Landmark Federal Sentencing Law Developments

On December 10th the Supreme Court decided two companion cases that essentially hold that the Federal Sentencing guidelines really are just guidelines. In other words the sentencing court, after giving them consideration, is free to disregard them and impose the sentence the court thinks is appropriate in a given case.

To understand the significance of this development a brief overview of the history of the sentencing guidelines is necessary. They were created by Congress in 1987 as a result of an unusual collaborative effort of conservatives and liberals. Conservatives complained that Federal judges were handing out too many probationary sentences and liberals complained that  people of color were receiving  unfairly harsh sentences. The Federal sentencing guidelines were created to insure tough but uniformly fair sentences were being imposed. At this time the country was responding hysterically to the “crack cocaine epidemic.” It was widely believed that crack cocaine was a particularly dangerous and addictive manner of ingesting cocaine. As a result the Federal sentencing guidelines imposed far more serious sentences upon distributors of crack cocaine than distributors of powder cocaine. Over time the distinction between the two forms of cocaine proved to be less significant than initially believed. Given that African-Americans tend to distribute crack cocaine as opposed to powder cocaine, many people felt the sentencing distinction resulted in unfair sentences for African American defendants, something the creation of the Federal Sentencing Guidelines was intended to prevent.

In 2004 the Supreme Court held that Washington State’s mandatory sentencing guideline system was unconstitutional because a judge (as opposed to a jury) made factual determinations that resulted in increased mandatory sentences. The continuing validity of the Federal sentencing guidelines was in doubt, until the next year when the Supreme Court held they were constitutional so long as the rule requiring there application in most cases was disregarded. Briefly lawyers around the nation argued that judges were no longer fettered by the guidelines when judges sentenced their clients. The party was short lived, however, when the various Federal appellate courts began reversing lenient sentences on the grounds that the sentencing judge did not give the guidelines sufficient deference.

In the two cases decided this year, the Supreme Court held that it meant what it had said previously, and the guidelines really are merely advisory. A judge’s decision not to impose a guideline sentence is only to be reversed if the court of appeals concludes the trial judge “abused its discretion,” which in lawyer speak means “hardly ever.” The Supreme Court illustrated how broad this discretion is in one of the cases where the sentencing judge disagreed with crack cocaine penalty. The Court held that the sentencing judge was not to be reversed when it was clear that the sentencing judge simply disagreed with the guidelines. Obviously if judges are free to disregard the guidelines simply because they disagree with them the original guideline goal of uniformity of sentences is undermined.

No matter what the Supreme Court held about the Guideline in the cases before it, the crack and powder cocaine disparity was on its way of becoming a thing of the past. As of November 1, 2007 the Federal Sentencing Guidelines abolished the distinction. But this rule change would normally only apply to defendants sentenced after that date. The day after the Supreme Court’s decisions on the 10th, the Federal Sentencing Commission decided to make the new rule on crack and powder cocaine retroactive. This means every defendant who received a guideline sentence based on a crack cocaine sentence may potentially be eligible for a sentence reduction. The Sentencing Commission estimates this may affect 20,000 inmates. Given that the Federal courts already have extremely full plates this rule will clearly create a burden for the courts.

In order to get a sentence reduction an inmate will have to file a motion with the court requesting it. The motions cannot be filed prior to March 8, 2008. The reductions will not be automatic, the judges will have discretion whether to grant it, and the motions will likely be contested by the government.

Mick Mickelsen is a nationally recognized criminal trial attorney with more than 30 years of experience defending people charged with white-collar crimes, drug offenses, sex crimes, murder, and other serious state and federal offenses.