Monday, December 10, 2007

1 . . . 2 . . . 3 - 3 Defense Wins!

In the criminal defense world, getting any good news out of the Supreme Court is a rare occasion. In fact, more often than not you have to shift into "finding the silver lining" mode when SCOTUS speaks. But today, the Court handed down a trio of pro-defense decisions, including two that may (let me stress that again - may) finally bring some order to post-Booker federal sentencing.

The most newsworthy decision of the day came in the Kimbrough case, dealing with the sentencing guidelines for crack cocaine. 20 years ago, Congress established a set of minimum mandatory sentences in crack cases that required a lot less crack to trigger than they did powder cocaine - 100 times the amount of powder to get the same sentence, in fact. The Sentencing Commission, in establishing the crack guideline, imported that 100-to-1 ratio. Ever since there have been howls of protest from defense counsel and others that the guidelines were fundamentally unfair and produced unjustifiably harsh sentences. The Commission even recognized that and urged various changes over the years that Congress rejected (an amendment producing a slight reduction in sentences just went into effect last month, finally).

In a post-Booker world, where the guidelines were allegedly "advisory," many folks argued that sentencing judges should bypass the guidelines and impose lesser sentences. While some sentencing judges eagerly took up the cause, all the courts of appeals shot them down. Today in Kimbrough, the Supremes sided with the sentencing judges and told the appellate courts (most specifically the Fourth Circuit, from which the case came) to allow them more freedom to ignore the guideline in certain cases.

The other biggie was a sort of companion case to Kimbrough, Gall, out of the Eighth Circuit. In Gall, the sentencing court decided that the defendant shouldn't get the guideline recommended 30+ months in prison and imposed a sentence of probation (tough on crime folks - before you freak out, read the opinion and see why). On appeal, the Eighth Circuit said that in what amounted to a 100% variance from the guidelines, there must be "extraordinary circumstances" which weren't present in this case. Again, the Supremes sided with the sentencing judge, holding that all sentences were to be reviewed with the same deferential standard, regardless of whether it was a guideline or non-guideline sentence.

The upshot of Kimbrough and Gall, if the appellate courts play along and the sentencing judges find some courage, will be that it will be very difficult for either a defendant or the Government to successfully appeal a sentence. While that will make my job somewhat more frustrating (not by much), it will probably work out better for our clients. And that's a good thing.

In amongst the guideline cases was the Watson decision, which dealt with whether a person "uses" a firearm when he trades drugs to get one. The upshot of that is a 5-year mandatory minimum sentence if convicted. While the court's decision - a unanimous one, by the way - is welcome, I don't think it will have anywhere near as much impact as the other two cases.

All in all, today was a good day to be a defender. Woot!

PS: For more on all of these cases, check out Sentencing Law & Policy or SCOTUSBlog.

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