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December 14, 2007

Is Kimbrough as big as Brown v. Board of Ed?

I am usually the first one to suggest that Supreme Court sentencing decisions are hugely important. (Recall that I have described Blakely as perhaps the biggest SCOTUS criminal justice decision ever.)  But even I have to take pause when seeing a comparison of Kimbough to Brown v. Board of Ed in this new Newsweek article.  Here are excerpts:

For two decades, the United States has pursued, prosecuted and sentenced cocaine offenders in a way that borders on insanity -- targeting petty criminals over serious drug dealers -- while fostering contempt, instead of respect, for the policies that have sent tens of thousands to jail. On Monday, the Supreme Court said enough was enough and empowered federal judges to reject sentencing guidelines rooted in hysteria and ignorance. The move has considerable support on the federal bench. It allows judges "who actually see the people and understand the local community," to better consider their communities' best interests, said Jack B. Weinstein, a federal district judge in New York....

The court's two 7-2 decisions -- authored by Ruth Bader Ginsburg and John Paul Stevens, respectively--contained no rousing rhetoric; they methodically built on the logic of two prior opinions.  But Ginsburg's ruling catalogued, at length, criticisms of federal cocaine policy. "This may be the first sentencing decision since the mid 1980s that actually talks about justice, that seems to have some blood in it," said Graham Boyd, director of the ACLU's drug law reform project. Boyd compared the potential impact of Ginsburg's decision to the famous Brown v. Board of Education desegregation ruling.  "When the Supreme Court says that something is wrong, the other institutions of government pay attention," said Boyd.

December 14, 2007 at 09:16 AM | Permalink


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its about time someone in power does something...!

Posted by: wannabe | Dec 14, 2007 10:13:43 AM

Though I disagree with Justice Alito on this issue, he was correct in his dissent to note that Gall and Kimbrough lost sight of the constitutional principle on which Apprendi and Blakely stand. This was not about -- or it shouldn't be, at least -- federal drug sentencing policy. It is about something much broader than that. Federal judges can only reject the crack guidelines because not to allow them to do so would create a constitutional violation (unless a jury found the relevant facts).

Too many supporters of these recent (post-Booker) decisions take judicial discretion as the touchstone. To be sure, that was the result of Booker (ironically imposed by the Apprendi/Blakely dissenters). But that is not what the last decade of Supreme Court decisions in this area were attempting to vindicate. It was the Sixth Amendment right to a jury. Any notion to the contrary is naive and ignorant. Moreover, it opens the the Court's sentencing jurisprudence to criticisms of judicial activism. And as long as that jurisprudence is said to stand for judicial sentencing discretion, those criticisms would be correct.

Posted by: | Dec 14, 2007 10:34:33 AM

With drivel like that coming from Mr. Boyd, no wonder so many people have negative views of the ACLU. Yes, crack sentencing is an outrage, but the proper policy resolution is for Congress.

As a general matter, we must remember that discretion can be used for severity just as easily as it can be used for leniency. While there appears to be broad agreement that crack sentences are too high as well as being too much higher than powder sentences, there are no guarantees on how judges will respond. Some judges might narrow the disparity by raising powder sentences. In theory at least, increased judicial discretion does not guarantee specific results.

Posted by: Come on | Dec 14, 2007 11:48:01 AM

The reference to Brown, when viewed in context, makes sense. He saying that Brown had broad ramifications and pushed the elected branches into the direction of helping to correct an injustice. Kimbrough could also have that kind of impact in a different policy area. I doubt it will, but who knows.

Posted by: Confused | Dec 14, 2007 12:42:18 PM

I think that the guidelines are based on "hysteria and ignorance." Whatever the probably of increased severity, from the Gall and Kimbrough decisions, it will be upset by the much larger probability of leniency towards deserving offenders. Worse case scenario, some Judges will continue to use the guidelines, but at least if they see some one that doesn't deserve going to prison, they'll have the power to use their discretion.

Posted by: EJ | Dec 14, 2007 1:15:21 PM

Drug prohibition in its entirety is based on hysteria and ignorance, with a patina of racism on top. Whether a base form of a drug should be punished 100 times more than the salt form of the same drug only goes to show how absolutely INSANE our drug policy has become. Sorta-kinda fixing one problem (giving discretion to fix is not the same as fixing) is not the same thing as fixing the problem.

Declaring drug prohibition (at least without a constitutional amendment to support it like there was for alcohol prohibition) unconstitutional -- which it is -- would be as "big" as Brown v. Board of Education.

Posted by: bruce | Dec 14, 2007 1:32:42 PM

No Kimbrough is not as big as Brown. It's not even in the same league. And any suggestion that it might be is ludicrous. The SCOTUS did not outlaw, as a constitutional principle, disparity in drug sentencing. All the Court held is that these 100:1 sentencing guidelines promulgated by an executive agency are advisory -- like the rest of the guidelines. The other "institutions" of Government are under no obligation to follow the SCOTUS lead. In fact, Congress could respond by imposing harsher mandatory drug sentences (which is always the more political saleable option).

That anyone (with a legal eduation) could compare this case to Brown is astonishingly ill-informed. Boyd's comments remind me of someone who tries to equate a lone individual's "bad acts" to that of the Nazis. In both cases, the comparisons are pure hyperbole.

Posted by: Alex | Dec 14, 2007 3:37:35 PM

The sentences have been so high that I have never seen a judge use discretion to go above the guidelines, even the staunchest GOP judges give the minimum that they can get away with by law. Getting rid of them will make lawyers jobs harder but is unlikely to result in many higher sentences.

Posted by: william | Dec 14, 2007 3:45:39 PM

Short Answer to Post Title Q: No. It's not.

Posted by: Sentencing Observer | Dec 14, 2007 3:51:22 PM

If Kimbrough is as big as Brown, Booker must be as big as Marbury v. Madison.

Posted by: bruce | Dec 14, 2007 4:26:14 PM


You kid, but the link between Booker and Marbury may be stronger than you think: given Booker's wild rewriting of the Sentencing Reform Act, the Court perhaps got a bit too carried away with Marbury's pronouncement that it is within the province of the judiciary to "say what the law is."

Posted by: | Dec 14, 2007 4:32:11 PM

Alex, did you even read the quote? He's not making the comparison to Brown you seem to think he's making.

Posted by: Confused | Dec 14, 2007 8:16:55 PM

As I discussed in a law review article in the NC Central Law Journal, I think Apprendi/Blakely/Booker is a reaffirmation of Marbury v Madison's basic principle of judicial supremacy. We started to drift away from Marbury's core position in McMillan v Penn, when a majority of the Court deferred to the legislature's definition of what an element of a crime is. Apprendi et al. make clear that the legislature can call something whatever they would like, including Mary Jane (Scalia concurring in Ring v Arizona) but if something looks like an element, acts like an element and quacks like an element, it is an element and must be found by a jury. bruce cunnningham

Posted by: bruce cunningham | Dec 15, 2007 8:35:59 AM

B. Cunningham: Indeed, we've literally reached the point where courts can define "murder" as intentionally driving over the speed limit. For a sick example of this, see the Florida "trafficking" statute that Richard Paey was convicted with. Possessing more than 40 pills of hydrocodone is statutorily defined as trafficking, despite the fact that possession and trafficking have completely different meanings. Whatever the legislature wants... no matter how stupid.

Ever since Carolene Products Footnote Four and the "Presumption of Constitutionality" we've gotten away from Marbury v. Madison and the judiciary has rendered itself into an impotent, lesser branch of government.

I believe ever statute Congress passes should be presumed to be UNconstitutional, and any American citizen should have standing to contest said statute in federal court. Also, every statute should have to pass a strict scrutiny test (regardless of whether equal protection is involved). If a statute is not narrowly tailored to achieve a compelling governmental interest/objective in the least restrictive way possible, why the hell was it made law, and more importantly, why the hell should it be allowed to remain law by the judiciary?

If the law were the way I just described, we'd live in a country with a government far more like the one invisioned by the Framers of the Constitution. The very idea that congress can pass a law and a court will presume it is constitutional, while making it nearly impossible to rebut that presumption, is a gross distortion of the intended function of the judiciary, and a practical overturning of Marbury v. Madison.

Posted by: bruce | Dec 15, 2007 9:31:44 AM

Bruce, agreed. I was always taught that the Constitution and the courts were the bulwark against the winds of popular opinion trying to blow us away from our core beliefs as a country. Apprendi is the first thing I've seen in my 34 years of trying criminal cases of a return to Marbury's fundamental teaching. And , as only Nixon could have gone to China, only Scalia could have put together the odd coalition of justices who are driving the Apprendi train.

the other bruce

Posted by: bruce cunningham | Dec 15, 2007 9:51:50 AM

Other Bruce: Couldn't agree more. I am close friends with a retired federal judge who quit soon after, and directly because of, the Sentencing Reform Act taking away his discretion with binding sentencing guidelines. He was a LBJ appointee, and he told me that when Johnson appointed him, LBJ told him "Remember, you sentence people, not crimes" (a sentiment I've expressed here many times). Along with its loss of sentencing discretion to Congress (which it was happy to uphold), the judiciary lost a great judge to retirement.

I've always had mixed feelings about Scalia. No doubt he is a brilliant jurist, but I've always found him to be intellectually dishonest in religion-clause cases, and at a few other times, as well. For example, in a recent speech he gave, he said he doesn't understand and resents (to paraphrase) people saying his Catholicism affects his judicial decisionmaking, saying he's just doing his job like a chef, and he then said "there is no Catholic way to cook a hamburger." Okay, sure, but there IS a "Catholic way" to decide an abortion case. Intellectual dishonesty at its greatest.

But, I agree that only Scalia could have made Apprendi and its progeny actually become the law of the land, and for whatever reason(s), Scalia has been much friendlier to criminal defendants in the past few years than he's ever been. Maybe it's because he knows intellectual dishonesty only goes so far, and if he's going to be a "textualist" then if the constitution means anything, it's got to provide SOME protection to criminal defendants in at least a few situations. Crawford being nice, too.

Posted by: bruce | Dec 15, 2007 10:37:46 AM


Posted by: David in NY | Dec 16, 2007 3:13:14 PM

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