Supreme Court rules judges can reduce crack cocaine sentences

NORFOLK

A Gulf War veteran from Norfolk serving 15 years in prison claimed victory before the U.S. Supreme Court on Monday in a case that could profoundly affect how federal judges sentence defendants for having small amounts of crack cocaine.

The ruling addresses the concerns of defense attorneys and civil rights groups who have argued that tougher penalties for crack than for the powder form of cocaine have created a disparity in the court system, filling prisons with low-level, largely black street dealers instead of focusing on drug kingpins.

U.S. District Judge Raymond A. Jackson in Norfolk also shares in the victory. He sentenced the Norfolk veteran, Derrick Kimbrough, to a prison term four to seven years below federal guidelines for having a small amount of crack.

The Justice Department challenged Jackson's decision and initially won before the 4th U.S. Circuit Court of Appeals in Richmond. The Supreme Court decision reverses the appeals court ruling and upholds Jackson's decision.

In a 7-2 vote, the Supreme Court decided that federal judges can impose shorter prison terms than recommended in federal sentencing guidelines for defendants convicted of having small amounts of crack. The ruling gives judges discretion in correcting the disparity between punishments for possession of crack cocaine versus powder cocaine.

For example, possession of 5 grams of crack yields a mandatory minimum prison term of five years, whereas possession of 5 grams of powder cocaine amounts to a misdemeanor punishable by up to a year in jail.

Kimbrough's attorney, Michael Nachmanoff, the federal public defender for the Eastern District of Virginia, praised the court's ruling.

"We could not be more pleased," he said. "We're delighted with the result."

Kimbrough, 39, is not expected to get out of prison any time soon. He is only three years into a 15-year sentence, with a projected release date of 2017. Part of his sentence is a mandatory five years for having an illegal gun.

But the ruling could affect some 19,000 federal prisoners. The U.S. Sentencing Commission, an arm of the federal judiciary, is scheduled to meet today to decide whether the court's decision should be made retroactive, which would cut years off the prison terms of defendants in situations similar to Kimbrough's.

"A reviewing court could not rationally conclude that the (four- to seven-year) sentence reduction Kimbrough received was an abuse of discretion," Justice Ruth Bader Ginsburg wrote for the majority.

Justices Samuel Alito and Clarence Thomas dissented, arguing that Congress, which passed the crack sentencing laws, should address the issue, not the high court.

The Justice Department, which argued that Kimbrough should have received 19 to 22 years, echoed Alito and Thomas.

"Today's opinion highlights the need for Congress to pass legislation that will clarify federal sentencing policy to help ensure that it is consistent, tough, fair and predictable," the department said in a statement, adding: "While we are disappointed with the ruling, we respect the Court's decision."

Jackson issued a brief statement Monday but declined detailed comment.

"This decision will provide significant assistance to federal trial judges in sentencing," he said. "It clarifies the scope of the discretion that sentencing judges have in sentencing individuals for crack cocaine violations."

Jackson, a federal prosecutor who in 1993 became the first black federal judge in the district, has a history of concern over crack cocaine disparities.

Just after his appointment, he angered federal prosecutors by tossing out charges against suspected crack cocaine dealers, citing possible racial bias against blacks.

A spokesman for U.S. Attorney Chuck Rosenberg, whose office sought a stiff sentence for Kimbrough, declined to comment Monday.

Norfolk defense attorney Andrew Protogyrou said he expects his phone to start ringing with requests for sentence reductions from crack defendants he has represented.

"People are going to ask, 'Is my case applicable?' " he said Monday.

Protogyrou said he understood Jackson's issue with the racial disparity in crack cocaine cases.

"In 21 years of practice, I think I've had one crack defendant who was white, and I'm talking out of hundreds of defendants," he said.

Tim McGlone, (757) 446-2343, tim.mcglone@pilotonline.com