High Court Rules on Drug Sentencing Disparities A recent U.S. Supreme Court ruling gives federal judges more discretion when sentencing for crack cocaine and cocaine powder offenses. Harvard Law Professor Charles Ogletree and Julie Stewart, of the advocacy group Families Against Mandatory Minimums, discuss implications of the high court's ruling.
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High Court Rules on Drug Sentencing Disparities

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High Court Rules on Drug Sentencing Disparities

Law

High Court Rules on Drug Sentencing Disparities

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MICHEL MARTIN, host:

I'm Michel Martin, and this TELL ME MORE from NPR News.

Later in the program, our money experts on the president's plan to help those stuck in the subprime mortgage mess. Who does it help? And a special Mocha Moms on the recent surge in unmarried motherhood - what's behind it?

But first, two developments that could change the way sentences are handed down for drug crimes. Since the mid-1980s, federal sentencing guidelines have given judges little discretion in setting sentences in drug crimes. Over the years, those guidelines have come under increasing attack, especially because they impose much harsher penalties for selling crack cocaine than for powder cocaine. Civil rights activists have complained for years that many of the sentences are excessive and especially unfair to African-Americans, who are more likely to be convicted for peddling crack. But yesterday, the Supreme Court issued a ruling giving federal judges more discretion in how they arrive at sentences.

Here to talk more about this is Harvard Law Professor Charles Ogletree. He's also the founding and executive director of the Charles Hamilton Houston Institute for Race and Justice. He's on the line with us from Los Angeles. And here with me in our Washington studio, Julie Stewart. She's the president of a D.C.-based advocacy group, Families Against Mandatory Minimums. Welcome to both of you. Thanks so much for speaking with us.

Professor CHARLES OGLETREE (Law, Harvard; Founding and Executive Director, Charles Hamilton Houston Institute for Race and Justice): Hello, Michel.

Ms. JULIE STEWART (President; Founder, Families Against Mandatory Minimums): Thank you. Good to be here.

MARTIN: Professor Ogletree, you were kind enough to stop by and talk to us about the upcoming Supreme Court sessions, so I want to start with you. Tell us about the ruling in these two cases. I take it that the core of the ruling - this isn't based on sympathy for people convicted of drug crimes. So what was the underlying principle behind these rulings?

Prof. OGLETREE: A couple of important factors: first, the court affirmed its earlier decision of the case called Booker, that sentencing guidelines are not mandatory but advisory. And the second thing they did in a case out of Virginia, the Kimbrough case, and another case out of Iowa, the Gall case, was to conclude that judges has discretion to change the sentences, as long as they were reasonable.

In the first case, the Kimbrough case, Justice Ginsburg wrote the opinion that made clear that the disparity between crack cocaine and powder cocaine does not have the same sort of scientific quality of a differentiation that was so clearly stated in the 1980s. She says that 20 years ago, it might have been that people thought crack was more dangerous and more deadly and it caused more crime, but those studies are now not very persuasive. And in that case, the judge - in the case - the Kimbrough case, decided to reduce the penalty of this African-American, saying the judges might see - without being able to change the law - see that the sentencing range was too high and could reduce it to a more reasonable penalty.

MARTIN: Well, you said in 2005 that the justices said that the guidelines were only guidelines, so why was there a need for this additional ruling?

Prof. OGLETREE: Well, because I - two things. There's still laws on the book that create a disparity between crack cocaine and powder cocaine of one hundred to one, and the Sentencing Commission, thankfully, reduced that in November 1st. And they are scheduled to make another decision on Tuesday to hopefully make these reductions retroactive. That would impact over 20,000 men in prison over the next few years.

MARTIN: And, wait. Let's talk about that in just a minute. I just want to get Julie in the conversation.

Julie, your group is called Families Against Mandatory Minimums. I assume that the whole point of these guidelines originally was fairness, to see that people aren't sentenced in very different ways in one part of the country over another, that you say maybe you've got, you know, the good-old-boy system or whatever-it-takes effect in some places. So, it seems to me that that was a worthy goal. So why is it that you and other activists are so opposed to these mandatory minimums?

Ms. STEWART: Well, they're two different systems. But the sentencing guidelines that the justices addressed yesterday are, in fact, not a bad system. It's trying to create some equity in sentencing across the country so that a defendant in California, the defendant in Texas would get more or less the sentence from more or less the same crime.

But what happened is that when they created the guidelines back in 1984 and 1986, they were finishing - Congress, at that time, adopted mandatory minimum penalties for drug offenses. And the Sentencing Commission, instead of sticking with its own system of guideline sentences for all crimes, including drugs, adopted the same quantity levels that Congress was enacting at that time. So the commission took five grams to trigger five years in prison, just as Congress did with its statutory mandatory minimums.

MARTIN: And just to mention, five grams is about the amount of sugar in a sugar packet, (unintelligible).

Ms. STEWART: Two Sweet'N Low packages, roughly, is five grams. That's right. So the system from the get-go under the sentencing guidelines created this disparity that Dr. Ogletree just mentioned, that is really ridiculous and completely unjustified.

MARTIN: But does this mean that the mandatory minimums are still in effect?

Ms. STEWART: It does. Unfortunately, yesterday's ruling has absolutely no impact on the statutory mandatory minimums, that - the laws that Congress passed in 1986 and 1988 that affect all federal drug crimes. This is a terrific ruling from the court, but it only affects the guideline portion of someone's sentence, and it gets a bit technical, but it makes a difference.

MARTIN: If you're just joining us, we're talking about two developments that affect federal sentencing, especially drug crimes. With me are Harvard Law Professor Charles Ogletree and Julie Stewart, president of Families Against Mandatory Minimums.

Professor Ogletree, you mentioned that, just about a month ago, the U.S. Sentencing Commission changed the sentencing guidelines in an effort to reduce the crack versus powder disparity. And today, the commission's going to decide whether to make the change retroactive. As you mentioned, it could shorten prison terms for nearly 20,000 inmates. Do you think that the court's decision will influence what the Sentencing Commission might decide?

Prof. OGLETREE: It will. They may never acknowledge that, but it will because when the Supreme Court that has a group of people who are liberal and conservative - Justice Scalia, Justice Kennedy, Chief Justice Roberts were all part of the majorities in these cases - that's a powerful signal that there is something wrong, and that this court is correcting it.

The Sentencing Commission is composed of judges, lawyers, a whole nonpartisan group. And I think the work they've already done - November - is a prelude to what they should be doing on Tuesday to reduce this even more and to make it retroactive. That's the only sane thing to do, given the fact that the court has given a clear path to go through that, saying we're going to let the trial judges who see these folks come to court have the discretion to impose reasonable sentences.

And the appellate courts can only review them on an abuse of discretion. If the judge did not go beyond the legal authority, then it is reasonable and will stand. So this is a brand new day in sentencing, and will change, I hope, the lives of, you know, hundreds of thousands of people, and also create fairness. People will be punished. This doesn't mean people won't be punished for their crimes. It means that the punishment will be more fairly distributed along the lines of poverty and race, and not, in a sense, punish people because of their choice of drugs and because of their race with this crack cocaine.

MARTIN: But I want to talk to you about that, professor, because the debate often centers on whether these guidelines are unfair and have a disproportionate impact on the African-American and increasing Latino community. But when crack first exploded in the early 1980s, wasn't it a lot of African-American lawmakers and city leaders who were pushing for the tougher sentences possible?

Prof. OGLETREE: They were there. They should have been there, because they were seeing - in places, like New York and Chicago and Detroit and Los Angeles - an unprecedented level of crime and violence associated with one drug: crack cocaine. And they wanted the government to do something to protect the citizens. But they weren't in favor of a disparity between crack cocaine and powder cocaine that was 100 times more punitive for crack cocaine than powder cocaine. That was not their deal.

But members of Congress in the 1980s, during the Reagan administration, said, a-ha, you want to get tough on crime? You introduce it. We'll increase it. There was never an intent by any member of the Congressional Black Caucus who supported this to have it so disproportionate. But once it was passed, now they all recognize that it was a bad judgment. It was a rush to judgment, and now there's uniform belief that we need to have a more sane and reasonable drug policy, and still being tough, but being fair - as the operative word - going forward.

MARTIN: How do you interpret the 7-2 vote on the court?

Prof. OGLETREE: Well, it tells you one thing. For our - Scalia has always been clear that there are certain things that judges can and cannot do. And that's why he was, you know, one of the fierce voices in getting rid of the mandatory provisions of the sentencing guidelines. And number two, it has nothing to do about liberal or conservative. It's more about, you know, the roles of Congress, the roles of the executive branch and roles of the court. And I think it's more an inside baseball discussion than it is at all - this is not a liberal opinion. It's the sane, reasonable, sensible opinion correcting a mistake that had been allowed to go unchecked for almost over 20 years.

And also, it's a sign that the court's going to continue to make sure that it interferes - well, I should say, that's not the proper for - injects itself into these discussions and to make sure that there is a proper role for the legislative branch, the executive branch and the juridical branch. And neither one has command over the other.

Keep in mind, the mandatory minimums, as you've heard, aren't touched at all by this. So there still will be very tough penalties. And those who believe in those tough penalties will see this not as a loss, but as the clarification of what can and cannot be done.

MARTIN: So Julie, talk to me a little bit more in our last couple of minutes, if you would, about what you think needs to happen next in order to make the system more fair from your perspective. And if you'd also give us a discussion about why you feel mandatory minimums need to be adjusted. I think a lot of people would say that that's just - its society's appropriate expression of disapproval of certain conduct, and it is method of ensuring that there's at least some uniformity across the country, and that you know, personal preferences, demographics, personal profile doesn't play too much of a role. So talk to me a little bit, if you would.

Ms. STEWART: Well, as I said, I think sentencing guidelines aren't a bad system, but mandatory minimums are. And mandatory minimums sentences are the ones that Congress has decided upon. And they're really sort of cherry picking which crimes they believe are - that judges, literally, they can't be trusted to sentence, and so they have to decide what the appropriate sentence should be. And primarily, it's drugs, guns, a little bit of sex offenses. And really, Congress should not be in the sentencing business. And I think that with the court said yesterday is just that: judges needs discretion in order to sentence people fairly.

And so from my perspective, where this goes next is to Congress. And I'm very curious how Congress will respond, because I think on the one hand, there's a lot of people who don't trust judges in Congress, and that bothers me tremendously. On the other hand, I think that this might give some of those on the Hill who actually care about this issue and want to see mandatory minimums sort of reformed at a minimum if not done away with give them some ammunition to do that with.

MARTIN: All right. Julie Stewart is a president of the group Families Against Mandatory Minimums. She was kind enough to join me here in our Washington studio.

We were also joined by Charles Ogletree, professor of law at Harvard University, the executive director of the Charles Hamilton Houston Institute for Race and Justice. He was kind enough to join us on the phone from Los Angeles.

Thank you both so much for speaking with us.

Prof. OGLETREE: Thank you.

Ms. STEWART: Your welcome.

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