[Posted Dec. 12, 2007]

High Court Ruling
Opens Door For
Fairer Sentencing

Leonard E. Colvin
Chief Reporter
New Journal & Guide
  
      A 2003 ruling by Norfolk Federal Judge Raymond Jackson has been upheld by the U.S. Supreme Court, making the first significant dent in the nation's 20-plus-years mandatory drugs sentencing laws that have been called discriminatory by civil rights activists.
Under the ruling, federal judges now have greater flexibility  in using sentencing guidelines involving cases where defendants are involved in distributing or possessing crack cocaine.
    Critics from across the political spectrum have long criticized the federal sentencing guidelines as unfair. Civil Rights groups and especially African American politicians have voiced their disapproval of the guidelines.
Jackson, the first African American U.S. District Judge in Norfolk, expressed his concerns about the disparity  in the federal sentencing guidelines which impose more time and penalties for people involved in the possession or distribution or use of crack cocaine compared to powdered cocaine.   The penalties are imposed on mostly African American defendants who are more involved in the distribution and use of crack compared to powdered cocaine which Whites are more prone to use.
     The U.S. Supreme Court ruled 7-2  to uphold  Norfolk's Judge Jackson's refusal to apply the  high mandatory sentences to a former Gulf War Veteran Derrick Kimbrough, who got 15 years for possessing a small amount of crack cocaine in a Norfolk Federal court  instead  of up to 22 years which are required by the federal  mandatory sentencing guidelines.
"This decision  will provide significant assistance to federal trial judges  in sentencing,"  said Judge Jackson during a brief interview with the New Journal and Guide a day after the  high court's decision. 
"It clarifies the scope of the discretion that sentencing judges have in sentencing individuals for crack cocaine violations verses powdered cocaine."   

     A defendant, for example, who possesses  five grams of crack can get a prison term of five years plus. But an individual who is caught with the same amount of cocaine  will only get a year.
    Jackson said he sentenced Kimbrough in 2003.
    Judge Jackson said the bottom line are the large number of (85 percent) of African Americans men who have been sentenced to jail for long periods of time  based on their participation in the nation's illegal drug trade, which points up a grave racial disparity in sentencing.
    Jackson said that while many of the defendants usually have their lawyers negotiate plea bargain after they admit to being involved in illegal drug activity, most are sentenced to jail.
A lower federal appeals court ruled that Jackson did not have the discretion to impose a lighter sentences on defendants in drug trials involving crack or powdered cocaine.
Supreme Court Justices Samuel Alito and Clarence Thomas  voted against the decision, stating that since Congress imposed the sentencing guidelines back in 1980s, it  has the power to amend them.
    U.S. House Judiciary Committee Chairman John Conyers, Jr. (a Democrat from Michigan), and Crime, Homeland Security and Terrorism Subcommittee Chairman Robert "Bobby" Scott,  who represents the Third Congressional District in Virginia,  applauded the high court's  rulings  on Kimbrough's case and   in Gall v. U.S.
Justice John Paul Stevens, writing for the majority, delivered the opinion that sentencing judges can impose sentences that are shorter than the applicable guidelines range, and that the reviewing court must review those decisions under an abuse of discretion standard.
In U.S. v. Kimbrough, Justice Ruth Bader Ginsburg ruled that sentencing judges may consider the unfair disparity between crack and powder cocaine sentences, and may depart from the guidelines range, when a guidelines sentence is "greater than necessary" to serve the objectives of sentencing.
    The ruling may now reduce the sentences of up to 19,000 mostly poor and African American men who were sentenced to prison for various drug related offenses.  Further the  U.S.  Sentencing Commission  part of the federal judicial system may decide to make the court's decision retroactive and cut the sentences of these defendants.  Kimbrough, who is 39 now,  has served only three of the 15 years Judge Jackson gave him and is not expected to get out of federal jail until 2017.

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