Last week, the Supreme Court addressed an issue ripped from the headlines -- or at least the Op-Ed pages. Should the possession of crack cocaine lead to a significantly longer prison sentence than possession of the powder variety?
The 100-1 disparity in punishment for crack or powder cocaine is irrational, and it disproportionately affects African Americans; those are reasons enough to strike that disparity forthwith. But the court will be inviting another injustice if it rules that judges are free to disregard sentencing guidelines altogether because they disagree with their underlying rationale.
In the popular imagination, it's a judge who decides how many years in prison -- if any -- a convicted criminal will serve. In the federal courts, however, sentences are also shaped by Congress, which sets minimum and maximum penalties, and the U.S. Sentencing Commission, a body created by Congress in 1984 to reduce disparities in sentences imposed for the same crime. Some of those efforts have produced painful results. Many of the mandatory minimums, for instance, were driven by politics and have created unduly harsh sentences. The need for guidelines of some sort, however, remains. Defendants convicted of similar offenses should receive comparable treatment.
The commission produces elaborate guidelines for sentences, based on a variety of factors. Originally the guidelines were mandatory (though in exceptional cases a judge could depart from them). But in 2005, the Supreme Court ruled that, because some of the factors in the guidelines leading to harsher punishment weren't submitted to juries, the guidelines should be treated as "advisory."