Justice Stephen Breyer was clearly struggling during the Supreme Court opening session this morning. How should the court create a middle ground between the need for uniformity in sentencing and the desire to give judges discretion to mete out just punishment in individual cases?
"What are the words we need by the end of the day that will lead to considerable discretion but not total?" he asked.
It was the question Breyer and his eight fellow justices returned to over and over as they weighed two key sentencing cases. But it may not be so easy to answer.
Since the high court's 2004 ruling making the federal sentencing guidelines advisory rather than mandatory, courts have wrestled with figuring out just how much choice they really have. The change has been particularly acute in crack cocaine cases, for which federal guidelines punish dealers far more harshly than in cases involving the powder form of the drug. The disparity—requiring 100 times greater the quantity of powder cocaine to kick in the same mandatory minimum sentence as crack—has long been repudiated by the U.S. Sentencing Commission. So since the guidelines became advisory, judges have begun weighing in, often reducing crack sentences.
That was the case with Derrick Kimbrough, a convicted crack dealer whose case came before the court today. His lawyer argued that an appellate court had wrongly overturned his sentence simply because a trial judge who disagreed with the disparity gave him 15 years behind bars instead of using the guideline, which called for at least 19.
"Sentencing judges must be able to disagree with the sentencing policy" since the guidelines are advisory, said Michael Nachmanoff, Kimbrough's counsel and a federal public defender in Virginia.
But just how far a judge should be able to go is hard to tell. Justice John Paul Stevens suggested that it might be reasonable for a judge to look at the disparity in crack and cocaine sentencing and see that as a violation of another congressional mandate: an unwanted disparity of justice.
Yet, the government's lawyer contended, not every judge might read the law that way, and so such wide discretion might ultimately mean that two judges sentence defendants in similar cases to vastly different prison times. Without clear guidance on what made a sentence unreasonable, the court would create "a one-way ticket to disparity," said Michal Dreeben, the government's lawyer.
But such differences, Justice Antonin Scalia noted, might be unavoidable.
"It may be impossible to create uniformity through advisory guidelines," he said. The court was left to ponder just what fairness requires in such tangled circumstances. A decision by the high court is expected in the coming months.