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The District Court gave Mr. Kimbrough only 15 years in prison. The Fourth Circuit Court of Appeals reversed the District Court – It held that Mr. Kimbrough should have gotten more than 19 years simply because he was a crack dealer. Mr. Kimbrough appealed to the Supreme Court.

So what’s going on in this case?

When Mr. Kimbrough was sentenced, the District Court decided that a sentence establish by the Sentencing Guidelines was too harsh. Based on its disagreement with the ratio in the sentencing guidelines, the District Court sentenced Mr. Kimbrough to the mandatory minimum sentence of 15 years in prison. It didn't hurt Mr. Kimbrough's case that "he had no prior felony convictions, that he had served in combat during Operation Desert Storm and received an honorable discharge from the Marine Corps, and that he had a steady history of employment." The Fourth Circuit Court of Appeals believed that disagreement with the ratio in the sentencing guidelines can never be a valid reason to sentence a criminal to less than the Guideline recommendation. Thus, Mr. Kimbrough's case was reversed so that he would spend 19 years in prison according to the Sentencing Guidelines.

What are the sentencing guidelines again?

Here's a handy dandy summary compiled by CLARINET.WOODWINDS.COM: The Sentencing Guidelines

So why was there a disagreement in this case?

The District Court disagreed with one of the basic principles enshrined in the Sentencing Guidelines: 1 gram of crack is the equivalent to 100 grams of cocaine. This means that selling an equal weight of crack gets about 3 to 6 times the amount of prison time.

When this idea was finest enshrined in the law, the United States was at the beginning of the crack epidemic. Big cities, especially New York, Chicago, Los Angeles and Washington, D.C., were all suffering from a rise in drug related violence in 1986. Much of this was being blamed on crack. Crack was the hot new drug. Addictive, with a short and intense high, and easily processed from powdered cocaine, crack was considered one of the most dangerous drugs on the illegal market. It was also overwhelmingly marketed to (and sold by) poor black youth in America’s inner cities.

Congress responds to popular wisdom much more quickly than it responds to scientific studies. Popular wisdom was that crack was devil incarnate. Congress then concluded that crack was 100 times worse than cocaine – and Congress enshrined this conclusion in a law.

Congress decided to establish a two-tier system for mandatory minimum sentences for "major" and "serious" drug offenders. In the two-tier system, the method for distinguishing major and serious drug offenders is the weight of the drugs involved. Put simply, the more cocaine you sell, the longer your minimum sentence will be. But you can sell 100 times fewer grams of crack, and get the same at minimum sentence.

For whatever reason, the sentencing guidelines adopted Congress's ratio when creating the sentences for criminal drug offenses. It seemed like a good idea at the time. Like a bridegroom with an impending wedding, the Sentencing Commission has had second thoughts.

It turns out that many of Congress's assumptions about crack were wrong. First, crack was not relatively 100 times more harmful than cocaine. It never became associated with substantially more violence than cocaine. Second, the drug smuggler's method of choice for cocaine smuggling is powdered cocaine. Crack, on the other hand, is mostly made from powdered cocaine by low-level drug dealers. Thus, the low-level crack dealers could get a higher sentence than high-level cocaine smugglers just because the low-level dealers processed the cocaine into crack. Third, white people don't typically use or distribute crack. Black people, as a demographic, sell and use crack more. Thus, black drug dealers go to prison for much longer sentences than their white drug-dealing counterparts. This created a racial disparity in drug crime sentencing, based mostly on this demographic difference.

Congress and the Sentencing Commission have been going back and forth about what to do about this for over a decade. The Government's argument in this case was based primarily on the idea that Congress has given a policy determination to the 100 to 1 ratio that the district courts should respect.

What did the Supreme Court decide?

The Supreme Court had already decided in the prior case, Booker, that the sentencing guidelines are discretionary. District courts are not strictly required to follow the guidelines requirements. The Supreme Court ruled that this was true for the 100 to 1 ratio as well. However, district courts must follow the decision in Gall, which imposed procedural requirements, and the sentence must be reasonable. Interestingly, the proceedural requirements in Gallwere imposed the same day that the Supreme Court announced the decision in this case.

Luckily forMr. Kimbrough, the Supreme Court believed that the District Court had made no procedural error, and the District Court properly considered the Guidelines as Gall requires. The Supreme Court went on to agree with the District Court - the sentence in this case was reasonable: 15 years is long enough for Mr. Kimbrough to be adequately punished for his crimes, it is after all only 4.5 years less than the Guideline amount.

What was the big idea?

No matter how hard the government tried, it could not convince the Supreme Court that district courts do not have the discretion that the Court gave them in Booker. District courts may apply the Guidelines without treating the Guidelines as mandatory commands. It shouldn't have been much of a surprise: "discretion" applies to the entire Sentencing Guidelines, even the bits of the Guidelines that have had a statutory history with Congress.

Any other words of wisdom?

Justice Scalia concurred in the decision. He wrote separately to reassert his interpretation of Booker. As he explains: "[T]he district court is free to make its own reasonable application of the [statutory] factors, and to reject (after due consideration) the advice of the Guidelines." If there is a “thumb on the scales,” like a presumption that crack is 100 times worse than cocaine, the guidelines would no longer comply with the Sixth Amendment, because that presumption would be a fact found by judges, and not juries.

Justice Thomas dissented. Justice Thomas has one problem: this decision necessarily relied on a series of policy considerations - none of them written into the statute. Those statutory considerations were in place, until the court overruled them and made the sentencing guidelines discretionary. Now, the Supreme Court is faced with a series of cases trying to determine how the sentencing guidelines should be applied in a given instance. Justice Thomas believes that the decision in Booker was a mistake. Thus, he would overrule Booker and return to the original mandatory Sentencing Guidelines as written.

Justice Alito dissented. Go read his dissent in Gall.

What is the quotable quote?

"This Court’s remedial opinion in United States v. Booker, 543 U. S. 220, 244 (2005), instructed district courts to read the United States Sentencing Guidelines as “effectively advisory,” id., at 245. In accord with 18 U. S. C. §3553(a), the Guidelines, formerly mandatory, now serve as one factor among several courts must consider in determining an appropriate sentence."

After Kimbrough and Gall will we have to suffer through more of these sentencing guidelines cases?

Justice Thomas seems to think so: "As a result of the Court’s remedial approach [in Booker], we are now called upon to decide a multiplicity of questions that have no discernibly legal answers." Stay tuned.

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