Closing the Punishment Gap

This past Monday, the U.S. Supreme Court ruled in favor of good judicial sense. In two separate, simultaneously issued rulings, the court determined that federal judges ought to have the freedom to hand down just sentences, even if they contradict federal sentencing guidelines.

One of the court’s decisions focused on the disparities between jail sentences given to users of crack cocaine and those doled out to users of the drug in powder form. Following the court’s lead, the U.S. Sentencing Commission changed its sentencing guidelines to close the gap between the punishments given to users of each drug. We applaud these two decisions, as they not only empower judges to ensure that penalties are appropriately suited to the particular circumstances of each individual crime but also help to counteract the injustice of punishing users of one drug much more harshly than those who consume another very similar one.

Although much of the attention given to the court’s ruling has focused on the particulars of drug sentencing, one of its most important dimensions is its affirmation of a critical jurisprudential principle: that judges ought to have the authority to guarantee that the punishments they dictate fit the crimes for which they are given. Unlike the mandatory minimum sentences mandated by many state legislatures, sentencing guidelines are not absolutely binding, yet appeals courts have a tendency to overturn lower judges’ sentences when they diverge substantially from the guidelines’ suggestions. Although these regulations are useful tools that improve consistency in sentencing, they can constrain judges by preventing them from considering cases in light of mitigating circumstances. Empowering judges to evaluate cases more thoroughly, without fear of being overruled by an appeals court, will free judges to assign the most appropriate punishments.

The case of crack cocaine illustrates just how important this judicial freedom is. Though derivatives of the same chemical substance, crack and powdered cocaine violations are punished very differently. According to what has been deemed the “100-to-1” rule, federal guidelines suggested a 10-year sentence for possession of 5,000 grams of powder cocaine and the same sentence for possession of 50 grams of the drug in crack form. These guidelines were first crafted in the 1980s: While the social climate of the period—in which crack was seen as a unique and devastating contributor to crime, violence, and urban decay—may help to explain such disparate punishments, it hardly justifies them.

Though few today see crack cocaine as a more dangerous threat to American society as other highly addictive drugs, legal observers have noticed one important difference between crack and other drugs: those convicted of crack violations are overwhelmingly black. While 27 percent of those convicted of crimes related to powder cocaine are black, the figure jumps to an astounding 85 percent for crack. As Sentencing Commission member Judge William K. Sessions III argued in announcing the decision, “justice is, and must always be, colorblind”—an impossibility when the use of a drug associated with one community is punished much more harshly than the use of a very similar drug favored by another.

Nevertheless, we retain many qualms with national drug and mandatory minimum sentencing laws. Although they stop short of addressing all of them, the Supreme Court and Sentencing Commission decisions do take a positive step by empowering judges to consider every case individually and by helping to close the gap between punishments for power and crack cocaine. For this, we are heartened, and hope that these recent rulings will point the way to a fairer and more equitable judicial system.