Reefer Madness

Illustration by Roy Tompkins

Back in 2005, in a case styled United States v. Booker, the U.S. Supreme Court made a revelatory ruling: Federal sentencing guidelines, laying out mandatory ranges for a host of crimes, could now only be considered "advisory," lest they run afoul of constitutional protections. Drug-policy reformers and foes of mandatory minimum sentences embraced the ruling, although it would ultimately lead to trouble. The guidelines (and their evil twin, the man-min sentence) were devised in the Eight­ies to rein in federal judges who were handing out wildly disparate sentences for seemingly similar crimes. The idea was to bring uniformity to federal sentencing and, ironically, to help prevent punishments that didn't fit the crimes. The means of ensuring this cookie-cutter "justice" was to replace judicial discretion with a range of predetermined outcomes. Sold a crap-load of pot? Ten-to-20 years. Committed securities fraud? Eh, five-to-10.

And therein lies the rub: With judicial discretion removed, a defendant's unique circumstances became less important than the plain language of the criminal charge. The Supremes' Booker decision ostensibly dismissed that brand of justice in favor of returning discretion to the mix. But if the guidelines aren't mandatory, then what function do they serve? If they're advisory, can we ensure uniformity in sentencing? How much "discretion" is too much, and who decides? And if there's a limit to judicial discretion, doesn't that make the guidelines mandatory? Messy, eh? In two cases pending before the high court – Gall v. U.S. and Kimbrough v. U.S. – the justices must confront a looming oxymoron: Can a sentencing guideline be both advisory and mandatory?

For a brief time in college, Brian Michael Gall sold a lot of Ecstasy. But after mere months in the game, Gall, then 21, straightened himself out. In late 2000, he left the drug trade, went to rehab, and refocused on his studies. But the feds came calling three years later, asking whether he had sold drugs while in college. Gall said yes and eventually gave up certain details of his drug-dealing "conspiracy" days. In 2004 he was charged as a member of that conspiracy, which, under federal sentencing guidelines, carried between 30 and 37 months in the federal pen. Noting Gall's young age and complete turnaround, though, U.S. District Judge Robert Pratt sentenced Gall to three years of probation – a sentence, he wrote, "'sufficient, but not greater than necessary,' to satisfy the relevant purposes of punishment." The government appealed, and the 8th U.S. Circuit Court of Appeals reversed, calling Pratt's "100% downward variance" from the guidelines an "extraordinary reduction" that must be "supported by extraordinary circumstances." In other words, Gall's turnaround simply didn't cut it.

In the second case, Derrick Kimbrough, an Iraq war veteran, was popped for selling crack cocaine. He also had a gun. With the amount of crack he had, he automatically faced a 10-year man-min. But, citing Kim­brough's history and, importantly, the lunacy of the draconian 100-to-one crack-to-powder-cocaine sentencing guideline disparity (that is, possession of just 5 grams of crack can trigger a five-year man-min, while it would take 50 grams of powder coke to net the same sentence), Virginia U.S. District Judge Raymond Jackson split the difference, sentencing Kimbrough to the mandatory 10 years, plus five for the gun possession, but eschewing the additional four years Kimbrough would have drawn under the crack crime sentencing guidelines. The 4th U.S. Circuit Court of Appeals reversed Jackson's decision, opining that he overstepped discretionary bounds by failing to impose additional time for the crack offense. The nerve.

During oral arguments before the court Oct. 3, Gall's attorney, Jeffrey Green, argued that the "extraordinary circumstances" test the appellate court applied was wrong – if the guidelines are advisory, then Pratt should have been able to articulate his reasons for lowering the sentence (which he did) without appellate court interference. But what would happen, Justice Anthony Kennedy asked, if the appellate court had intervened in Gall's case because the judge had imposed a sentence harsher than the guidelines? Green said he'd likely be making a far different argument in that case – a response that drew laughter in the court, while underscoring the conundrum the court faces in both Gall and Kimbrough. "[W]ell, let's say you have a judge: In one case he says because this is a ... young defendant, I'm going to give him a lighter sentence, and in the next case says, you know, I don't think age is a fact that I should consider," Chief Justice John Roberts asked Green. "[A]ll of those cases, I take it, are upheld under your view?" Not necessarily, Green replied. If a judge appeared to be "seesawing back and forth" in sentencing decisions, the appellate court could take note of that for further review – but a downward departure alone wouldn't do it. So what should the court do? According to Green, the court should allow judges to depart downward – because of the case's facts or because they disagree with the guidelines on policy – but only so long as they can "rationally" articulate their reasons for doing so.

Not surprisingly, Deputy Solicitor General Michael Dreeben, arguing on behalf of the feds, found Green's argument untenable. In reviewing sentences, Dreeben said, appellate courts have "generally relied on a 'I know it when I see it' kind of approach, which I think is reasonable in this area of the law, because you see sentences that are simply out of kilter with what the guidelines range is, and it raises a question in the court's mind: Why?" Justice Antonin Scalia was clearly skeptical of Dreeben's argument: "We ... made it very clear that the guidelines are advisory, and there is ... no way to maintain that with the ... kind of approach that you're offering," he said. But, Dreeben responded, a starting point for the appeals court to "determine whether a sentence is excessive," would be to compare what the sentencing judge did to what the guidelines range state. Scalia, still doubtful, asserted, "Then ... you're just blowing smoke when you say that the guidelines are advisory."

The judges were even more skeptical of Dreeben's defense of the 100-to-one crack-powder disparity, which, Scalia noted, "strikes me as utterly unreasonable." Dreeben exhibited an overeager defense of the ratio, which the U.S. Sentencing Commission has abandoned in an amendment that will take effect Nov. 1, unless Congress acts to block it. Congress set up the scheme, Dreeben argued, mandating that sentences for crack "generally exceed" those for powder, based on the belief that crack was more serious. But Roberts wasn't buying: "Generally exceed," he said, is "pretty far from 100 to 1."