Legal Commentary

Kimbrough Decision Means What It Says

By TChris

The Supreme Court's Kimbrough decision should have put an end to the argument that federal judges must impose sentences that treat crack cocaine as 100 times worse than powder cocaine by regarding a gram of crack as the equivalent of 100 grams of powder. Kimbrough held that judges are entitled to disagree with that Congressional policy -- a policy that most reasonable people regard as unwise and that even the Sentencing Commission rejects.

Some federal courts have nonetheless stubbornly clung to their own precedent, refusing to give effect to Kimbrough's holding. In a particularly egregious example, the Eighth Circuit vacated a sentence because it believed the judge had no power to substitute a 20:1 crack-to-powder ratio for the 100:1 ratio. After the Supreme Court ordered the Eighth Circuit to reconsider its decision in light of Kimbrough, it reached the same decision.

Today the Supreme Court delivered a smack down to the Eighth Circuit. [more ...]

The Eight Circuit held that a district judge can depart from the 100:1 ratio but cannot substitute his or her own ratio. As the Supreme Court recognized, that's just silly.

As a logical matter, of course, rejection of the 100:1 ratio, explicitly approved by Kimbrough, necessarily implies adoption of some other ratio to govern the mine-run case. A sentencing judge who is given the power to reject the disparity created by the crack-to-powder ratio must also possess the power to apply a different ratio which, in his judgment, corrects the disparity.

Notably, Chief Justice Roberts (joined by Justice Alito) dissented, arguing that the Eighth Circuit's position was consistent with holdings in the First and Third Circuits, and that the question should be given "further attention in the courts of appeals" before the Supreme Court steps in to decide it. The Chief Justice wrote:

Apprendi, Booker, Rita, Gall, and Kimbrough have given the lower courts a good deal to digest over a relatively short period. We should give them some time to address the nuances of these precedents before adding new ones. As has been said, a plant cannot grow if you constantly yank it out of the ground to see if the roots are healthy.

But if the lower courts continue to get it wrong, individuals will serve much longer sentences than their sentencing judges deem fair, a fact that doesn't seem to disturb the Chief Justice. The majority had little patience for the Chief's willingness to perpetuate bad law, particularly bad law that is so directly at odds with recent Supreme Court precedent.

The dissent says that "Apprendi, Booker, Rita, Gall, and Kimbrough have given the lower courts a good deal to digest over a relatively short period." ... True enough--and we should therefore promptly remove from the menu the Eighth Circuit's offering, a smuggled-in dish that is indigestible. ... If the error of [the 1st, 3d, and 8th Circuit] opinions is, as we think, evident, they demonstrate the need to clarify at once the holding of Kimbrough.

Thank you, majority, for taking the time to hold that Kimbrough means what it says.

Full post as published by TalkLeft on January 21, 2009 (boomark / email).