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August 17, 2006

Crack reasonableness review should be as easy as 1, 2, 3

The Second Circuit in Castillo needed 43 pages to declare an experienced judge's sentencing decision unreasonable for failing to follow the harsh crack guidelines (basic here).  In prior posts (some listed below), I have explained the flaws I see in how circuits have approached this issue.  Here I will reiterate why, in my view, three simple propositions support the reasonableness of thoughtful district court decisions to follow a 20:1 crack/powder ratio.

1.   Congress has ordered sentencing judges in 18 U.S.C. § 3553(a) to "impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection" and also to "consider" guideline ranges. 

2.  US Sentencing Commission has emphatically stated that (a) the guidelines' 100:1 ratio overstates the seriousness of crack offenses, and (b) the crack guidelines undermine the goals set forth in 3553(a).  See, e.g., Chapter 8 of the US Sentencing Commission's 2002 Report: "After carefully considering all of the information currently available ... the Commission firmly and unanimously believes that the current federal cocaine sentencing policy is unjustified and fails to meet the sentencing objectives set forth by Congress in both the Sentencing Reform Act and the 1986 Act."

3.  If a sentencing judge, after considering the guideline range and the USSC's analysis, believes the crack guideline sentence is "greater than necessary" in a particular case, that judge can — and arguably must — impose a sentence outside the guidelines.  In such a case, the sentencing judge should adopt a sound method for deciding what non-guideline sentence to impose; drawing guidance from the USSC's recommended 20:1 crack/powder ratio reasonably respects (a) Congress's view that crack offenses are worse than powder offenses, and (b) the USSC's expertise and wisdom.

Some related posts on crack sentencing after Booker:

August 17, 2006 at 07:43 AM | Permalink


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Although I agree with your argument, I wonder if Castillo is the best test case. Reading through the lower court decision, there is very little ink spilled discussing why the defendant should be eligible for a non-guideline sentence. In fact, the only discussion addresses decisions of other courts sentencing outside the guidelines because of concern about the disparity between crack and cocaine powder sentences imposed under the guidelines.

In essence, the language in the lower court decision seems to amount to little more than a categorical refusal to sentence using the 100:1 ratio. That is just begging for the case to be bounced back by the circuit court. There are better cases out there where the judge spends more time discussing specific circumstances of the offense and the defendant that warrant a non-guideline sentence. In this case, the discussion is pretty thin and I can’t say I am surprised by the 2nd C. ruling

Just my two cents . . .

Posted by: Ryan King | Aug 18, 2006 10:23:25 AM

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