Judicial Notebook

In 2007, the Supreme Court heard the case of Kimbrough v. United States, which raises the question: What does the reasonable standard mean for District Court sentencing?

Case background

In September 2004, a trial judge sentenced defendant Derrick Kimbrough to 15 years to life in prison when he pleaded guilty to three drug-related offenses involving possession and intent to distribute crack and powder cocaine, and one additional count of possessing a firearm in connection with the drug charges. The U.S. Sentencing Guidelines applied to these offenses recommended a higher minimum sentence between 19 and 22 and a half years, but the trial judge determined that in this particular case that sentence was "greater than necessary" to fulfill the objectives of a sentence for this defendant.

The discrepancy largely came from the Anti-Drug Abuse Act of 1986, which set minimum sentences for cocaine possession with intent to distribute by adopting a "100-to-1 ratio" for each gram of crack compared to powder cocaine. Congress, at the time, reasoned that the distinction reflected the greater danger and harm that resulted from crack cocaine relative to powder. The Sentencing Commission adopted the "100-to-1" ratio that Congress used to set a minimum sentence for crack versus powder cocaine rather than using its standard empirical approach, which based sentences on those that the district courts typically had handed out for similar criminal acts.

In the United States v. Booker, 125 S.Ct. 738 (2005), the Supreme Court held that the sentencing guidelines were not binding on sentencing judges but were advisory. Furthermore, trial judges' sentences only needed to be "reasonable" to withstand appellate level review. Booker required district court judges to "'impose a sentence sufficient, but not greater than necessary' to accomplish the goals of sentencing" while taking into consideration several additional factors, including "'the nature and circumstances of the offense, the history and characteristics of the defendant, the sentencing range established' by the Guidelines, 'any pertinent policy statement' issued by the Sentencing Commission" and "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct."

The Supreme Court weighs in

In Kimbrough v. United States, the government contended that the sentence that the trial judge imposed was not reasonable given the 100-to-1 ratio implied in the sentencing guidelines. However, Justice Ruth Bader Ginsburg along with six other justices concluded that while trial judges must take the guidelines into consideration, deviating from them in Kimbrough's case was not an abuse of the reasonableness sentencing standard. The court relied in part on the unsuccessful efforts of the Sentencing Commission to persuade Congress to reform the statute to eliminate or greatly modify the implied 100-to-1 ratio for those possessing crack as opposed to powder cocaine. In fact, the current guidelines (2007) have lowered that ratio considerably.

The government unsuccessfully argued that allowing trial judges to lower sentences outside the guideline minimum would produce results such that "defendants with identical real conduct will receive markedly different sentences, depending on nothing more than the particular judge drawn for sentencing. The Supreme Court recognized this as a possibility, but concluded that appellate review for reasonableness, coupled with continued revision of the guidelines, would limit the disparities that would arise in sentencing convicted felons.

Of interest to psychologists

Kimbrough suggests that trial judges will violate the reasonableness standard if they replace specific statutes with their own guidelines for the more general case. However, when they consider the specifics of a case and adjust sentences accordingly, judges may sentence outside the guidelines without violating the reasonableness test. While many may applaud the specific outcome in this case because it assails the disparity between crack and powder cocaine sentencing-that mainly disadvantages black defendants-it opens the door for sentencing inconsistencies. The government's arguments invite empirical investigation of the disparities in sentencing that might result when judges deviate from guideline recommendations.

At the very least, academic psychologists should be interested in modeling the factors that lead to such deviations. Psychologists studying trial procedure could use simulated trials and archival data sets to examine the role of situational factors and individual differences in judicial sentencing. While Kimbrough opens the door wide for judicial discretion in sentencing, data that demonstrate and explain variations in sentences for defendants committing similar criminal acts could raise the issue as one that the courts and legislatures will need to reconsider in future policy decisions.

"Judicial Notebook" is a project of APA Div. 9 (Society for the Psychological Study of Social Issues).