STEVE INSKEEP, host:
Next, we'll examine who decides how long you would stay in prison if you committed a crime. By tradition, a judge has wide latitude to hand down the sentence. But in recent years, Congress put guidelines in place that forced stricter sentences for many crimes. In 2005, the Supreme Court blocked those guidelines. The court said they can only be advisory. The guidelines are advice to a judge, not an order. Today, the Supreme Court hears two more cases that could better define what that means.
Here's NPR legal affairs correspondent, Nina Totenberg.
NINA TOTENBERG: Advisory does not mean sentencing judges have carte blanche to do what they want, the Supreme Court said, because appeals courts still have the power to reverse sentences deemed to be unreasonable. But what is an unreasonable sentence?
Last term, the court said that if a judge imposes a sentence that falls within the guidelines, it can be presumed to be reasonable. But what if it falls outside the guidelines? Is it presumptively unreasonable?
Today's cases seek to answer that question. One case involves an Iowa man named Bryan Gall who, while in college, became ensnared in an ecstasy ring. After eight months of buying the drug for himself and selling it others, he had some sort of a wakeup call and quit, telling the dealers he'd been doing business with that he wanted nothing more to do with them.
Gall spent the next two years focusing on his studies, graduated from the University of Iowa and then moved to Arizona for a job in the construction industry. Three years after he quit, the drug ringleaders were caught and to win favor with prosecutors rolled on Gall. Contacted by federal agents, Gall admitted his one-time involvement, and a year later when he was indicted, he voluntarily returned to Iowa. He started his own construction business, which by all accounts has been quite successful, and pleaded guilty.
The district court judge rejected the 30 to 37 month sentence recommended in the federal guidelines and sentenced Gall to three years of probation. But the 8th Circuit Court of Appeals overruled the sentence, declaring it to be unreasonably light. The Appeals Court said that unless there are some extraordinary circumstance the sentencing judge is required to stick to the guidelines.
Gall appealed to the Supreme Court, contending that the sentencing judge had relied on legitimate factors in reaching his decision, and that the Appeals Court could not, in such circumstances, just substitute its judgment for the sentencing judge who's supposed to be given great deference in these matters. Lawyer Jeff Green, who represents Gall, says that if in fact the guidelines are advisory, then the role of the Appeals Court should be limited to getting rid of sentences that are extreme outliers.
Mr. JEFF GREEN (Brian Gall's lawyer): When a district judge articulates, on the record, a reasoned judgment that is based upon factors that Congress has set forth, that is not a decision that the appellate court can overturn.
TOTENBERG: The government counters that without aggressive appellate review, there will be too many disparities in sentencing, with some getting unduly harsh sentences and some unduly light.
A second sentencing case present the ultimate in disparate sentencing but this time sanctioned, at least in part, by law. The disparity is one hundred to one in the punishment for crack versus powder cocaine. Under federal statutes, trafficking in five grams of crack earns the defendant the same mandatory minimum five-year penalty that he would get for 500 grams of powder cocaine.
Critics argue the main difference is the race of the offender with 80 percent of crack defendants is black and three quarters of cocaine defendant is white. In the case before the court, a judge sentenced a Gulf war veteran with no felony record to 15 years in prison, which was the mandatory minimum for his crimes. But the judge refused to add on another four years called for by the advisory guidelines, saying the guidelines on this question were ridiculous.
The government contends the judge wasn't free to impose his own policy preference in the sentence. But public defender Michael Nachmanoff counters that if the sentencing guidelines are really advisory, as the Supreme Court said they have to be, then…
Mr. MICHAEL NACHMANOFF (Public defender): Courts have to be free to impose sentences outside the guideline range in order for the sentencing scheme to be constitutional.
TOTENBERG: The government may win either or both of these sentencing cases. But it will be an uphill fight. No organization - not the U.S. Sentencing Commission, which writes the federal sentencing guidelines, not even any member of Congress - has filed a brief on the government's side. It is the first time in memory the government has been so without allies on a sentencing question.
Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.
