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Nearly 20,000 people convicted of drug offenses could find out today if they will be spending less time in prison. The U.S. Sentencing Commission plans to vote on a change in the rules. It would reduce the extra punishment that is given for crimes involving crack as compared to the sentences for powder cocaine. And the commission is considering whether to change those rules retroactively.

The vote comes just a day after the Supreme Court ruled that federal judges may give lighter sentences to crack defendants than required by old federal guidelines.

Here's NPR legal affairs correspondent Nina Totenberg.

NINA TOTENBERG: The court's ruling in the crack case was one of two in which the justices made clear that federal district court judges have wide discretion in sentencing as long as they stick to whatever mandatory minimums Congress has established. The decisions in addition were something of a rebuke to federal appellate courts for second-guessing the sentencing judges.

Sentencing expert Douglas Berman is a law professor at Ohio State University.

Professor DOUGLAS BERMAN (Ohio State University): The bottom line is they told district courts we meant it when we said the guidelines are advisory and you have more authority, district judges, because you know the unique circumstances of the case.

TOTENBERG: The vote was seven to two in both cases, with Justices Clarence Thomas and Samuel Alito in dissent. Case one involved a man named Brian Gall, who used Ecstasy in college and became ensnared in a drug ring to support his habit. After seven months, though, he stopped using and dealing drugs, telling the ring leaders he wanted nothing more to do with them. Then he devoted himself to his studies, graduated from college and started his own business. Four years later, the drug ring leaders were arrested and implicated Gall in an effort to win favorable treatment from prosecutors. Gall, contacted by federal agents, admitted his one-time involvement and pled guilty.

Based on Gall's drug-free record since withdrawing from the drug conspiracy, his use at the time, and his stellar record as a community member since then, the judge sentenced Gall to three years probation instead of the guidelines recommended three-year jail term. The judge also cited the probation report showing that Gall had no other criminal record, that he was not an organizer or leader of the drug ring. A federal appeals court, however, reversed the sentence as too light and Gall appealed to the Supreme Court.

Yesterday, the justices ruled that the appeals court had been wrong to substitute its judgment for that of the trial judge. Writing for the seven justice majority, Justice John Paul Stevens said the trial judge had considered the guidelines before deviating from them and that his explanation for departing from the guidelines was reasonable and entitled to deference.

In case two, the court dealt with the racially inflammatory issue of disparate sentences for crack versus powder cocaine. Under the sentencing guidelines since the 1980s, crack defendants, who are mainly black, have been punished far more severely than powder cocaine defendants who are mainly white. Jail terms for crack offenders have usually been 50 percent longer than for powder cocaine offenders. Judges have sometimes tried to ameliorate the disparities as the judge did in this case.

The facts were these. Defendant Derrick Kimbrough, a Gulf War veteran with no felony record, was charged with selling 50 grams of crack while carrying a gun. Under the statute, the judge was required to sentence Kimbrough to a minimum term of 15 years in prison. Prosecutors asked for an additional four and a half to seven years under the sentencing guidelines. The judge, noting that the 15 years along was twice the time Kimbrough would've been sentenced to if he'd sold powder cocaine instead of crack, concluded that the statutory minimum was sufficient punishment. He refused to add on the extra time called for by the guidelines. But a federal appeals court overruled the judge, declaring that any deviation from the guidelines was per se unreasonable. The Supreme Court, however, said the appellate court was wrong.

In an opinion written by Justice Ruth Bader Ginsburg, the court noted that when Congress initially made penalties for crack harsher than powder cocaine, it was widely believed crack was more dangerous. Research done by the Sentencing Commissions since then, she noted, has disproved that notion. In addition, the Sentencing Commission has concluded that the disparate sentences tend to punish low-level offenders more severely than major drug traffickers. And judges are entitled, said Ginsburg, to these facts into account when sentencing defendants.

The Sentencing Commission itself has now moved to ease the disparities, reducing the penalties somewhat for crack offenders. Today the commission is to vote on making the new guidelines retroactive. If the commission votes to go ahead, the average sentence would be reduced 17.7 percent on as many as 19,500 crack offenders now serving prison terms. Translated into years, that would mean an average reduction of two years, from 12 and a half to 10 and a half years in prison.

Nina Totenberg, NPR News, Washington.

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