In United States v. Booker (2005) the Court made the federal sentencing guidelines advisory rather than mandatory, and ever since prosecutors, defense attorneys, and judges have been grappling with how much leeway courts actually have in sentencing. This past Term the Court heard two cases on sentencing discretion, one involving the controversial ratio used in calculating sentences for trafficking crack as opposed to powder cocaine. In both decisions the high court gave federal trial judges greater latitude to deviate from the guidelines.
In Kimbrough v. United States, a 7-2 majority speaking through Justice Ginsburg said it was reasonable for a judge to impose a lower sentence than one prescribed by the guidelines because of his disagreement with the rule that imposed the same sentence for a crack dealer selling one ounce as for someone selling 100 ounces of powder cocaine. The Court of Appeals for the Fourth Circuit said the law did not allow the judge to make such a determination.
Ginsburg, however, wrote that "the cocaine guidelines, like all other guidelines, are advisory only," and the Court of Appeals erred in considering them mandatory. Civil rights groups had long challenged the disparity because most crack cocaine users and dealers are African-American, while powder is favored by white users. The Court, however, did not touch on the argument regarding racial disparity.
The U.S. Sentencing Commission earlier in the year adopted guidelines that substantially lessen the disproportion, and some 20,000 prisoners sentenced under the guidelines could conceivably petition the courts to reduce their sentences.
In a companion case, Gall v. United States, Justice Stevens wrote for the same 7-2 majority in a case involving a man convicted of conspiracy to sell 10,000 pills of the drug ecstasy. Under the guidelines Brian Gall should have been sentenced to a minimum of thirty months in jail. But a federal judge in Iowa ruled that Gall had quit the drug business years before the authorities had found evidence of his involvement and had turned his life around, and so sentenced him only to probation. The government had appealed, and the Eighth Circuit had agreed with the government that the sentencing was out of line.
Like Justice Ginsburg, Stevens also chastised the appeals court, asserting that it is not for appeals judges to "decide de novo" whether the trial judge's "reasoned and reasonable" sentence should be altered. Federal trial judges had the best grasp of all the circumstances surrounding both a crime and its perpetrators, and should be given the maximum amount of leeway in determining sentences. While the federal guidelines set some benchmarks, they remained only advisory.
Both cases do help in clarifying the question of how much discretion trial judges have and how much deference should be shown to their decisions by appellate courts. In June 2007, the justices in Rita v. United States ruled that appeals courts could choose to presume that sentences within the guidelines range were reasonable, but that such a presumption was not binding. That decision, however, said little about the trial judge's discretion. These new rulings seem to indicate that while a trial judge should consult the guidelines, they are just one factor among many and do not by themselves carry special weight in determining a sentence. The guidelines, as Justice Stevens wrote, "should be the starting point," but the judge would have to weigh all factors. As for the appeals courts, they would have to have very good reasons to upset a trial judge's determination.
In both cases Justices Thomas and Alito dissented, arguing that the sentencing guidelines deserved more consideration than shown by the majority.
In a third case decided later in the Term, a narrow majority of the Court ruled that judges do not have to notify defendants or the prosecution when considering a prison sentence outside the guidelines range. The decision came in the case of Richard Irizarry, who threatened to kill his ex-wife and her relatives in Alabama. He pleaded guilty to one count of making a threatening interstate communication, and the judge sentenced him to 60 months in prison, nine more than the guidelines and the maximum allowed under the law. The judge said that the extra prison time was based on Irizarry representing a future danger to his ex-wife and family.
In 2002 the federal rules of criminal procedure were amended to require advance notice if a court intended to deviate from the then-mandatory guidelines. The judge in Irizarry's case said that since the guidelines are now only advisory, the rule requiring advance notice no longer applied, and the Eleventh Circuit Court of Appeals agreed.
Justice Stevens wrote for the majority, while Justice Breyer, joined by Kennedy, Souter, and Ginsburg dissented. Despite the guidelines now being advisory, Breyer claimed, "fairness justifies notice."