Amicus brief in crack sentencing appeal

As detailed in posts linked here and here and here, the First Circuit has taken center stage in the on-going post-Booker debate over the federal sentencing disparity between crack and powder cocaine.  The First Circuit recently heard oral argument on the issue earlier this month (discussed here and here and here), and the government has also appealed the non-guideline sentence in US v. Perry where Judge Smith extensively explained his justification for not applying the 100:1 crack/powder ratio in the guidelines.

Professor Mark Osler, upon the invitation of the ACLU of Rhode Island, has authored a draft amicus brief to be filed in the First Circuit in the Perry case.  I have assisted with the brief, and Mark is hopeful that some other academics might join me in signing on before the brief is filed next week.  This amicus brief is available for downloading below, and here is the summary of the argument:

This court should decline the government's invitation to create new law contrary to statutory requirements and Supreme Court precedent.  The sentencing court, relying on the guidance of the sentencing commission, concluded that the guidelines overstate the seriousness of crack offenses relative to powder cocaine offenses, then acted on that conclusion.  While the government is unhappy with the outcome, the sentencing court committed no error in following statutory direction and the plain meaning of the Supreme Court in Booker v. United States, 125 S. Ct. 738 (2005).

The government wrongly construes the standard of reasonableness to require elevating the perceived intent of Congress over the plain text of 18 U.S.C. § 3553(a), which the Booker Court identified as the guide for district court sentencing decisions and for circuit court review of whether a sentence is reasonable.  A careful examination of 18 U.S.C. § 3553(a) makes clear that the statute not only allows, but requires an independent judicial evaluation of the guidelines' assessment of the "seriousness of the offense" and also requires district judges to take steps to "avoid unwarranted sentencing disparities."  That is exactly what Judge Smith did in this case.

The government asks this Court to expand the ambit of reasonableness review to create a universal and broad rule that it is improper for district courts to countenance a particular sentencing consideration (seriousness of crack cocaine offenses relative to powder cocaine offenses).  Accepting the government's invitation to turn reasonableness review into a debate over sentencing policy would fly in the face of the Supreme Court's admonition to the Courts of Appeal not to make such broad rulings, and would risk a de facto recurrence of those circumstances which caused the Supreme Court to strike down mandatory sentencing guidelines in the first place.

Download perry_crack_sentencing_amicus_draft.doc