Drug Sentences: Examining the Supreme Court Surprise

by Molly Kenney

Is it possible that the Roberts bench isn’t just a bunch of Bushies? George isn’t getting what he bargained for these days. In an astounding turn, the U.S. Supreme Court seems to be thinking, and not just about rich, white, Republican men.

Last week marked an incredible victory for equality and common sense, when the Court announced its ruling in Kimbrough v. U.S. — that judges are no longer bound by the mandatory minimum laws for sentencing of crack and powder cocaine offenses (creators of systemic discrimination against black drug offenders: for more background please see "The Court on Crack"). Following the Court's lead, the U.S. Sentencing Commission applied this change retroactively, making the sentences of more than 19,000 people eligible for review for release from prison. (For more background on the commission's review of sentences, please see: "Crack Sentencing Guidelines Revisited.") In this era of a very conservative bench, how did such radical change, made even more radical by its association with demonized drugs, happen?

The Court’s traditional conservative-liberal split was gone from the Kimbrough opinion, with conservatives Chief Justice John Roberts and Justice Antonin Scalia in league with five liberal and moderate justices. Justices Clarence Thomas and Samuel Alito stood alone in dissent. While Roberts’ assent likely has more to do with his logical ability and looser ties to party politics, Scalia’s vote is probably due to the specificity of the issue the case considered — judicial discretion in relation to mandatory minimum sentences. The case is a huge victory against a racist drug law, but it’s also a win for judges previously bound by federal sentencing standards. It makes sense that judges would like judicial discretion, and it’s fantastic for unfairly sentenced drug offenders and others subject to unreasonable mandatory minimums. However, discussion of the racial aspects of the cocaine laws were kept minimal, with Justice Ruth Bader Ginsburg referencing the racial disparity only once while writing the majority opinion, and then moving on to the central issue of judicial discretion.

President George Bush’s darling, Alito, argued in his dissent that sentencing disparities would eventually increase because judges can now sentence however they want; he apparently assumes that most judges will be racist even when not required to be so by law. Thomas, the justice who never speaks (when I went to watch the Court in action on another case, he was actually sleeping through arguments), continued his tradition of trying to appear uninfluenced by his minority status. He did the same thing with affirmative action, voting against the policy and writing that African-Americans are dependent on it for academic opportunities.

The Court’s decision doesn’t invalidate the federal law establishing mandatory minimums for cocaine offenses. That is within Congress’ power, but not the Court’s. Congress is very likely to change the law after the conservative Court has spoken and the Sentencing Commission has already taken action. What’s left to be seen is whether Congress will follow the recommendation of the concurring opinion — to alter the mandatory minimum laws to make them fairer and require a higher burden of proof for the minimums to take effect — or scrap the laws altogether. Without the sentencing guarantees, federal prosecutors will have to change their strategies when arguing sentences, and it will be interesting to see if racial inequalities persist or if a new systemic tactic emerges. And ultimately, crack’s reputation as the poor, black cocaine and powder’s as the rich, white cocaine aren’t going to disappear as fast as judicial obedience to mandatory minimums. Like the legal system, society has some reevaluation to do.

However, for now, celebration is in order for a move toward fairer sentencing for criminal defendants and reparation (if release after an unfairly long sentence can be called that) for those who’ve paid a higher price that they should have. And here’s to the Court using its collective brain and conscience for decisions in 2008.

(Photo by yeowatzup of Singapore via Flickr, using a Creative Commons License.)

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