Kimbrough v. United States--Decision and 2nd Essay

In this 7-2 decision (majority opinion by Ginsburg; dissents by Thomas and Alito), the Supreme Court held that under the Booker rule (543 US 220 (2005)), the cocaine Guidelines, like all of the guidelines promulgated by the US Sentencing Commission, are advisory only, and that the Fourth Circuit erred in holding the crack/powder cocaine disparity (described here) mandatory. Thus, the district court's sentence of 15 years to Kimbrough for the combination of crack cocaine, powder cocaine and firearms violations was within the scope of the district court's discretion, even though it was less than the sentencing range suggested in the Sentencing Guidelines. A district court judge must include the Guidelines range in the array of factors warranting consideration, but in a particular case, s/he might conclude that a "within-Guidelines" sentence is "greater than necessary" to serve the statutory objectives of sentencing (18 USC sec. 3553(a)).

Comment and Flow of Argument

In order really to understand the previous three sentences, you need to read the overview of the case. If you have read it or understand the issues, we can move on.. The issue is a technical one--to what extent federal judges have discretion to veer outside of the Sentencing Guidelines ratio of 100:1 for crack/powder cocaine, but it fits in perfectly with the Gall case, also decided on 12/10/07. But here is the "problem" with the decision: if the Sentencing Guidelines are not "mandatory," are they then "optional" or is there something in between (such as they are presumptively valid but one can veer from them only upon "good" or "justified" or "reasoned" elaboration)?

What the Court did in this decision was basically to say that both the Sentencing Guidelines and the powder/crack ratio are considerations and only considerations for the district court to take into account in sentencing a defendant. The Court continually pointed to the objectives of 18 USC 3553(a), which must guide the judge in sentencing. If s/he has faithfully followed these factors and has given reasons for his/her sentence, a reviewing court will have little ground to overturn the ruling. It might be helpful here, since the decision is now a fairly straightforward one, to print the text of the statute which goes through the "factors" the judge is to consider. You, then, can see precisely the kinds of things that will inform the next generation of criminal sentencing in federal courts.*

[*One further note. Between the time the case was argued and decided, Congress, which can overrule a sentencing guideline change, decided not to overrule the US Sentencing Commission when it lowered, by about 25%, the sentences for crack cocaine described in this and the previous essay. Thus, Congress, tacitly, was going along with "discretion" of the Commission. Why shouldn't judges, then, be able to exercise their discretion with the Guidelines? That was one of the arguments of Justice Ginsburg, brought out well by Linda Greenhouse in her 12/10/07 NY Times article.]

The 3553(a) Sentencing Factors

This federal statute lists seven factors which it says the court "shall consider" in determining the particular sentence to be imposed on a defendant. They are:

(1) the nature and circumstances of the offense and the history and characteristics of the defendant;

(2) the need for the sentence imposed--
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in th emost effective manner;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing range established for--
(A) the applicable category of offense committed by the applicable category of defendant as set forth in guidelines (making reference to the Sentencing Commission guidelines)

(B) in the case of a violation of probation or supervised release, the applicable guidelines....

(5) any pertinent policy statement--
(A) issued by the Sentencing Commission....
(B)..that is in effect on the date the defendant is sentenced;

(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and

(7) the need to provide restitution to any victims of the offense."

Conclusion

Sentencing of federal criminal defendants now will include this statutory inquiry in the context of the "advisory" nature of the Sentencing Guidelines. What effect this will have in practice is hard to tell. I think it will probably have little effect, though it will give judges the sense (and the reality) that they are back in control of the sentencing process and are not just filling in the blanks with a fairly narrow range of discretion.