begun issuing specific Guidelines. It would do so in a changed cultural and political climate. On June 19, 1986, a gifted basketball player at the University of Maryland, Leonard Kevin (“Len”) Bias, died of cardiac arrest from a cocaine overdose – two days after he had been drafted to play in the professional National Basketball Association. His death had an almost immediate impact in Congress: it enacted the Anti-Drug Abuse Act of 1986, setting mandatory minimum sentences for drug trafficking crimes. As part of the Act, Congress opted to require judges to follow the 100-to-1 crack-to-powder formula. In the words of the Sentencing Commission: “Because it takes 100 times more powder cocaine than crack cocaine to trigger the same mandatory minimum penalty, this penalty structure is commonly referred to as the ‘100-to-1 drug quantity ratio.’” The Sentencing Commission wrote that formula into its Guidelines, and it has remained there since. (While somewhat modified on the point in the meantime, the Guidelines still provide ranges of sentences that include the disparity.)

Four times since then, the Commission has asked Congress to narrow the disparity. In its latest such report, in May 2007, the Commission said the formula “continues to come under universal criticism from representatives of the Judiciary, criminal justice practitioners, academics, and community interest groups, and inaction in this area is of increasing concern to many, including the Commission.” Congress has not responded to those requests, and in fact in 1995 it vetoed a Commission proposal to make the ratio 1-to-1. Congress is now considering whether to veto a proposed new Guideline that, the government has argued, would lead to ratios varying from 25-to-1 and 80-to-1, instead of 100-to-1..

The disparity has created a significant new problem for sentencing judges in drug cases as a result of the Supreme Court’s 2004 decision in United States v. Booker. The Court there ended the mandatory nature of the Guidelines, in order to save their constitutionality under the Sixth Amendment, and made them advisory. As a result, differences have grown up among federal judges on whether they must follow the disparity in sentencing, or whether the Sentencing Reform Act gives them discretion to deviate from it in order to avoid sentences that are “greater than necessary” and to avoid wide disparities in sentences for arguably similar crimes.

A federal judge in Virginia, faced with sentencing Derrick Kimbrough, confronted this sentencing dilemma. Kimbrough, a Gulf War veteran and construction worker, was arrested by city police in Norfolk, Va., on May 24, 2004, and charged with conspiracy with intent to distribute cocaine and possession with intent to distribute it. Prosecutors said that Kimbrough and another man arrested with him had been found with 56 grams of crack cocaine and 921 grams of cocaine powder. Kimbrough pleaded guilty to charges of conspiracy, possession, distribution and having a gun during a drug crime.

All things considered, Kimbrough faced a sentence in a Guidelines range of 228 to 270 months – 19 to 22 ½ years. His defense lawyer urged the trial judge to set a total sentence of 180 months – 15 years. Kimbrough, the lawyer noted, actually had more powder than crack when arrested. The judge, in response, called a sentence of 19 to 22 ½ years “ridiculous,” with the 100-to-1 disparity driving the offense level higher than necessary. The judge sentenced Kimbrough to 180 months, “clearly long enough under the circumstances,” the judge said.

The U.S. Court of Appeals for the Fourth Circuit, in a brief opinion, struck down the sentence. A sentence outside the Guideline range, it had said in an earlier and controlling opinion, was “per se unreasonable” if based on a disagreement with the 100-to1 ratio. The District Court, the Circuit Court said, may not vary from the advisory sentencing range, because that would be “totally…at odds with the will of Congress.” And, it said, a judge may not consider the Sentencing Commission views that the disparity should be narrowed

Petition for Certiorari

Kimbrough’s petition, filed on Sept. 5, 2006, raised two questions: whether a federal judge may consider the impact of the disparity in a given case, or on the views of the Sentencing Commission, and how is the sentencing judge to balance the factors spelled out in the Sentencing Reform Act to avoid “unwarranted disparity.” The U.S. Solicitor General, in a brief response, urged the Court to deny review – a position it had consistently taken in opposing review of other such cases.

Because the Court in the 2006-07 Term had under consideration the validity of sentences that were imposed below Guideline ranges (in Claiborne v. U.S., 06-5618), the Justices held the case, despite suggestions by the Solicitor General that it did not need to do so because the crack-powder disparity was not directly at issue before the Court. After Mario Claiborne died, the Court granted review in Kimbrough’s case, on the disparity issue, and in another below-range case that does not involve the crack-powder disparity, Gall v. U.S. (06-7949. (The Court proceeded to decide another post-Booker Guidelines case, Rita v. U.S., 06-5754, concluding in an 8-1 decision on June 21, 2007, that a sentence within a Guidelines range may be presumed on appeal to be “reasonable.”)

Kimbrough’s counsel in March 2007 had written to the Court to notify it of a deepening of a split in the Circuits, with the Third Circuit and the D.C. Circuit disagreeing with the Fourth Circuit on judicial discretion on the disparity issue. The Court granted review of Kimbrough’s case on June 11, 2007 – ten days before it decided Rita. Oral argument is scheduled for Oct. 2, 2007, at 11 a.m., immediately following argument in the Gall case.

Merits briefs

Kimbrough’s brief on the merits relied primarily upon five core arguments: first, Congress allows federal sentencing judges wide discretion to consider an array of information in choosing a sentence, and this discretion is reinforced by other factors the federal Act requires judges to consider and by the Booker decision making the Guidelines advisory only; second, there is a long tradition of appeals court deference to sentencing courts’ decisions and that has not been eliminated by the Guidelines; third, Congress has never directed the Sentencing Commission to incorporate the 100-to-1 disparity in the Guidelines; fourth, since Congress has mandated only mandatory minimums and maximums, it does not defy Congress’ will to look at factors other than the disparity; and, fifth, the Fourth Circuit’s view has, in effect, made the crack cocaine Guideline mandatory in direct violation of Booker.

“If allowed to stand,” the brief contended, “the Fourth Circuit’s per se rule would violate the Sixth Amendment because it impermissibly restricts district courts’ discretion in crack cocaine cases.. As this Court ruled in Booker, either the Sentencing Guidelines are advisory or they are unconstitutional….The Court can avoid the constitutional problem…by reiterating that the Sentencing Guidelines are not simply ‘effectively advisory,’ but are in fact ‘truly advisory,’ and by placing the sentencing range suggested by the Guidelines on an even footing with the other considerations” specified in the Act – including the “overarching command to impose a sentence no greater than necessary to meet the purposes of sentencing.” The crack-powder disparity does not rise above those other considerations, it contended.

On a practical level, the Kimbrough brief argued that the notion that “crack” crimes are inevitably more serious than “powder” crimes is flawed, since “the majority of crack cocaine defendants are smaller-scale, street-level dealers like Mr. Kimbrough.” The disparity thus “impacts far more low-level traffickers than it does the intended targets of the ratio – the mid- and high-level traffickers who distribute the powder that is turned into crack.”

Only near the brief’s close did it address, in summary fashion, one of the main arguments that have been made repeatedly against the crack-to-powder sentencing disparity: that is, that it has a distinct racial impact, because African-Americans made up the great majority of those accused of crack cocaine crimes. There is, as a result, the brief contended, a growing disparity between sentences for black and white federal defendants. “The practice of meting out punishment that is harsher to one group than another corrodes belief in equal justice under the law,” it concluded.

The United States’ merits brief, defending the crack-to-powder disparity, argued that Congress intended it in the beginning to be a necessary response to the development of crack cocaine “at the forefront of the national drug epidemic.” Moreover, it argued, Congress found crack to be a more dangerous drug than powder cocaine. Congress has taken no action since 1995 to alter the 100-to-1 ratio established in 1986, it noted.

On its legal points, the government brief made four basic arguments: first, Congress has the power to decide on punishment levels for federal crimes and may restrict judges’ sentencing discretion; second, the disparity is a specific policy determination that judges cannot evade even if a judge sought to rely upon other sentencing factors in the Reform Act; third, a sentence is unreasonable “when it rejects a specific congressional mandate,” and, fourth, any change in the 100-to-1 ratio must come from Congress, not from the Sentencing Commission or from sentencing judges.

Because Congress has mandated a binding policy, the brief contended, Kimbrough’s case does not raise the question of the authority of federal judges to impose sentences outside Guidelines ranges. “This case involves a sentencing structure created by Congress directly…”

It argued that “most” federal courts of appeals have agreed with its position that the disparity is a binding policy determination. If Kimbrough’s view were to prevail, the government asserted, “courts would be free to form whatever judgments they like about the comparative severity of crack-cocaine and other drug offenses, seemingly including use of 5:1, 20:1, or other judge-specific ratios, subject only to the applicable statutory minimum and maximum sentences and reasonableness review. That approach is a recipe for widespread disparity, and the Court should reject it as inconsistent with congressional intent.”

The government brief reserved its response to the challenge based on racial impacts to a footnote near the end of the brief. None of those who make that argument in Kimbrough’s case, it said, contend that use of the disparity would be unconstitutional as a form of race discrimination. In addition, it said, “all of the courts of appeals have long since rejected similar contentions,” citing rulings going back to 1992, with Supreme Court review denied in most of those cases.

Amicus briefs filed by the NAACP Legal Defense Fund, the National Association of Criminal Defense Lawyers, and the Sentencing Project and the Center for Study of Race and Law at the University of Virginia, make the racial argument against the disparity. Also filing amicus briefs were the American Civil Liberties Union and the Federal Public and Community Defenders. No amicus briefs have yet been filed on the government’s side.


The Supreme Court has not made a tidy record in dealing with federal Sentencing Guidelines – beginning with its two majority opinions in Booker, looking two ways, constitutionally, on the Guidelines. With last Term’s decision in Rita, and its planned decisions this Term in Kimbrough and Gall, the Court could make notable progress toward clarifying just how much discretion federal judges retain in sentencing, the role of the remaining Guidelines regime and what sentences outside the ranges may qualify as “reasonable” under an advisory regime, and the core meaning of the multiple sentencing factors in the Sentencing Reform Act. The Court up to now has exhibited strong strains of pragmatism in this area, probably reflecting the basic jurisprudential approach of Justice Stephen G. Breyer, long identified with the Guidelines system.

In Kimbrough’s case, if the Court accepts the government’s argument that the crack-to-powder disparity is a matter of a simple legislative directive essentially outside the Guidelines’ advisory system, the fate of that ratio would then continue to be solely in the hands of Congress. An underlying social policy question, if the Court is willing to indulge itself in answering it, is whether the cited racial disparity in cocaine sentencing adds anything to judicial discretion in a way that might trump the hard-and-fast 100-to-1 ratio. Too much might be read into the Court’s repeated refusal to grant review on claims of racial discrimination in the disparity. The racial issue might be the most serious one confronting Justice Ruth Bader Ginsburg, whose votes decided both sides of the two 5-4 Booker rulings.