Giving an Inch, but not a Mile

So, I’m late to the Liptak love this week. I blame it on…whatever. It’s time. Only 2 days late.

This week, Liptak joins the crack/cocaine sentencing fray with a column noting how little the Supreme Court’s big holdings in Kimbrough and Gall last week will actually mean. Liptak rightly points out that, without Congressional action, Gall/Kimbrough and the Sentencing Commission’s decision on retroactivity won’t mean a whole hell of a lot. The real problem — and the thing Congress can fix — is mandatory minimums.

Neither the [sentencing] commission nor judges can do anything about the mandatory minimum sentences that retain the same disparities. The sentences are required by a 1986 law, enacted when crack was new, terrifying and seemingly unstoppable. Only Congress can change it.

Paul G. Cassell, an authority on sentencing who was until recently a federal trial judge, said the focus on the sentencing guidelines was in some ways a distraction.

“The mandatory minimums are so draconian,” he said. “I’m a believer in a good guidelines system. And I would much rather trade a much tougher guidelines system and get rid of mandatory minimums.”

The mandatory minimum sentence for crimes involving five grams of crack — a little more than a sugar packet — remains five years. For powder, the five-year mandatory sentence does not kick in until 500 grams, or more than a pound.

Fifty grams of crack equals a guaranteed 10 years. It takes five kilograms of powder to mandate the same sentence. Five kilos is a lot of cocaine.

Indeed. While the Court’s recent decisions are a good step, and the retroactivity decision will help a lot of people get out of prison earlier than they would otherwise (but still later than they should have), the only permanent and full fix would be to repeal the mandatory minimums.

Of course, this leaves some judges (including 9th Circuit Chief Judge Kozinski) uncomfortable.

The guidelines were a sort of relief, Judge Kozinski said. They established relatively narrow ranges and “presumably take into account all those factors I don’t feel competent to weigh: punishment, deterrence, rehabilitation, harm to society, contrition — they’re all engineered into the machine; all I have to do is wind the key.”

It’s true that sentencing is a huge responsibility to place at the feet of a single person. But a judge seems to me to be better equipped than Congress; my sense is that it’s not a super idea for a political body to be deciding how to punish society’s “undesirables.”

If mandatory minimums were repealed, judges would no longer be able to blame Congress for making them impose harsh sentences. They would be fully responsible for the sentences they mete out.Their sentencing would be their own. To me, this seems like a positive development that could potentially lead to more lenient drug sentences and the imposition of harsh penalties only when really warranted (say, for a major drug trafficker not a low-level user or dealer).

But as Liptak notes, now that the Supreme Court has acted, even if only incrementally, it seems less and less likely that Congress will mobilize to implement the changes that could really make a difference.