On October 2, 2007, the Supreme Court will hear oral arguments in Kimbrough v. US. Kimbrough centers around the 1986 federal law that imposes a “100:1 crack/powder ratio.” Under the law, a defendant caught with one amount of crack (rock) should receive a sentence similar to that of a defendant who was caught with a quantity in cocaine (powder) form that is 100 times larger.

Petitioner Kimbrough calls into question the 100:1 ratio’s compatibility with a number of recent laws and decisions. 18 U.S.C. §3553(a) is the part of the US code that presides over sentencing decisions and (a)(6) reads:

the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct

Petitioner in this case argues that the 100:1 ratio places an unacceptably rigid guideline over judges who wish to consider mitigating and aggravating evidence in a given crack cocaine case.

For the last few years, the Court has been striking down statues that impose strict guidelines on judges in determining sentencing. US v. Booker in 2005 held that mandatory sentencing guidelines are unconstitutional. More recently, the Court held in Rita that a judge’s sentence that falls within the guidelines is per se reasonable.

The court has also been increasing the role that juries play in the sentencing process. Last year in Cunningham v. California, the Supreme Court struck down California’s sentencing structure that gave judges final say in evaluating mitigating and aggravating circumstances. The Court held that:

placing sentence-elevating factfinding within the judge’s province, violates a defendant’s right to trial by jury safe-guarded by the Sixth and Fourteenth Amendments.

Recent sentencing cases have been divided along rather unusual lines. Rita, decided 8-1, saw Justice Souter acting as the lone dissenter. Cunningham, decided 6-3, saw Justices Kennedy, Alito, and Breyer dissenting. US v. Resendiz-Ponce, another sentencing case from last year, decided 8-1, saw Justice Scalia in the dissent. Ayers v. Belmontes, another sentencing opinion from last year, decided 5-4, saw conservatives win along the standard partisan lines.

I expect that the court will continue the trend towards judicial independence in sentencing. I would not be surprised to see the court rule, along rather unusual lines, that the 100:1 ratio may not be used as a strict rule because it deprives individuals of the right to employ mitigating evidence and therefore abridges important sixth amendment guarantees. Certain Justices (Scalia and Alito instantly come to mind) may choose to give strength to the legislature’s legitimate interest in punishing certain crimes especially hard and may find the guidelines to be more binding than their counterparts find them to be.

You can always find more information about upcoming cases before the court at our 2007 Term Case Index.

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