The Biggie before the Nine Robed Ones, of course, is the crack-cocaine case.  As most criminal lawyers know, Federal law provide a 100-1 disparity in sentencing:  you can get the same time for possessing 5 grams of crack cocaine as you can get for possessing 500 grams of powder.  At issue in the Supreme Court case is the fate or Richard Kimbrough, a former Gulf War vet who turned to dealing in crack.  He pled guilty to trafficking, and the Sentencing Guidelines would’ve given him a sentence between 19 and 22 years.  The judge labeled that “ridiculous,” and instead handed down a slap on the wrist of a mere 15 years.  That wasn’t good enough for the government, which appealed, nor the appellate court, which reversed the sentence on the grounds that the judge hadn’t given a good enough reason for such a large downward departure. 

So apparently, the Supreme Court is going to have to decide whether adequate grounds for departure are “this law’s so stupid it makes my bones hurt.”  The wisdom of the law, of course, isn’t at issue here; only what a trial court can consider in deciding how much consideration to give the guidelines.  Almost three years ago, the Court held that the Guidelines were merely advisory, not mandatory.  The courts of appeals have given lip service to that ruling, reversing twenty out-of-guidelines sentences for every one it affirms. 

The problem, of course, is the inevitable tension in any sentencing scheme between allowing judges discretion, and achieving some degree of uniformity and consistency.  The Court took a stab at it again last year in Rita v. US, holding that the courts of appeals could presume that a within-guidelines sentence was “reasonable.”  If that was intended to stress the discretionary aspect of sentencing, it didn’t work; in fact, the 7th Circuit has read Rita to mean that a defendant’s appeal of a within-guidelines sentence is frivolous.

As for the 100-1 disparity, that might change.  The US Sentencing Commission has agreed that it’s whack, and proposed a change that will go into effect on November 1, essentially reducing crack sentences by an average of about 16 months.  I should say, may go into effect:  it will go into effect unless Congress blocks it, which it’s done the previous three times the Commission suggested the change.  Even if Congress doesn’t block it, the new rules are somewhat limited in who they effect, because there are statutory minimums (5 years for 5 grams of crack, 10 years for 50), which Congress itself would have to change.  The Commission has recommended that Congress do so, but don’t hold your breath.

Closer to home, on Wednesday the Ohio Seven will be hearing oral argument on Thursday in State v. Price, an eminently goofy decision out of the 2nd District last year.  Price’s wife had obtained a civil protection order which prohibited him from contacting her or the children; the couple was divorced shortly thereafter, with the decree providing that Price was to have visitation at the discretion of his ex-wife.  Things worked fine for several years, until the ex-wife decided to claim that Price had violated the CPO by doing such dastardly things as leaving three messages on her voicemail telling his son that he loved him, and dropping off an Easter basket for the child.  The issue before the Court is whether the divorce decree effectively terminated the no-contact provision of the CPO, but hopefully the court will also devote some time to the question of on what planet a prosecutor, a trial judge, and two appellate judges could have concluded that this constituted a violation of the order in the first place.

The other criminal case on tap for Thursday is State v. Johnson, which deals with RC 2929.13(F).  That section makes a prison sentence mandatory for various crimes, including rape and, in certain circumstances, gross sexual imposition of a child.  The 12th District had interpreted the section to mean that mandatory, consecutive sentences were required in cases where the defendant was convicted of multiple counts of the crime; other appellate courts have come to a different conclusion, and the Court certified the conflict.

Oh, and there’s a big PUCO case up for argument this Wednesday.  As my regular readers know, utility cases are my first love, so I’ll probably spend all next week delving into the details of this one.

If I can schedule a lobotomy for this weekend, that is.

“I’d rather have a bottle in front of me than a frontal lobotomy.” — Anonymous