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A New Era of Fairer Sentencing

Michael L. Doyle, Esq. on 1/7/2010

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In two recent decisions the Third Circuit decision, U.S. v. Olhosky, 2009 WL 1014482 and U.S. v. Tomko, 2009 WL 1025876, the Court indicated that District Judges are in the best position to determine the appropriateness of a sentence.  Olhovsky was significant because the Third Circuit Court of Appeals overturned a sentence that was already below the guidelines because the District Judge did not “consider a less retributive and incapacitative sentence.”  The following day the Tomko decision was published, in which the Court refused to overturn a sentence of fine and probation, which in the past would have surely resulted in prison time. 

It is well known that the war on drugs has been a major factor in the increase of the prison population in the United States since the 1980’s.  As a result of the Anti-Drug Abuse Act of 1986 and the Federal Sentencing Guidelines, individuals charged with offenses related to crack cocaine face sentences far greater than those charged with powder cocaine offenses.  Since powder cocaine is more common among whites and crack cocaine is more common among minorities, the result has been that the war on drugs has disproportionately affected minorities.  While there is little debate about the negative impact drugs have on society, the disparity allows low level dealers of cocaine a chance at rehabilitation while low level dealers of a similar amount of crack face much stiffer penalties and makes recidivism substantially more likely.

The United States Sentencing Commission recognized that,

“[m]ost crack cocaine offenders receiving sentences greater than five years are low-level street dealers.  For no other drug are such harsh penalties imposed on such low level offenders.  High penalties for relatively small amounts of crack cocaine appear to be misdirecting federal law enforcement resources away from serious traffickers and kingpins toward street-level retail dealers.”  

They also acknowledged the disproportionate affect that this policy has on minorities by stating that the “[crack/powder] ratio is a primary cause of the growing disparity between sentences for Black and White federal defendants. 

Some Judges have attempted to address this disparity, however downward departures from the Federal Sentencing Guidelines have been highly scrutinized.  In 2005 U.S. v. Booker, 543 U.S. 220 (2005) the court determined the Sentencing Guidelines were advisory and allowed District Judges more discretion in sentencing.  In 2007, Rita v. U.S., 127 S.Ct. 2456, 2468 (2007) limited the ability of Appellate Courts to overturn sentences made by the District Judge when the record reflects there was “a reasoned basis for exercising his own legal decision making authority.”  Also in 2007, in U.S. v. Kimbrough, 128 S. Ct 558 (2007) the Court determined that District Court Judges could reject the crack/powder ratio when sentencing in order to allow them to address the crack/powder discrepancy.

Although neither Olhosky or Tomko directly involves the crack/powder issue that has contributed to the disparity in the prison population, it shows that future efforts to address this issue are less likely to be thwarted.  Greater deference will now be given to Federal District Judges, many of whom were previously stymied in their efforts to provide more appropriate sentences.  On April 29, 2009, Assistant Attorney General Lanny A. Breuer expressed the position of the Obama Administration in an address to the Senate Judiciary Subcommittee on Crime and Drugs, stating “most in the law enforcement community now recognize the need to reevaluate federal cocaine sentencing policy-and the disparity the policy creates.”   These are certainly positive developments, however, the question still remains as to why this is still unchanged when it was known fifteen years ago that there was no legitimate explanation for the discrepancy, and that it created a racial disparity in sentencing?                                            

United States Sentencing Commission, Fifteen Years of Guidelines Sentencing: An Assessment of How Well the Federal Criminal Justice System is Achieving the Goals of Sentencing Reform (2004) at 132.

United States Sentencing Commission, Special Report to the Congress: Cocaine and Federal Sentencing Policy (Feb. 1995) at 163. 



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