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June 16, 2007

Thinking through Kimbrough and the state of crack sentencing

The Supreme Court's cert grant last Monday in Kimbrough v. United States, No. 06-6330, justifiably received a lot of attention (see here) because it appears that SCOTUS is finally going to get involved in the long-standing debate over crack sentencing (which has hit new heights since Booker).  Notably, this morning brings two distinct commentaries here and here calling upon the Supreme Court and others to do something about crack sentencing inequities. 

But, the timing and the context for the Court's foray into this arena has me still scratching my head about what the Justices are up to with federal sentencing these days.  Let me explain:

1.  Quirky facts:  The cert papers in Kimbrough — and here are links to Kimbrough's petition, the government's response, and Kimbrough's reply — indicate the case facts are very quirky.  According to the cert petition, Derrick Kimbrough pleaded guilty without a plea agreement and "turn[ed] down the government's offer to dismiss the § 924(c) count," which added five extra mandatory years to his sentence.  And yet, for some unclear reason, Kimbrough was denied an "acceptance of responsibility" reduction.  I am wondering what weird back-story might explain all this.

2.  Quirky timingLast month the US Sentencing Commission proposed amendments to the crack guidelines and strongly encourage Congress to make further adjustments (details in this archive).  The new crack guidelines will become effective (absent congressional action) November 1, which will be after SCOTUS hears argument, but before a ruling, in Kimbrough.  Though the district court's initial sentencing in Kimbrough makes the USSC's amendment not directly relevant, now seems like an especially quirky time for the Justices to be opining on crack sentencing dynamics.

That all said, simply the cert grant in Kimbrough should help lower court judges and Congress and the Justice Department and the USSC and others appreciate the need to focus on cocaine sentencing justice throughout 2007.  That alone makes the grant in Kimbrough valuable, even if curious.

June 16, 2007 at 12:37 PM | Permalink


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Could it be that cert was granted in Kimbrough because the Court had already been planning to address the crack/cocaine disparity in Claiborne?

Posted by: | Jun 16, 2007 3:53:22 PM

Yes - in fact Ginsburg J just said as much in public remarks on CSPAN

Posted by: Anon | Jun 16, 2007 9:51:05 PM

Kimbrough lost acceptance because he declined the plea deal, electing instead to testify at his co-defendant's trial in a noble but unsuccessful effort to take full responsibility for the crack and the gun. In all likelihood, the Court was attracted to this case because the trial judge made an extraordinary effort to reconcile 3553 factors and made specific findings in favor of parsimony, leading to the mandatory minimum 180 month sentence. When the government objected to the leniency of 180 months, the judge was appalled by the objection. All in all, the case has a number of interesting aspects that may have distinguished this case from others. It may not just be about crack -- it may be a vehicle to guide trial courts in reconciling the conflicting rules of 3553 and the guidelines.

Posted by: | Jun 17, 2007 8:35:56 PM

No mystery in their taking this, Prof. Berman. The crack situation can be a stand-in for many others. It is merely the most prominent area in which Circuits have said that district courts cannot reject policies established by the Sentencing Commission because they disagree with them. Scalia and probably at least four others on the court believe this is wrong in general. (And, if I remember correctly, Dreeben came perilously close to conceding in the Rita argument that sentencing courts could disagree with the Commission.) So the crack-cocaine cases retain their importance, since their principles are widely applicable, even if the sentencing dispartity is modified (it has not been erased) by the Commission and Congress.

Posted by: David in NY | Jun 18, 2007 10:01:21 AM

None of the links to the cert. materials works.

Posted by: pd | Jun 18, 2007 4:55:10 PM

Nor have I been able to access them at the Supreme Court website!

Posted by: anonymous | Jun 19, 2007 6:35:15 PM

I think I fixed the links.... thanks!

Posted by: Doug B. | Jun 20, 2007 4:26:51 PM

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