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Court Examines Cocaine Sentence Disparities

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By ROBERT BARNES, The Washington Post

Published: October 3, 2007

WASHINGTON - A government attorney told the Supreme Court on Tuesday that a federal judge cannot ignore Congress' intent that trafficking in crack cocaine should carry tougher penalties than selling powder cocaine.
Deputy Solicitor General Michael Dreeben said a judge who ignores congressional will on the issue creates 'a textbook example' of unreasonable sentencing.

The crack cocaine penalty case is one of two the court tackled Tuesday in an attempt to provide more clear direction in balancing the discretion given to judges with federal sentencing guidelines that the court declared in 2005 are advisory rather than mandatory.

At issue is a 1986 law, enacted after University of Maryland basketball star Len Bias' overdose death and with a rising crack epidemic, that established a 100-to-1 disparity in penalties. Trafficking in 5 grams of crack carries a mandatory five-year term, but it takes 500 grams of powder cocaine for the same sentence.

Those disparities have been criticized because the effect is a law that more severely affects blacks. According to the U.S. Sentencing Commission, more than 80 percent of crack dealers convicted in federal court last year were black and about a quarter of cocaine dealers were black.

The crack cocaine case involves Derrick Kimbrough, a Gulf War veteran arrested in Norfolk, Va., with 56 grams of crack cocaine and 92.1 grams of powder cocaine.

Under the guidelines, Kimbrough faced 19 to 22 1/2 years, driven by higher sentences for crack, though he had almost twice as much powder cocaine. His lawyer noted the sentencing commission's call to reduce the disparity. U.S. District Judge Raymond Jackson agreed, sentencing Kimbrough to 15 years.

It appears crack sentencing guidelines will change regardless of the court's decision. The U.S. Sentencing Commission in April voted to lower the federal minimum sentence for crack. The recommendation is effective Nov. 1 unless Congress intervenes.

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