Crack vs. powder cocaine sentencing gets Supreme Court hearing

WASHINGTON — Gulf War veteran Derrick Kimbrough defended his country. Then he dealt drugs.

Now he's caught in a courtroom crossfire, and the result could shape the future of controversial sentencing rules that punish crack cocaine users far more severely than their powder cocaine counterparts.

On Tuesday, the Supreme Court will consider Kimbrough's case. Technically, it revolves around judicial discretion in sentencing. More concretely, it focuses on whether judges can avoid giving harsher punishments to crack users.

For sentencing purposes, the rules equate one gram of crack cocaine to 100 grams of powdered cocaine. Essentially, the judge who sentenced Kimbrough ignored this punitive standard.

"The judge said, this crack/powder thing is just nuts," said Harvard Law School Professor Carol Steiker.

Other judges agree. So does the U.S. Sentencing Commission, which has repeatedly recommended revising the 21-year-old cocaine sentencing rules. So do members of Congress such as Reps. Alcee Hastings, D-Fla., and Sheila Jackson-Lee, D-Texas, who've again introduced a bill to even out cocaine sentences.

Congress, however, hasn't been willing to roll back the get-tough sentencing system imposed at the height of the Reagan administration's war on drugs. The Bush administration, moreover, insists that judges must be kept in harness.

"If each sentencing judge is permitted to adopt whatever policy he deems appropriate with regard to individual drugs, defendants with identical real conduct will receive markedly different sentences," Solicitor General Paul Clement argued in legal filings.

In the past five years, about 25,000 defendants have been sentenced in federal court on crack cocaine charges. On average, their drug sentences are about 50 percent longer than those imposed on powder cocaine defendants.

This translates to an average of about 40 additional months behind bars. Most of those who're sentenced for crack cocaine are African-American men, as is Kimbrough.

Last year, 81 percent of those sentenced on federal crack charges were African-Americans. Only 27 percent of those sentenced for powder cocaine were African-Americans.

"It results in thousands of additional years of lives spent in prison and in incalculable, unquantifiable losses to the affected defendants and their families," Kimbrough's public defender, Michael Nachmanoff, declared in a legal filing.

A 39-year-old former construction worker who served three years in the Marine Corps, Kimbrough is now doing time at the low-security Petersburg Federal Correctional Institute in Virginia. Whatever the Supreme Court decides, Kimbrough will be in prison for at least another decade.

Virginia police caught Kimbrough in 2004 when officers spied him in a car near a known drug-dealing area. He tried to run but was caught carrying bullets and $1,823 in cash. He pleaded guilty to charges of possessing firearms, as well as crack and powder cocaine. He didn't have any prior felonies.

Because of the crack possession, Kimbrough faced a sentence of 19 to 22 years. Instead, the judge called the crack guidelines "ridiculous" and sentenced Kimbrough to 15 years.

"This case," said U.S. District Judge Raymond A. Jackson, "is another example of how the crack cocaine guidelines are driving the (sentencing) to a point higher than necessary to do justice."

After the judge reduced Kimbrough's sentence, however, the government appealed the ruling and won, forcing Kimbrough to bring his case to the Supreme Court.

The closely watched case, Kimbrough v. United States, doesn't by itself challenge the crack cocaine sentencing guidelines. The guidelines are sometimes called the "100 to 1" rule, because that's the equivalency ratio between powdered and crack cocaine possession for sentencing purposes. Congress set the rules, and the Supreme Court isn't being asked to strike them down.

Instead, Kimbrough's case will determine whether judges sentencing cocaine defendants can take into account criticism of the crack guidelines and set lower sentences. Among the staunchest critics has been the U.S. Sentencing Commission, whose guidelines are advisory but influential.

"The current quantity-based penalties overstate the relative harmfulness of crack cocaine compared to powder cocaine," the Sentencing Commission advised in its May 2007 report to Congress, adding that the penalties "sweep too broadly" and "overstate the seriousness" of most crack offenses.

The Bush administration responds that it should be up to Congress to revise the crack sentencing rules.

The court's politics on this case are especially complicated.

Justice Stephen Breyer once served on the Sentencing Commission, giving him both insight and an emotional stake in the case's outcome. The court's two most stalwart conservatives, Justices Antonin Scalia and Clarence Thomas, appear more sympathetic to giving judges sentencing leeway than their law-and-order reputations might otherwise suggest.