It used to be that judges had wide discretion in sentencing, but in 1984, Congress set up a commission to establish guidelines that would promote more uniformity in sentencing. For all practical purposes, the guidelines were binding. But two years ago, the Supreme Court ruled that the guidelines could only be advisory, otherwise they would be unconstitutional.
Since then, however, federal prosecutors, backed by the appellate courts, have continued efforts to limit trial judges' discretion, telling them that any significant deviation from the guidelines was not acceptable.
On Monday, by a 7-to-2 vote, the Supreme Court basically put an end to that practice, telling the lower courts that advisory means exactly what it says: that judges should consider the guidelines, but not be bound by them.
The court's first ruling Monday involved the widely disparaged disparity in sentences for people convicted of crack cocaine versus powder cocaine crimes. Under the federal sentencing guidelines, crack cocaine offenders have typically been sentenced to 50 percent more jail time than powder cocaine offenders.
In the case before the court, a judge sentenced a Gulf War veteran with no felony record to 15 years in prison for dealing 50 grams of crack — the mandatory minimum under the statute. But the judge refused to add on an additional four and a half years required under the guidelines.
The 15-year penalty was enough punishment, he said, adding that the guidelines were ridiculous. A federal appeals court reversed the sentence, declaring that anything outside the guidelines is per se unreasonable. But Monday, the Supreme Court sided with the trial judge.
Writing for the Court, Justice Ruth Bader Ginsburg emphasized that the guidelines are purely advisory. She said that a sentencing judge must consider the guidelines but he is not bound by them. Although Congress in the 1980s apparently believed crack more dangerous, she said, subsequent research by the sentencing commission has disproved that theory. And judges are free to try to ameliorate the enormous disparity, as long as they stick to the mandatory minimums called for by the statute.
In a second case Monday, the court upheld a sentence of probation only for an Iowa man named Brian Gall who had been part of a drug Ecstasy ring while in college. Gall had been addicted to drugs himself and, after buying and selling Ecstasy for seven months, he had some sort of a wake-up call. He quit and told the dealers he'd been doing business with that he wanted nothing more to do with them. Gall went on to graduate from college and start a successful business.
Five years after Gall quit the ring, the drug dealers were caught and implicated him to win favor with prosecutors. Contacted by federal agents, Gall admitted his one-time involvement, and after he was indicted, pleaded guilty. The district court judge rejected the three-year sentence called for by the sentencing guidelines and instead sentenced Gall to three years' probation.
But a federal appeals court overruled the sentence, calling it unreasonably light. On Monday, the Supreme Court disagreed, calling the decision reasonable. Justice John Paul Stevens, writing for the seven-Justice majority, said the appellate court had abused its discretion by substituting its judgment for that of the trial judge, who had a better appreciation of the facts.
The dissenters in both of Monday's decisions were justices Clarence Thomas and Samuel Alito.
The rulings will likely lead to less uniformity in sentences. Trial judges will have more discretion to sentence as they see fit, meaning that there is the possibility for both lighter and harsher sentences. For the most part, though, the scales of justice are likely to tilt a little more toward lighter sentences. That's because prosecutors have, until now, been very successful in appealing sentences they consider too light and getting them reversed, as they did in the two cases Monday. Now the Supreme Court has weighed in and told the appellate courts to butt out.
In addition, the U.S. Sentencing Commission has recently changed its own crack and powder cocaine guidelines in an effort to reduce the disparity between penalties for the two drugs. On Tuesday, the commission is set to vote on making the new guidelines retroactive. That would cut the disparity by 17.7 percent for as many as 19,500 prison inmates. On average, that would mean a reduction from 12 and a half years in prison to 10 and a half.