Dallas, Texas. -- The U.S. Court of Appeals

    No. 06-6330

In  THE

Supreme (Court of % HttUrfr ^tatra
Derrick Kimbrough,

Petitioner,

v.

United States,
Respondent.

On Writ of Certiorari to the 
United States Court of Appeals 

for the Fourth Circuit

BRIEF AMICUS CURIAE OF THE NAACP LEGAL 
DEFENSE & EDUCATIONAL FUND, INC. IN 

SUPPORT OF PETITIONER

Theodore M. Shaw 
Director-Counsel 

Jacqueline A. Berrien 
Christina Swarns 
Johanna Steinberg 
NAACP Legal Defense & 

Educational Fund, Inc. 
99 Hudson Street, 16th Floor 
New York, NY 10012 
(212)965-2200

July 26, 2007 _________

Ian Heath Gershengorn* 
Lindsay C. Harrison 
Jenner & Block LLP 
601 13th Street N.W. 
Washington, DC 20005 
(202) 639-6000

* Counsel o f Record



TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES................................................... iii

INTEREST OF AMICUS CURIAE...........................................1

INTRODUCTION AND SUMMARY OF ARGUMENT.... 2

ARGUMENT..............................................     4

I. THE RACIAL DISPARITIES PRODUCED BY
APPLICATION OF THE CRACK COCAINE 
SENTENCING GUIDELINES PROMOTE 
DISRESPECT FOR THE LAW...................................4

A. The Crack Cocaine Sentencing Guidelines
Have Resulted in Vast Racial Disparities...... 4

B. The Racial Disparities Associated with the
Crack Cocaine Sentencing Guidelines 
Have Caused Widespread Distrust of the 
Law..................................................................... 8

II. A DISTRICT COURT’S CONSIDERATION OF
THE SEVERE RACIAL DISPARITIES 
RESULTING FROM APPLICATION OF THE 
FEDERAL SENTENCING GUIDELINES IS 
REASONABLE UNDER FEDERAL LAW............. 13

A. Consideration of Racial Disparities in 
Cocaine Sentences is Consistent with 
Booker, Rita, and 18 U.S.C. § 3553(a)......... 13



B. Courts Can Properly Consider the 
Disparities Caused by the Crack Cocaine 
Guidelines as Part of an Individualized

ii

Sentence Determination Without 
Categorically Rejecting the Ratio or the 
Guidelines...................................................... . 15

C. The District Court, in Sentencing Mr. 
Kimbrough, Engaged in an Individualized 
Evaluation of the Statutory Factors
Consistent with Federal Law.........................16

CONCLUSION.......................................................................18



Ill
TABLE OF AUTHORITIES

CASES
Banks v. Dretke, 540 U.S. 668 (2004)...............................2

Johnson v. California, 545 U.S. 162 (2005).................... 2

Miller-El v. Cockrell, 537 U.S. 322 (2003)......................2

Miller-El v. Dretke, 545 U.S. 231 (2005)...... .................. 2

People v. Worthy, Index No. 3550/97 (Sup. Ct.
N.Y. County, Sept. 16, 2005)...................................... 1

Rita v. United States, 127 S. Ct. 2456
(2007).....................................................3 ,4, 13, 14, 15

United States v. Booker, 543 U.S. 220 (2005)...........3, 13

United States v. Clary, 846 F. Supp. 768 (E.D.
Mo. 1994), rev’d, 34 F.3d 709 (8th Cir. 1994)......... 11

United States v. Eura, 440 F.3d 625 (4th Cir.
2006)............................................................................  18

United States v. Moore, 54 F.3d 92 (2d Cir. 1995)......... 10

United States v. Patillo, 817 F. Supp. 839 (C.D.
Cal. 1993).................................................................... 11

United States v. Pruitt, 487 F.3d 1298 (10th Cir.
2007).................................................................... .......10

United States v. Ricks, No. 05-4832, — F.3d —,
2007 WL 2068098 (3d Cir. July 20, 2007).......  10, 16

United States v. Singleterry, 29 F.3d 733 (1st Cir.
1994)..................... ............................ ...........................10

United States v. Smith, 229 F.3d 1145 (4th Cir.
2000)................................................................................1

United States v. Smith, No. 2:93CR00162-001 
(E.D. Va. June 14, 2005) 1



United States v. Walls, 841 F. Supp. 24 (D.D.C.
1994) , aff’d  in part, 70 F.3d 1323 (D.C. Cir.
1995) .........................................................................  10

United States v. Willis, 967 F.2d 1220 (8th Cir.
1992)............................................................................  11

Williams v. State, No. B-3340-9907-CR (Dist. Ct.
Swisher County, Tex. June 16, 2003)......................  1

STATUTES

18 U.S.C. § 3553(a)..................................................passim

18 U.S.C. § 3553(a)(2)(A)............................................3, 14

18 U.S.C. § 3553(a)(2)(B)............................................3, 14

18 U.S.C. § 3553(a)(2)(C)............................................3, 14

21 U.S.C. § 841(b)(1)(B)...................................  4

MISCELLANEOUS
R. Richard Banks, Beyond Profiling: Race, 

Policing, and the Drug War, 56 STAN. L.
Rev. 571 (2003).........................................................  12

Alfred Blumstein, The Notorious 100:1 Crack:
Powder Disparity — The Data Tell Us that It 
Is Time to Restore the Balance, 16 Fed.
Sent’g Rep. 87(2003)............................................... 11

Donald Braman, Punishment and Accountability: 
Understanding and Reforming Criminal 
Sanctions in America, 53 UCLA L. Rev.
1143 (2006)................................................................. 12

Bureau of Justice Statistics, Compendium o f
Federal Justice Statistics, 1994 (1998)....................... 6

iv



Gabriel J. Chin, Race, The War on Drugs, and the 
Collateral Consequences o f  Criminal 
Conviction, 6 J. Gender Race & Just. 253 
(2002) ........................................................... ........................8

D.K. Hatsukami & M.W. Fischman, Crack 
Cocaine and Cocaine Hydrochloride. Are the 
Differences Myth or Reality?, 279 JAMA 
1580 (1996)............................ ....................................... .9

Human Rights Watch and The Sentencing 
Project, Losing the Vote: The Impact o f  
Felony Disenfranchisement Laws in the 
United States § II (1998), available at 
http://www.hrw.org/reports98/vote/usvot98o. 
htm#FELONY................................................................ 7

Letter from Judge John S. Martin, Jr. to Senator 
Orrin Hatch, Chairman of the Senate 
Judiciary Committee, and Congressman 
Henry Hyde, Chairman of the House 
Judiciary Committee (Sept. 16, 1997),

V

reprinted in 10 Fed. Sent’g Rep. 195 (1998).......... 10

James P. Lynch & William J. Sabol, Prisoner 
Reentry in Perspective, 3 Crime Pol’Y Rep. 1 
(2001), available at http://www.urban.org/ 
UploadedPDF/410213_reentry.PDF.......................... 7

Tracey L. Meares et al., Updating the Study o f
Punishment, 56 STAN. L. Rev. 1171 (2004)............ 12

Barbara Stone Meierhoefer, Federal Judicial 
Center, The General Effect o f Mandatory 
Minimum Prison Terms: A Longitudinal Study 
o f Federal Sentence Imposed (1992).......................... 6

http://www.hrw.org/reports98/vote/usvot98o
http://www.urban.org/


Janice Nadler, Flouting the Law, 83 TEX. L. Rev.
1399 (2005)................................................................. 12

Release, Rick Perry, Office o f the Governor, 
Governor Perry Grants Pardons to 35 Tulia 
Defendants (Aug. 22, 2003), available at 
http://www.govemor.state.tx.us/divisions/pres 
s/pressreleases/PressRelease.2003-08- 
22.0734/view..................................................   1

Steven Rickman, The Impact o f  the Prison System 
on the African Community, 34 How. L.J. 524 
(1991)............................................................................. 8

Peter H. Rossi & Richard A. Berk, U.S. 
Sentencing Commission, A National Sample 
Survey: Public Opinion on Sentencing
Federal Crimes (1995), available at 
http://www.ussc.gov/nss/jp_exsum.htm.....................12

David A. Sklansky, Cocaine, Race, and Equal
Protection, 47 Stan. L. Rev . 1283 (1995).......    11

William J. Spade, Jr., Beyond the 100:1 Ratio: 
Towards A Rational Cocaine Sentencing 
Policy, 38 Ariz. L. Rev. 1233 (1996)......................  11

William J. Stuntz, Race, Class, and Drugs, 98
Colum. L. Rev. 1795 (1998)....................................  11

The Sentencing Project, Federal Crack Cocaine 
Sentencing (2007), available at 
http://www.sentencingproject.org/Admin/Doc 
uments/publications/dp_cracksentencing.pdf....... 5, 6

Michael Tonry, Rethinking Unthinkable 
Punishment Policies in America, 46 UCLA L.
Rev. 1751 (1999).......................................................  11

http://www.govemor.state.tx.us/divisions/pres
http://www.sentencingproject.org/Admin/Doc


Tom R. Tyler, Why People Obey the Law
(1990)..........................................................................  13

U.S.S.G. § 2D1.1................................................................. 4

U.S. Dep’t of Justice, Office of Justice Programs,
Bureau of Justice Statistics, Sentencing in the 
Federal Courts: Does Race Matter? (Nov.
1993)............................................................................... 6

U.S. Sentencing Commission, 2003 Sourcebook
o f Federal Sentencing Statistics (2003)....................... 5

U.S. Sentencing Commission, 2006 Annual 
Report (2006), available at http://www. 
ussc.gov/ANNRPT/2006/figi.pdf..... ........................... 5

U.S. Sentencing Commission, Special Report to 
the Congress: Cocaine and Federal
Sentencing Policy (1995).................................5, 6, 8, 9

U.S. Sentencing Commission, Special Report to 
the Congress: Cocaine and Federal
Sentencing Policy (1997)...............................................8

U.S. Sentencing Commission, Report to the 
Congress: Cocaine and Federal Sentencing 
Policy {2002)....................... .................... ............. 8, 13

U.S. Sentencing Commission, Report to the 
Congress: Cocaine and Federal Sentencing 
Policy (2007)..................................................... 8, 9, 11

Barry Zuckerman el al., Overview o f the Effects 
o f Abuse and Drugs on Pregnancy and 
Offspring, 149 Nat’l Inst, on Drug Abuse 
16(1995).............................................................

vii

9



INTEREST OF AMICUS CURIAE1
1

The NAACP Legal Defense and Educational Fund, 
Inc. (“LDF”) is a non-profit organization formed to assist 
African Americans in securing their rights through litigation 
and other forms of advocacy. Its mission is to transform the 
promise of equality into reality for African Americans and, 
ultimately, all individuals, in areas such as education, 
political participation, economic justice and criminal justice. 
For many years, its attorneys have represented parties and 
LDF has participated as amicus curiae in this Court, in the 
lower federal courts, and in state courts.

LDF has a long-standing concern with the influence 
of racial discrimination on the criminal justice system in 
general, and on the “War on Drugs” in particular. LDF has 
represented defendants in, inter alia: United States v. Smith, 
229 F.3d 1145 (4th Cir. 2000) (per curiam) (unpublished 
table decision); United States v. Smith, No. 2:93CR00162- 
001 (E.D. Va. June 14, 2005) (granting Motion for Early 
Termination of Supervised Release); People v. Worthy, Index 
No. 3550/97 (Sup. Ct. N.Y. County, Sept. 16, 2005); 
Williams v. State, No. B-3340-9907-CR (Dist. Ct. Swisher 
County, Tex. June 16, 2003) (granting bail and immediate 
release from incarceration in case involving the arrests of 35 
defendants in Tulia, Texas).2 LDF also appeared as amicus

1 Pursuant to S. Ct. R. 37.6, amicus here affirms that no counsel for either 
party authored any part of this brief, and that no person or entity other 
than LDF and its counsel provided financial support for preparation or 
submission of this brief. By letters filed with the Clerk of the Court, the 
parties have consented to the filing of this brief.
2 The defendants in Tulia, Texas were ultimately pardoned by Governor 
Rick Perry on August 22, 2003. See Release, Rick Perry, Office of the 
Governor, Governor Perry Grants Pardons to 35 Tulia Defendants (Aug. 
22, 2003), available at http://www.govemor.state.tx.us/divisions/press/ 
pressreleases/PressRelease.2003-08-22.0734/view.

http://www.govemor.state.tx.us/divisions/press/


curiae in Miller-El v. Dretke, 545 U.S. 231 (2005); Johnson 
v. California, 545 U.S. 162 (2005); Banks v. Dretke, 540 
U.S. 668 (2004); and Miller-El v. Cockrell, 537 U.S. 322 
(2003), among others. LDF has observed the unfortunate 
effects of America’s War on Drugs, including the mechanical 
application of the Federal Sentencing Guidelines, on African 
American communities, and believes its perspective would 
be helpful to the Court in resolving the issues presented in 
this case.

INTRODUCTION AND SUMMARY OF ARGUMENT
On four separate occasions, the United States 

Sentencing Commission (“Commission”) has determined that 
the Sentencing Guidelines (“Guidelines”) overstate the 
seriousness of crack cocaine offenses, fail to provide just 
punishment for such offenses, and, as a result, promote 
disrespect for the law. Specifically, the Commission found 
that the Guidelines’ differentiation between crack and 
powder cocaine offenses lacks penological justification 
because crack cocaine is not more harmful or addictive than 
powder cocaine, does not cause more violent behavior than 
powder cocaine, and is not more likely than powder cocaine 
to coincide with or increase the likelihood of other crimes. 
The Commission also concluded that the Guidelines’ 
crack/powder distinction has had a uniquely negative impact 
on the African American community. Specifically, the 
Commission found that African Americans are
disproportionately subjected to the higher Guidelines 
sentences for crack cocaine offenses and that the high 
incarceration rate contributes to the devastating poverty and 
disenfranchisement disproportionately suffered by African 
Americans.

These serious questions about the legitimacy of the 
Guidelines’ crack/powder sentencing disparity have
increasingly led the African American community, the legal

2



community, and the public at large to view the criminal 
justice system with skepticism, resentment, and disrespect. 
They have also led the Commission repeatedly to recommend 
lowering the Guidelines range for crack offenses because, 
with such an adjustment, the crack sentences would better 
comply with the statutory purposes of punishment embodied 
in 18 U.S.C. § 3553(a).

In light of the Sentencing Commission’s findings and 
recommendations, it is entirely reasonable for a sentencing 
judge to impose a below-Guidelines sentence for a crack 
offense if the sentencing judge determines that a Guidelines 
sentence fails to comport with the statutory purposes of the 
criminal law set forth in § 3553(a). The above described 
evidence of racial disparity and its concomitant harm is an 
appropriate consideration for that assessment because it is 
relevant to the district court’s determination of what sentence 
length is “sufficient, but not greater than necessary . . .  to 
reflect the seriousness of the offense, to promote respect for 
the law, and to provide just punishment for the offense,” 
§ 3553(a)(2)(A), “to afford adequate deterrence to criminal 
conduct,” § 3553(a)(2)(B), and “to protect the public from 
further crimes of the defendant,” § 3553(a)(2)(C). As this 
Court recently observed, “when [a] judge’s discretionary 
decision accords with the Commission’s view of the 
appropriate application of §3553(a) . . . , it is probable that 
the sentence is reasonable.” Rita v. United States, 127 S. Ct. 
2456, 2465 (2007).

Such a conclusion is also consistent with this Court’s 
holdings in United States v. Booker, 543 U.S. 220 (2005), 
and Rita, 127 S. Ct. 2456, that the Guidelines are advisory, 
not mandatory; that there is no “presumption of 
unreasonableness” when a district court reaches a below- 
Guidelines sentence after considering the § 3553(a) factors, 
id. at 2467; and that judges are permitted to sentence below

3



the Guidelines range when that range reflects “unsound 
judgment,” id. at 2468, fails to “generally treat certain 
defendant characteristics in the proper way,” id., or “fails 
properly to reflect § 3553(a) considerations,” id. at 2465. A 
contrary holding — that a district judge may not consider 
application of the crack Guidelines as excessive in individual 
sentencing decisions — would render the crack Guidelines 
mandatory, and contradict the mandates of Booker, Rita, and 
the plain language of 18 U.S.C. § 3553(a).

4

ARGUMENT
I. THE RACIAL DISPARITIES PRODUCED BY 

APPLICATION OF THE CRACK COCAINE 
SENTENCING GUIDELINES PROMOTE 
DISRESPECT FOR THE LAW

A. The Crack Cocaine Sentencing Guidelines 
Have Resulted in Vast Racial Disparities.

The Anti-Drug Abuse Act of 1986 established a 
100:1 ratio of powder cocaine to crack cocaine, 21 U.S.C. § 
841(b)(1)(B), treating one gram of crack cocaine as the 
equivalent of one hundred grams of powder cocaine. The 
Sentencing Commission used the same 100:1 ratio in setting 
then-mandatory drug penalties in the initial Sentencing 
Guidelines that became law in November 1987. See 
U.S.S.G. § 2D1.1. Since the implementation of the 
Guidelines, African Americans have consistently and 
disproportionately suffered a panoply of direct and indirect 
harms.

There is no doubt, for example, that African 
Americans are incarcerated for federal crack-related offenses 
in vastly higher numbers and proportions than whites. In 
1995, the Sentencing Commission reported to Congress that 
the federal government’s 1991 “National Household Survey



on Drug Abuse” found that even though 52% of reported 
crack users were white, whites represented only 10.3% of 
federal convictions for simple crack possession.3 U.S. 
Sentencing Commission, Special Report to the Congress: 
Cocaine and Federal Sentencing Policy, at 34, 152 (1995) 
(“1995 Report”). African Americans, on the other hand, 
represented 38% of crack users but 84.5% of federal 
convictions for simple crack possession. 1995 Report at 152. 
“[RJesearch on drug market patterns demonstrates that drug 
users generally purchase drugs from sellers of the same racial 
or ethnic background.” The Sentencing Project, Federal 
Crack Cocaine Sentencing 4 (2007) (citing Dorothy 
Lockwood, Anne E. Pottieger, & James A. Inciardi, Crack 
Use, Crime by Crack Users, and Ethnicity, in ETHNICITY, 
Race and Crime 21 (Darnell F. Hawkins ed., 1995)). The 
disparities are even more severe in the context of trafficking 
offenses, which form the bulk of the federal drug 
convictions.4 Among those sentenced in federal court for 
crack trafficking offenses, over 88% were African American, 
whereas only 4.1% were white. 1995 Report at 152. These 
racial disparities continue to plague the system. See, e.g., 
U.S. Sentencing Commission, 2003 Sourcebook o f Federal 
Sentencing Statistics, Table 34 (2003).

Moreover, the mechanical application of the 100:1 
ratio through the Guidelines has also contributed to racial 
disparities in sentence length. In 1986, prior to the institution 
of the 100:1 ratio and the Guidelines, the average federal 
drug sentence for African Americans was 11% higher than

5

Simple possession refers to cases where the defendant is accused of 
possessing less than 5 grams of crack cocaine, an amount associated with 
personal use. Possession of 5 grams or more is presumed to be associated 
with trafficking in drugs.
4

96% of federal drug cases involve trafficking charges. See U.S. 
Sentencing Commission, 2006 Annual Report, at Figure I (2006), 
available at http://www.ussc.gov/ANNRPT/2006/figi.pdf.

http://www.ussc.gov/ANNRPT/2006/figi.pdf


for whites. Four years later, and after the institution of the 
Guidelines, the average federal drug sentence for African 
Americans was 49% higher. See Barbara Stone Meierhoefer, 
Federal Judicial Center, The General Effect o f Mandatory 
Minimum Prison Terms: A Longitudinal Study o f Federal 
Sentence Imposed 20 (1992). Between 1994 and 2003, the 
average time served by an African American for a drug- 
related offense increased by 77%, whereas the average 
sentence of white offenders increased only by 28%. Bureau 
of Justice Statistics, Compendium o f Federal Justice 
Statistics, 1994 (1998).5 The Sentencing Commission, 
crediting a Bureau of Justice Statistics study covering the 
period from 1986 to 1990,6 concluded that “[t]he 100-to-l 
crack cocaine to powder cocaine quantity ratio is a primary 
cause of the growing disparity between sentences for Black 
and White federal defendants.” 1995 Report at 154.

The results of these disparities for African Americans 
have been devastating. For the individuals unfairly 
sentenced, of course, the lengthy confinement is itself 
unconscionable. But by requiring lengthy prison terms for 
crack offenses, the Guidelines also subject countless African 
Americans to a host of consequences which far exceed the 
initial sentence:

6

Notably, “African Americans now serve virtually as much time in 
prison for a drug offense (58.7 months) as whites do for a violent offense 
(61.7 months).” The Sentencing Project, Federal Crack Cocaine 
Sentencing, at 4 (2007), available at http://www.sentencingproject. 
org/Admin/Documents/publications/dp_cracksentencing.pdf (citing 
Bureau of Justice Statistics, Compendium o f Federal Justice Statistics, 
2003, at 112 & Table 7.16 (2004)).

U.S. Dep’t of Justice, Office of Justice Programs, Bureau of Justice 
Statistics, Sentencing in the Federal Courts: Does Race Matter? (Nov. 
1993), cited in the 1995 Report at 153.

http://www.sentencingproject


Dilution of Voting Rights. Forty-six states and the 
District of Columbia deny incarcerated prisoners the 
right to vote. See Human Rights Watch and The 
Sentencing Project, Losing the Vote: The Impact o f  
Felony Disenfranchisement Laws in the United States 
§ II (1998), available at http://www.hrw.org/reports98 
/vote/usvot98o.htm#FELONY. In thirty-two states, 
convicted offenders may not vote while they are on 
parole, and twenty-nine of these states disenfranchise 
offenders on probation. Id. Only fifteen of these 
states disenfranchise all ex-felons, id., thus sentence 
length is the critical factor that determines how long 
an individual remains disenfranchised. The 
Guidelines’ exponentially longer crack cocaine 
sentences therefore contribute to the diminution of 
African American voting power by exacerbating the 
problem of African American felon disfranchisement.

Impaired Capacity for Re-Entry. Longer sentences 
also undermine even first-time offenders’ capacity 
for successful community reintegration. Because, for 
example, prolonged incarceration frequently causes 
attenuated family and community relationships, the 
deterioration of a defendant’s strong support network 
makes reintegration and reentry upon release more 
difficult. See James P. Lynch & William J. Sabol, 
Prisoner Reentry in Perspective, 3 CRIME Pol’y Rep. 
1, 17-19 (2001), available at http://www.urban.org/ 
UploadedPDF/410213_reentry.PDF.

Other Harms to the Community. The lengthy 
prison terms associated with crack cocaine offenses 
also reach beyond individual families and contribute 
to the breakdown of community social structures like 
churches and schools that face a shortage of male

7

http://www.hrw.org/reports98
http://www.urban.org/


leaders. See Steven Rickman, The Impact o f  the 
Prison System on the African Community, 34 How. 
L.J. 524, 526 (1991); Gabriel J. Chin, Race, The War 
on Drugs, and the Collateral Consequences o f  
Criminal Conviction, 6 J. GENDER RACE & JUST. 253, 
259 (2002).

There is, in short, no doubt that the harms imposed on 
African Americans by the 100:1 ratio are disproportionate 
and severe.

8

B. The Racial Disparities Associated with the 
Crack Cocaine Sentencing Guidelines Have 
Caused Widespread Distrust of the Law.

The Guidelines’ 100:1 sentencing disparity has 
engendered near universal criticism, causing widespread 
disrespect for the law and undermining the goals of the 
Sentencing Reform Act.

First and foremost, the U.S. Sentencing Commission 
itself has expressly disavowed the 100:1 ratio. Indeed, on 
four separate occasions, including in a report issued this year, 
the Commission has articulated its “consistently held position 
that the 100-to-l drug quantity ratio significantly undermines 
the various congressional objectives set forth in the 
Sentencing Reform Act.” U.S. Sentencing Commission, 
Report to the Congress: Cocaine and Federal Sentencing 
Policy, at 7-8 (2007) (“2007 Report”); see also U.S. 
Sentencing Commission, Report to the Congress: Cocaine 
and Federal Sentencing Policy (2002) (“2002 Report”); U.S. 
Sentencing Commission, Special Report to the Congress: 
Cocaine and Federal Sentencing Policy, at 8 (1997) (“1997 
Report”); 1995 Report (issued after a review of cocaine 
penalties as directed by Pub. L. No. 103-322, § 280006) (all 
reports available at http://www.ussc.gov/ reports.htm).

http://www.ussc.gov/


In reaching that conclusion, the Commission relied on 
not only the vast racial disparities described above, but also 
the lack of any penological justification for the 100:1 ratio. 
When the Guidelines were created in 1986, it was widely 
assumed that crack and powder cocaine were significantly 
different drugs. The 100:1 ratio was therefore designed to 
address the increased risks of harm and violence purportedly 
presented by crack cocaine as compared to powder cocaine. 
As the Commission has recognized, however, in the years 
since the development of these crack/powder Guidelines, 
extensive research has demonstrated that the critical 
supposed distinctions between these two drugs are in fact 
non-existent. It is now generally accepted that: (1) crack 
cocaine is not more instantly addictive than powder cocaine, 
see 2007 Report at B-19, 67; (2) crack cocaine does not 
engender a greater propensity for more violent behavior than 
powder cocaine, see 1995 Report at 184-87; and (3) crack 
cocaine use by expectant mothers does not carry greater risk 
of birth defects than powder cocaine use, see 2007 Report at 
69; 1995 Report at 45; see also D.K. Hatsukami & M.W. 
Fischman, Crack Cocaine and Cocaine Hydrochloride. Are 
the Differences Myth or Reality?, 279 JAMA 1580 (1996) 
(finding that the psychological and psychoactive effects of 
cocaine are similar regardless of whether it is in the fonn of 
powder or crack); Barry Zuckerman et al., Overview o f the 
Effects o f  Abuse and Drugs on Pregnancy and Offspring, 149 
Nat’l Inst, on Drug Abuse 16, 19 (1995).

Because it is now clear that crack cocaine poses no 
greater threat of harm than powder cocaine, the Commission 
concluded that the fact that African Americans continue to be 
disproportionately subjected to these irrationally harsh 
sentences significantly contributes to the perception that the 
law is unfair and that the criminal justice system is biased, 
and thus requires a change in the 100:1 ratio.

9



Those same points have been echoed repeatedly by 
members of the federal judiciary, who witness first hand the 
unfairness that the Guidelines currently impose. Even in the 
years before Booker, the federal courts repeatedly concluded 
that the crack Guidelines are “greater than necessary” to 
accomplish the purposes of punishment. In 1997, for 
example, 27 federal judges, all of whom had previously 
served as U.S. Attorneys, sent a letter to the U.S. Senate and 
House Judiciary Committees stating that “[i]t is our strongly 
held view that the current disparity between powder cocaine 
and crack cocaine, in . . . the guidelines can not be justified 
and results in sentences that are unjust and do not serve 
society’s interest.” Letter from Judge John S. Martin, Jr. to 
Senator Orrin Hatch, Chairman of the Senate Judiciary 
Committee, and Congressman Henry Hyde, Chairman of the 
House Judiciary Committee (Sept. 16, 1997), reprinted in 10 
Fe d . Se n t ’G R e p . 195 (1998). More recently, U.S. Circuit 
Judge Michael McConnell of the Tenth Circuit has called the 
crack Guidelines “virtually indefensible,” United States v. 
Pruitt, 487 F.3d 1298, 1315 n.3 (10th Cir. 2007) (McConnell, 
J., concurring), and numerous other courts -  both district 
courts and the Courts of Appeals -  have likewise questioned 
the fairness of the Guidelines.7 Indeed, these views are

10

7 See also, e.g., United States v. Ricks, No. 05-4832, — F.3d —, 2007 WL 
2068098, at *7 (3d Cir. July 20, 2007) (100:1 ratio “leads to unjust 
sentences”); United States v. Moore, 54 F.3d 92, 102 (2d Cir. 1995) 
(concluding that crack disparity “raisefs] troublesome questions about the 
fairness of the crack cocaine sentencing policy”); United States v. 
Singleterry, 29 F.3d 733, 741 (1st Cir. 1994) (concluding that “[although 
Singleterry has not established a constitutional violation, he has raised 
important questions about the efficacy and fairness of our current 
sentencing policies for offenses involving cocaine substances”); United 
States v. Walls, 841 F. Supp. 24, 31 (D.D.C. 1994) (“[T]he disparity 
between the crack and powder penalties and the heavy impact of that 
disparity on black defendants is manifestly unfair.”), aff’d  in part, 70 
F.3d 1323 (D.C. Cir. 1995); United States v. Willis, 967 F.2d 1220, 1226



widely shared throughout the legal community: as the
Commission itself recognized, the crack Guidelines have 
been roundly condemned by “representatives of the 
Judiciary, criminal justice practitioners, academics, and 
community interest groups” alike. 2007 Report at 2.8

Just as telling, this same belief that the Guidelines are 
fundamentally unfair is shared by the public at large. As part 
of its mission to evaluate the Guidelines in terms of the 
§ 3553(a) factors, the Sentencing Commission contracted 
with two outside researchers, Dr. Peter H. Rossi of the 
University of Massachusetts, Amherst, and Dr. Richard A. 
Berk of the University of California at Los Angeles, to assess 
public opinion on federal sentences. Rossi and Berk found 
that the public is highly critical of the heavy Guidelines 
sentences for crack offenses and, instead, believes that 
cocaine and crack offenses deserve identical terms of 
imprisonment. See Peter H. Rossi & Richard A. Berk, U.S.

11

(8th Cir. 1992) (Heaney, J., concurring) (affirming 15-year crack 
sentence but suggesting that Congress had no “sound basis to make the 
harsh distinction between powder and crack cocaine,” and quoting with 
approval district judge’s description of the sentence as a “tragedy”); 
United States v. Clary, 846 F. Supp. 768, 792 (E.D. Mo. 1994), rev'd, 34 
F.3d 709 (8th Cir. 1994); United States v. Patillo, 817 F. Supp. 839, 843- 
44 & n.6 (C.D. Cal. 1993).

8 See, e.g., William J. Stuntz, Race, Class, and Drugs, 98 COLUM. L. 
Rev. 1795, 1835 (1998) (“If there is anything at all to the proposition that 
biased enforcement and punishment undermine the law’s normative 
force, this sentencing disparity ought to be abolished, or at least 
dramatically reduced.”); see also Alfred Blumstein, The Notorious 100:1 
Crack: Powder Disparity — The Data Tell Us that It Is Time to Restore 
the Balance, 16 Fed . Sent’g Rep. 87, 87 (2003); Michael Tonry, 
Rethinking Unthinkable Punishment Policies in America, 46 UCLA L. 
REV. 1751 (1999); William J. Spade, Jr., Beyond the 100:1 Ratio: 
Towards A Rational Cocaine Sentencing Policy, 38 Ariz. L. Rev . 1233, 
1255 (1996); David A. Sklansky, Cocaine, Race, and Equal Protection, 
47 Stan. L. Rev . 1283, 1288-99 (1995)



Sentencing Commission, A National Sample Survey: Public 
Opinion on Sentencing Federal Crimes ch. 4 at 66-67 & 
Table 4.7, & ch. 5 at 80 (1995), available at
http://www.ussc.gov/nss/jp_exsum.htm (noting that there is 
“little support in public opinion for especially severe 
sentences for drug trafficking and little support for singling 
out crack cocaine for special attention”). In general, “the 
public does not regard trafficking in [crack cocaine] as more 
serious than dealing in either powder cocaine or heroin . . . 
[and] trafficking in crack cocaine should not be singled out 
for especially severe punishments.” Id., ch. 4 at 78.

The result, as the Commission realized, is a 
perversion of the criminal justice system and the goals of the 
Sentencing Reform Act. The widespread perception of the 
crack Guidelines as unjust results in a disrespect for the law 
which may actually increase crime and make law 
enforcement more difficult. See, e.g., Donald Braman, 
Punishment and Accountability: Understanding and
Reforming Criminal Sanctions in America, 53 UCLAL. Rev. 
1143, 1165 (2006) (explaining that “prominent legal 
theorists” and “a broad array of recent empirical studies” 
support the notion that “[w]hen citizens perceive the state to 
be furthering injustice . . . they are less likely to obey the law, 
assist law enforcement, or enforce the law themselves”); R. 
Richard Banks, Beyond Profiling: Race, Policing, and the 
Drug War, 56 Stan. L. Rev. 571, 597-98 (2003); see also 
Janice Nadler, Flouting the Law, 83 Tex. L. Rev. 1399, 1399 
(2005) (reviewing the literature and reporting new 
experimental evidence that “the perceived legitimacy of one 
law or legal outcome can influence one’s willingness to 
comply with unrelated laws”); Tracey L. Meares et al., 
Updating the Study o f Punishment, 56 STAN. L. Rev. 1171, 
1185 (2004) (“As penalties increase, people may not be as 
willing to enforce them because of the disproportionate 
impact on those caught.”); Tom R. Tyler, Why People Obey

12

http://www.ussc.gov/nss/jp_exsum.htm


the Law 3-4 (1990) (explaining that cooperation with the 
law depends on the perception that the law is “just”).

Moreover, the “perceived improper unwarranted 
disparity based on race fosters disrespect for and lack of 
confidence in the criminal justice system among those very 
groups that Congress intended would benefit from the 
heightened penalties for crack cocaine.” 2002 Report at 103.

In short, the crack Guidelines represent a stain on the 
criminal justice system, disproportionately affecting African 
Americans without any legitimate penological justification 
and engendering a disrespect for the law that undermines the 
criminal justice system itself.

13

II. A DISTRICT COURT’S CONSIDERATION OF 
THE SEVERE RACIAL DISPARITIES 
RESULTING FROM APPLICATION OF THE 
FEDERAL SENTENCING GUIDELINES IS 
REASONABLE UNDER FEDERAL LAW.

A. Consideration of Racial Disparities in 
Cocaine Sentences is Consistent with 
Booker, Rita, and 18 U.S.C. § 3553(a).

In Booker, this Court held that mandatory application 
of the Guidelines violated the Sixth Amendment. 543 U.S. 
220. The Court therefore held that the Guidelines must be 
treated as advisory, and as only one of a number factors that 
a sentencing court must consider pursuant to 18 U.S.C. 
§ 3553(a). Judges are now required to determine the 
Guidelines sentence and “filter the Guidelines’ general 
advice through § 3553(a)’s list of factors.” Rita, 127 S. Ct. at 
2469. It is the sentencing judge’s obligation to “subject[] the 
defendant’s sentence to the thorough adversarial testing 
contemplated by federal sentencing procedure.” Id. at 2465.



As this Court acknowledged in Rita, a sentencing 
judge may entertain arguments that a sentence based solely 
on a Guidelines calculation reflects “unsound judgment,” id. 
at 2468, fails to “generally treat certain defendant 
characteristics in the proper way,” id., or “fail[s] properly to 
reflect § 3553(a) considerations,” id. at 2465, so long as the 
district court conducts an appropriately individualized 
analysis. According to § 3553(a), a district court must seek 
to ensure that the defendant’s sentence “reflect[s] the 
seriousness of the offense, ... promote[s] respect for the law, 
and ... provide[s] just punishment for the offense,” 
§ 3553(a)(2)(A). It must also seek “to afford adequate 
deterrence to criminal conduct,” § 3553(a)(2)(B), and 
“protect the public from further crimes of the defendant,” 
§ 3553(a)(2)(C). Under such circumstances, even if the 
sentence falls below the Guidelines, it may be upheld. Rita, 
127 S. Ct. at 2467 (no “presumption of unreasonableness” for 
below-Guidelines sentences).

In light of these decisions, it is entirely reasonable for 
district court judges to consider the empirical studies and 
recommendations of the Sentencing Commission, including 
its findings regarding vast racial disparities, in fashioning 
appropriately individualized sentences that comport with the 
mandates of § 3553(a). This is because the “sentencing 
statutes envision both the sentencing judge and the 
Commission as carrying out the same basic § 3553(a) 
objectives . . . .” Rita, 127 S. Ct. at 2463. And, in fact, the 
Sentencing Commission originally drafted the Guidelines, 
including for crack cocaine sentences, with the 
considerations of § 3553(a) in mind. See id. (citing 28 
U.S.C. § 994(f), 994(m)). Since 1995, however, the 
Commission has determined that the Guidelines as originally 
drafted do not carry out those purposes. See supra Section 
1(B) at 8-9.

14



Thus, when a district court sentences an individual 
crack cocaine offender to a below-Guidelines sentence based, 
in part, on consideration of the effects of the 100:1 ratio in 
the particular case, the court acts in concert with the opinions 
of the Sentencing Commission. This fact bolsters the likely 
reasonableness of the sentence. See Rita, 127 S. Ct. at 2465 
(“[W]hen the judge’s discretionary decision accords with the 
Commission’s view of the appropriate application of 
§ 3553(a) . . . , it is probable that the sentence is 
reasonable.”); see also id. at 2467 (“[Wjhere judge and 
Commission both determine that the Guidelines sentences is 
an appropriate sentence for the case at hand, that sentence 
likely reflects the § 3553(a) factors (including its ‘not greater 
than necessary’ requirement).”).

B. Courts Can Properly Consider the 
Disparities Caused by the Crack Cocaine 
Guidelines as Part of an Individualized 
Sentence Determination Without 
Categorically Rejecting the Ratio or the 
Guidelines.

A panel of the Third Circuit recently articulated a 
standard that is fully consistent with Booker, Rita, and 
§ 3553(a), in providing guidance to a district court on 
remand:

Although district courts may not categorically 
reject the 100-to-l ratio, they may . . . “consider the 
crack/powder cocaine differential in the Guidelines as 
a factor” when sentencing defendants. . . . They 
should first calculate the correct Guidelines range and 
rule on any departure motions . . . .[then,] considering 
the individual circumstances of a defendant and the 
specific crime, district courts should consider the 
relevant § 3553(a) factors. It is at this stage (step 3)

15



that courts may consider the crack/cocaine differential 
as it applies to the particular case before them........

While the views of the Sentencing 
Commission may not be used to justify a new ratio 
altogether, district courts may consider the analysis in 
the Commission’s reports when applying the 
§ 3553(a) factors to a specific case and defendant. For 
example, the Commission’s reports, as well as other 
sources, can inform the § 3553(a) analysis of “the 
nature and circumstances of the offense” or “the need 
for the sentence imposed . . .  to reflect the seriousness 
of the offense, to promote respect for the law, . . .  to 
provide just punishment for the offense . . . [and] to 
afford adequate deterrence to criminal conduct.”

Ricks, 2007 WL 2068098, at *6 (citations omitted). We urge 
the Court to adopt and apply this standard.

C. The District Court, in Sentencing Mr. 
Kimbrough, Engaged in an Individualized 
Evaluation of the Statutory Factors 
Consistent with Federal Law.

Under the standard articulated in Ricks, the 
sentencing decision of Judge Jackson below was reasonable. 
After calculating the sentence according to the advisory 
Guidelines, the court explicitly stated that it was evaluating 
the individual facts and record in terms of the § 3553(a) 
factors. After a review of the factors, Judge Jackson detailed 
how those case-specific factors, taken together, warranted a 
below-Guidelines sentence. See Pet. App. 24a-25a, C.A.J.A. 
48-49 (explaining that “given the record here,” a sentence 
calculated using only the Guidelines was excessive).9 The

16

9
The district court sentencing Mr. Kimbrough explained:

The Court is required to impose a sentence in this case to do 
several things: To reflect the seriousness of the offense, to



court considered factors such as the nature and circumstances 
of the offense, the defendant’s family ties, and the 
defendant’s military contributions. Id. The court also 
considered the Commission’s recommendations and the 
effect of the 100:1 ratio on Mr. Kimbrough’s sentence. Id. 
After considering a variety of contributing factors, the court 
explained that if it were to “follow the advisory guidelines, 
the penalty imposed would be clearly inappropriate and 
greater than necessary to accomplish what the statute says 
you should in fact accomplish in this case.” Pet. App. 27(a),
C.A.J.A. 51. The district court considered the need for the 
sentence to reflect the basic aims of sentencing and 
concluded that 180 months — the mandatory minimum 
permitted by Congress — was “clearly long enough under the 
circumstances.” Pet. App. 28a, C.A.J.A. 52. In this particular 
case, a rote application of the Sentencing Guidelines did not 
comport with the mandate of § 3553(a). This was precisely 
the analysis the statute directs sentencing courts to perform 
when sentencing a defendant and that this Court described in 
Rita. It is also consistent with the standard outlined in Ricks.

Nevertheless, the Court of Appeals vacated the 
District Court’s sentence because it was “based, in part, on 
the district court’s disagreement with the disparity between 
sentences for crack and powder cocaine violations,” Pet.

17

afford adequate deterrence to Mr. Kimbrough’s criminal 
conduct, to protect the public from further crimes committed by 
the defendant, to provide the defendant with needed education or 
vocational training, medical care or other correctional treatment 
in the most effective way. . . . One thing the statute tells the 
Court to do [is that] in fashioning a sentence, the Court is not to 
impose a sentence that is greater than necessary to accomplish 
the factors I have just outlined.. . .  [T]o impose a sentence of 19 
to 22 years in this case is ridiculous . . . [because] [i]t imposes 
more punishment, given the record here, than is necessary to 
accomplish what needs to be done.

Pet. App. 24a-25a, C.A.J.A. 48-49.



App. 2a, applying its ruling in United States v. Eura, 440 
F.3d 625 (4th Cir. 2006), that “a sentence that is outside the 
guidelines range is per se unreasonable when it is based 
[even in part] on a disagreement with the sentencing disparity 
for crack and powder cocaine offenses,” Pet. App. 2a. The 
Fourth Circuit erred in so holding because it mischaracterized 
the district court’s § 3553(a) determination as a 
“disagreement” with the Guidelines. To hold that a 
sentencing judge can never “disagree” with a sentence 
calculated using the 100:1 ratio makes the Guidelines 
mandatory. Such a holding is contrary to Booker, and also 
fails to give effect to Congress’s intention that sentences 
reflect judges’ evaluation of a series of additional factors set 
forth in 18 U.S.C. § 3553(a). Where, as here, a court 
considers, as one factor among others, the impact in an 
individual case of severe racial disparities resulting from a 
mechanical calculation of the Guidelines, the decision to 
deviate from those Guidelines is reasonable and consistent 
with federal law.

The court in this case evaluated the facts surrounding 
Mr. Kimbrough’s individual case, determined that the 
Guidelines range failed to reflect the § 3553(a) factors, and 
imposed a sentence below the Guidelines range in order to 
better comport with the purposes of sentencing set forth in 
§ 3553(a). The decision to do so was reasonable and should 
be affirmed.

CONCLUSION
For these reasons, amicus urges the Court to reverse the 

decision below.

18



19

Respectfully submitted,

Theodore M. Shaw 
Director-Counsel

Ian Heath Gershengorn
Lindsay C. Harrison 
Jenner & Block LLP 
601 13 th Street N.W. 
Washington, DC 20005

Jacqueline A. Berrien
Christina Swarns 
Johanna Steinberg
NAACP Legal Defense & (202) 639-6000

Educational Fund, Inc.
99 Hudson Street, 16th Floor 
New York, NY 10012 
(212)965-2200

Counsel o f Record