High court gives judges discretion in sentencing
'Advisory only' ruling centers on crack cocaine case
P-I STAFF AND NEWS SERVICES
http://seattlepi.nwsource.com/local/343053_crack11.html

WASHINGTON -- The Supreme Court on Monday enhanced the power of federal district judges to use their discretion in arriving at sentences in criminal cases as it upheld a relatively light sentence imposed on a crack cocaine distributor.By 7-2, the court held that "the cocaine guidelines, like all other guidelines, are advisory only," in the words of Justice Ruth Bader Ginsburg, who wrote for the majority. She cited a 2005 Supreme Court decision called Booker that made "mandatory" sentencing guidelines advisory.

Justice Samuel Alito, who with Justice Clarence Thomas dissented, said that after Monday's decision, "sentencing disparities will gradually increase."

The decision was announced ahead of a vote scheduled for Tuesday by the U.S. Sentencing Commission, which sets the guidelines. That vote could result in cutting prison time for as many as 19,500 federal inmates convicted of crack crimes. About 60 of the inmates were sentenced in Western Washington and 31 in Eastern Washington.




Justice Ruth Bader Ginsburg, writing for the majority in Monday's case, said a 15-year sentence given to Derrick Kimbrough of Norfolk, Va., was acceptable, even though federal sentencing guidelines called for Kimbrough to receive 19 to 22 years.

"In making that determination, the judge may consider the disparity between the guidelines' treatment of crack and powder cocaine offenses," Ginsburg said.

The issue has a strong racial component. Kimbrough, a veteran of the first Gulf War, is black, as are more than 80 percent of federal defendants sentenced in crack cases. By contrast, just over a quarter of those convicted of powder cocaine crimes last year were black.

"The prosecution for any crack offense falls heavily on people of color," said Federal Public Defender Tom Hillier in Seattle. He decried the fact that crack defendants are subjected to heavy mandatory minimum sentences "for an incredibly small amount of drugs. But if you go across the bridge to Bellevue, a white kid has to have 500 grams (more than a pound) of powder cocaine to be subject to the same penalties.

"It has an indisputably unfair racial import," Hillier said.

The Sentencing Commission recently changed the guidelines to reduce the disparity in prison time for the two crimes. New guidelines took effect Nov. 1 after Congress took no action to overturn the change. Tuesday's vote is whether to apply the guidelines retroactively.

If retroactivity is granted, thousands of inmates sentenced on crack charges around the country could return to court to get a reduction in sentence. But the timing of possible release would be spaced out over a number of years.

For the 60 crack inmates sentenced in Western Washington, five would be eligible for immediate release, three for release in year one, four in year two, six in year three, 12 in year four, six in year 15, and 13 in year six or later, according to the Sentencing Commission.

A second case decided by the Supreme Court on Monday did not involve cocaine. The justices upheld a sentence of probation for Brian Gall for his role in a conspiracy to sell 10,000 pills of Ecstasy.

The guidelines said Gall should have been sent to prison for 30 to 37 months.

P-I reporter Paul Shukovsky contributed to this report. This report also includes information from The New York Times and The Associated Press.