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From NPR News, this is ALL THINGS CONSIDERED. I'm Michele Norris.
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And I'm Robert Siegel.
Today, the U.S. Supreme Court heard arguments in two cases, testing the limits of judicial discretion in federal sentencing. Judges used to have wide discretion in sentencing. But in 1984, Congress set up a commission to establish guidelines that would promote uniformity in sentencing. The guidelines turned out to be, for all practical purposes, binding.
Well, two years ago, the Supreme Court ruled that the guidelines, if binding, would be unconstitutional, and thus, they can only be advisory. But just what does advisory mean? That's the question post in today's cases.
NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG: The first case up this morning involved an Iowa man named Brian Gall, who briefly became ensnared in an ecstasy ring while in college. After seven months, he quit the ring, stopped drinking, went on to graduate, get a job, and start a business.
Five years later, after authorities learned of his one-time involvement, he pleaded guilty. The sentence recommended in the sentencing guidelines was 30 to 37 months, but the judge sentenced him to three years probation instead.
A federal appeals court overturned the sentence as unreasonably light. Gall appealed to the Supreme Court contending that if the sentencing guidelines are really advisory, then the appeals court is not free to second-guess a judge just because the sentence is lower than the guidelines.
Today, the justices wanted to know what the criteria should be for determining when a sentence is unreasonable. Defense lawyer Jeffrey Green(ph) replied that as long as the judge relies on legitimate factors in sentencing and rationally explains the sentence, it is presumptively reasonable.
Chief Justice Roberts: What's left for appellate review then? Answer: To determine if there was an abusive discretion. Anything more than that, said Green, would create a system in which judges would not risk deviating from the guidelines. Here, he said, the judge relied on traditional sentencing factors and did not abuse his discretion.
Justice Ginsburg: Then, what would fail the abusive discretion test? Green pointed to a couple of cases. For example, one, where a court sentenced a defendant to more time than the sentencing guidelines recommended because the defendant had written a fraudulent check to the court itself.
Defending the guidelines as presumptively valid was Deputy Solicitor General Michael Dreeben. A sentence should be deemed unreasonable if it departs significantly from the guidelines, he said.
Justice Scalia: Then you're just blowing smoke when you say the guidelines are advisory.
Justice Breyer: What we want is a way to interpret reasonableness so that a judge can consider facts that would put a sentence outside the guidelines. Just how to do that, however, seemed unclear.
The court then moved on to today's second case. It involves the disparity in sentences for crack versus powder cocaine, when crack offenders are mainly black, and cocaine offenders mainly white. Under federal law, a defendant convicted of trafficking in five grams of crack gets the same mandatory five-year sentence that someone would get for trafficking in 500 grams of cocaine. That 100-to-1 ratio is then carried over in the sentencing guidelines, and sentences are further ratcheted up.
In the case before the court, a judge sentenced a Gulf War veteran with no felony record to the mandatory 15 years for his crimes. But the judge refused to add on another four years required by the guidelines, calling them ridiculous. A federal appeals court reversed the sentence.
And today, Deputy Solicitor General Dreeben argued that the guidelines were an implicit extinction of the mandatory minimum enacted by Congress. He noted that when the sentencing commission wanted to equalize the crack and cocaine sentences, Congress vetoed the idea.
Chief Justice Roberts: But Congress only said that the penalty for crack should, quote, "generally exceed the penalty for cocaine." That's hardly 100-to-1.
Public defender Michael Nacmanoff defended the 15-year sentence, noting that the court had said that mandatory minimums trumped the sentencing guidelines. All the sentencing judge did, said Nacmanoff, was impose the long mandatory sentence and say that adding on another four years as recommended in the sentencing guidelines was ridiculous because it was more time than was needed to meet the purposes of punishing a man with no previous felony record.
The Supreme Court's eventual decision on these sentencing questions is expected some time next year.
Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.
