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Posted April 11, 2012

Judge Known for Federal Sentencing Reforms Says More Progress Needed

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U.S. Judge Raymond A. Jackson '73 gave the 2012 Ola B. Smith Lecture, titled "Federal Sentencing Post-Booker: An Insider's View."

U.S. Judge Raymond A. Jackson '73, whose district court decision in a drug case led to a U.S. Supreme Court ruling clarifying how judges may impose sentences for crimes involving crack cocaine, said Monday at the University of Virginia School of Law that statutory federal sentencing requirements remain a problem for judges.

Contact: Brian McNeill

Jackson, who was appointed by President Clinton to the U.S. District Court for the Eastern District of Virginia in 1993, explained the Kimbrough decision, which affirmed district judges' right to exercise discretion in drug cases beyond federal sentencing guidelines, as well as some of the case history that preceded that 2007 Supreme Court ruling.

He said anti-crime legislation that Congress passed in the 1980s robbed judges of judicial discretion.

Improvements only came recently, Jackson said. In Kimbrough and other decisions in the past decade, he said, "the Supreme Court was attempting to give federal judges the authority they need to do one of the primary things they're responsible for doing, and that's to sentence people fairly. But the problem is, this is still a work in progress."

Consecutive sentences and mandatory minimums continue to be a problem, he said.

"They circumscribe the court's authority in more cases than you will ever suspect," he said.

The Comprehensive Crime Control Act of 1984 (and its related Sentencing Reform Act) abolished the federal parole system, established the U.S. Sentencing Commission and moved to increase consistency in federal sentences. Two years later, the Anti-Drug Abuse Act of 1986 enacted mandatory minimum sentences for drug offenses.

"The purpose of mandatory minimums is to control the judge," Jackson said. "It transfers discretion from a seasoned judge to a prosecutor who has no, or little, experience."

The Supreme Court's 2005 decision in United States v. Booker was the first major decision to restore some power back to judges, Jackson said. In the original sentencing, "the judge found he [Booker, the defendant,] distributed 566 more grams of cocaine than the jury found," he said.

As a result, Booker received a dramatically increased sentence, which he appealed on Sixth Amendment grounds that he should only be punished based on what the jury found beyond a reasonable doubt.

Booker won, and the Supreme Court decision made the federal sentencing guidelines advisory, not mandatory, while still instructing federal appeals courts to review criminal sentences for "reasonableness."

Jackson said federal prosecutors feared district judges would "go nuts" following the decision, a fear that turned out to be unfounded.

"Every time you impose a sentence, you're always looking over your shoulder to see that you've imposed a sentence that's not going to get reversed," he said.

In Jackson's own lower-court decision for Kimbrough, which went to the Supreme Court two years after Booker, the Supreme Court confirmed specifically that district judges have the right to impose sentences outside of the federal sentencing guidelines for cases related to the possession, distribution and manufacture of crack cocaine.

Jackson had originally imposed the minimum federal sentence of 15 years, which was still more than what Kimbrough would have received if he had only involved himself with powder cocaine, rather than both crack and powder cocaine.

The 4th U.S. Circuit Court of Appeals vacated the sentence on the grounds that it was unreasonable because it fell outside of the guidelines range, but the Supreme Court upheld the sentence.

"Kimbrough was facing, under the advisory guidelines, 19 to 22 years," Jackson said. "The same sentence, had you considered it was powder cocaine, would have been 8 to 8.8 years, so even with the mandatory minimum, we already had what I believed was sufficient."

Jackson said when a clerk brought him the Supreme Court's opinion in Kimbrough, he "went old school."

"I went into my chambers, I whipped out a cassette tape, and I threw it in the boom box I had – and I played a bar of the 'Hallelujah' chorus!"

REPORTED BY ERIC WILLIAMSON