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Court Opinions ›› Kimbrough v. United States (2007)
DERRICK KIMBROUGH, PETITIONER v. UNITED STATES
No. 06-6330 SUPREME COURT OF THE UNITED STATES 128 S. Ct. 558; 169 L. Ed. 2d 481; 2007 U.S. LEXIS 13082; 76 U.S.L.W. 4023; 21 Fla. L. Weekly Fed. S 22 October 2, 2007, Argued December 10, 2007, Decided Defendant pleaded guilty to drug trafficking offenses involving both powder and crack cocaine, and defendant was sentenced below the range of the U.S. Sentencing Guidelines Manual based on the disparity between sentences for powder and crack cocaine. Upon the grant of a writ of certiorari, defendant appealed the judgment of the United States Court of Appeals for the Fourth Circuit which reversed the sentence. For sentencing purposes, an amount of crack cocaine was the equivalent of 100 times such amount of powder cocaine, and defendant contended that this unwarranted disparity was properly determined by the sentencing court to have a disproportionate and unjust effect under the Guidelines. The government agreed with the lower appellate court that defendant's sentence outside the Guidelines range was per se unreasonable because it was based on disagreement with the crack/powder disparity. The U.S. Supreme Court held that the crack/powder disparity was not an exception to the rule that the Guidelines were advisory, and the sentencing court was entitled to consider the effect of the disparity in determining the appropriate sentence for defendant. Although the disparity was a creature of statute, the statute by its terms mandated only maximum and minimum sentences and did not require any specific sentence within those ranges. Further, the congressional rejection of proposed equality of drug amounts did not indicate that the 100:1 ratio was appropriate, and Congress in fact required a recommendation for a revision of the ratio.
The judgment reversing defendant's sentence was reversed, and the case was remanded for further proceedings. 7-2 decision; one concurrence; two dissents.
..[T]he Commission itself has reported that the crack/powder disparity produces disproportionately harsh sanctions, i.e., sentences for crack cocaine offenses "greater than necessary" in light of the purposes of sentencing... [...] Given all this, it would not be an abuse of discretion for a district court to conclude when sentencing a particular defendant that the crack/powder disparity yields a sentence "greater than necessary" ...
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Crack and powder cocaine are two forms of the same drug. Powder cocaine, or cocaine hydrochloride, is generally inhaled through the nose; it may also be mixed with water and injected. [...] Crack cocaine, a type of cocaine base, is formed by dissolving powder cocaine and baking soda in boiling water. The resulting solid is divided into single-dose "rocks" that users smoke. The active ingredient in powder and crack cocaine is the same. The two forms of the drug also have the same physiological and psychotropic effects, but smoking crack cocaine allows the body to absorb the drug much faster than inhaling powder cocaine, and thus produces a shorter, more intense high.
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The crack/powder disparity originated in the Anti-Drug Abuse Act of 1986 (1986 Act), 100 Stat. 3207. [...] The 1986 Act uses the weight of the drugs involved in the offense as the sole proxy to identify "major" and "serious" dealers. For example, any defendant responsible for 100 grams of heroin is subject to the five-year mandatory minimum, and any defendant responsible for 1,000 grams of heroin is subject to the ten-year mandatory minimum.
Crack cocaine was a relatively new drug when the 1986 Act was signed into law, but it was already a matter of great public concern: "Drug abuse in general, and crack cocaine in particular, had become in public opinion and in members' minds a problem of overwhelming dimensions." [...] Congress apparently believed that crack was significantly more dangerous than powder cocaine in that: (1) crack was highly addictive; (2) crack users and dealers were more likely to be violent than users and dealers of other drugs; (3) crack was more harmful to users than powder, particularly for children who had been exposed by their mothers' drug use during pregnancy; (4) crack use was especially prevalent among teenagers; and (5) crack's potency and low cost were making it increasingly popular. [...] Based on these assumptions, the 1986 Act adopted a "100-to-1 ratio" that treated every gram of crack cocaine as the equivalent of 100 grams of powder cocaine. The Act's five-year mandatory minimum applies to any defendant accountable for 5 grams of crack or 500 grams of powder, 21 U.S.C. § 841(b)(1)(B)(ii), (iii); its ten-year mandatory minimum applies to any defendant accountable for 50 grams of crack or 5,000 grams of powder, § 841(b)(1)(A)(ii), (iii). [...]
Although the [Sentencing] Commission immediately used the 100-to-1 ratio to define base offense levels for all crack and powder offenses, it later determined that the crack/powder sentencing disparity is generally unwarranted. In a series of reports, the Commission identified three problems with the crack/powder disparity.
First, the Commission reported, the 100-to-1 ratio rested on assumptions about "the relative harmfulness of the two drugs and the relative prevalence of certain harmful conduct associated with their use and distribution that more recent research and data no longer support.", see United States Sentencing Commission, Report to Congress: Cocaine and Federal Sentencing Policy 8 (May 2007), available at http://www.ussc.gov/r_congress/cocaine2007.pdf (hereinafter 2007 Report) (ratio Congress embedded in the statute far "overstates" both "the relative harmfulness" of crack cocaine, and the "seriousness of most crack cocaine offenses"). For example, the Commission found that crack is associated with "significantly less trafficking-related violence . . . than previously assumed." 2002 Report 100. It also observed that "the negative effects of prenatal crack cocaine exposure are identical to the negative effects of prenatal powder cocaine exposure." Id., at 94. The Commission furthermore noted that "the epidemic of crack cocaine use by youth never materialized to the extent feared." Id., at 96. Second, the Commission concluded that the crack/powder disparity is inconsistent with the 1986 Act's goal of punishing major drug traffickers more severely than low-level dealers. Drug importers and major traffickers generally deal in powder cocaine, which is then converted into crack by street-level sellers. [...] Finally, the Commission stated that the crack/powder sentencing differential "fosters disrespect for and lack of confidence in the criminal justice system" because of a "widely-held perception" that it "promotes unwarranted disparity based on race." 2002 Report 103. Approximately 85 percent of defendants convicted of crack offenses in federal court are black; thus the severe sentences required by the 100-to-1 ratio are imposed "primarily upon black offenders." Ibid. [...]
..[H]ere the Court holds that sentencing courts are free to reject the Sentencing Guidelines' 100-to-1 crack-to-powder ratio. These outcomes may be perfectly reasonable as a matter of policy, but they have no basis in law.
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