Still more cracks in crack sentencing guidelines

In this post, I noted the effective National Law Journal piece discussing post-Booker work by district courts to adjust the 100-to-1 sentencing disparity between crack and powder cocaine under the federal guidelines.  As a fitting follow-up, this AP story reports that SDNY District Judge Shira Scheindlin on Tuesday "joined the chorus of jurists who say crack cocaine sentences are too harsh and that disparities between those sentenced for dealing crack cocaine and those penalized for powder cocaine cut along racial lines."  The article quotes from Judge Scheindlin's written opinion in a case in which she apparently granted a Booker variance based on the crack/powder disparity, but I cannot yet find the opinion on-line.

UPDATE:  The opinion referenced in the article is US v. Fisher, No. 03 CR 1501 (SDNY Oct. 11, 2005), is now available on-line and I also have provided a copy for download below. Here are a few passages from the start of the thoughtful opinion:

After the Supreme Court's decision in United States v. Booker, the statutory minimum sentences remain mandatory, but the Guidelines can no longer bind a sentencing court.  Indeed, it would be unconstitutional under Booker for a court to treat the Guidelines as mandatory and conclude that it could not impose a sentence above or below the sentencing range determined primarily by the Drug Quantity Table....

This Opinion addresses the tension between a mandatory minimum sentence and a non-Guidelines sentence, the former based solely on the notion that crack cocaine dealers should be punished much more severely than powder cocaine dealers as a function of relative drug quantity.  In short, the sentencing disparity created by the 100:1 ratio presents two significant dilemmas.  First, the ratio is binding for one purpose — imposing the mandatory minimum sentence — but is not binding for the purpose of imposing the ultimate sentence.  Second, the Guidelines sentence, determined primarily by drug quantity, is often inconsistent with section 3553(a) because it is greater than necessary to achieve the goals of sentencing.

Download u.S. v. Fisher, Sentencing.rtf