A SLOW MOTION LYNCHING? THE WAR ON DRUGS, MASS
INCARCERATION, DOING KIMBROUGH JUSTICE, AND A
RESPONSE TO TWO THIRD CIRCUIT JUDGES
Mark W. Bennett*
Abstract
A federal district court judge who has sentenced more than 4000
defendants reflects on federal sentencing and its role in mass
incarceration. The focus of the article is on federal sentencing in
crack cocaine cases and policy disagreements with the United States
Sentencing Guidelines (Guidelines) in drug trafficking cases. The
article explores the U.S. Supreme Court cases in Kimbrough v.
United States, United States v. Spears, and Pepper v. United States,
the only U.S. Supreme Court cases that address sentencing judges’
policy disagreements with the guidelines. Ironically, or perhaps
serendipitously, the author was the sentencing judge in both Spears
and Pepper, where he was reversed a whopping 5 times by the U.S.
Court of Appeals for the Eighth Circuit (twice by an en banc court)
before both defendants’ sentencing positions were vindicated by the
U.S. Supreme Court. The article takes exception to two Third
Circuit judges who have argued in law review articles that federal
sentencing judges should be concerned about “legislative backlash”
if they sentence outside the now advisory guidelines. In the arc of the
history of federal sentencing and its impact on mass incarceration,
we are perched at a cresting point where the gravity of reason and
our Nation’s experience with mass incarceration hopefully will pull
towards greater justice in sentencing.

TABLE OF CONTENTS
I. INTRODUCTION ...............................................................................874
II. MASS INCARCERATION, DRUG SENTENCING, MANDATORY
MINIMUMS, AND THE DRUG GUIDELINES ..................................880
A. Mass Incarceration ...........................................................880
B. Drug Sentencing in Federal Court....................................883
1. The Statutory Scheme and Mandatory Minimums ....883
2. The Advisory Sentencing Guidelines...........................886
III. POLICY DISAGREEMENTS WITH THE GUIDELINES: KIMBROUGH,

* Mark W. Bennett is in his 21st year as a U.S. district judge for the Northern
District of Iowa. He has sentenced over 4,000 defendants in four district courts, the
Northern and Southern Districts of Iowa, the District of the Northern Mariana
Islands, and the District of Arizona, most on drug trafficking offenses.

873

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SPEARS, PEPPER, AND BEYOND ................................................892
IV. DOING KIMBROUGH JUSTICE POST SPEARS AND PEPPER ..............898
A. United States v. Gully ........................................................898
B. The Fair Sentencing Act of 2010 and United States v.
Williams ..........................................................................900
C. United States v. Hayes .......................................................902
D. United States v. Young ......................................................903
E. The Surprising Lack of Judges Doing “Kimbrough
Justice” ............................................................................904
V. A RESPONSE TO TWO THIRD CIRCUIT JUDGES’ LAW REVIEW
ARTICLES .................................................................................908
VI. THE CRESTING POINT ...................................................................913
VII. CONCLUSION ..............................................................................919
I. INTRODUCTION
The 2014 Best Picture Oscar winner, 12 Years a Slave, is based
on the 1853 autobiography by Solomon Northup.1 Northrup, a black
freeman in New York, was kidnapped and sold into Southern
slavery.2 There is an eternally haunting, prolonged, and grueling
scene in the movie where Northup has a noose around his neck and
strains for breath by tiptoeing on the ground to keep from being
lynched.3 Other slaves on the planation are paralyzed by fear and
ignore him. Like a ballerina en pointe, Northup spends long hours in
this slow motion lynching dance until he is rescued by his owner.
Unable to suppress this image and, indeed, repulsed, but
compelled by it, I wrote this sequel to an earlier article, “A Holocaust
in Slow Motion?” Mass Incarceration in America and the Role of
Discretion.4 In A Holocaust in Slow Motion, my co-author and I

1. The film is based on Solomon Northrup’s autobiography. SOLOMON NORTHUP,
TWELVE YEARS A SLAVE: NARRATIVE OF SOLOMON NORTHUP, CITIZEN OF NEW YORK,
KIDNAPPED IN WASHINGTON CITY IN 1841, AND RESCUED IN 1853, FROM A COTTON
PLANTATION NEAR THE RED RIVER IN LOUISIANA (Dover Publ’n 1970) (1853). Northrup
describes his life as follows:
Having been born a freeman, and for more than thirty years enjoyed the
blessings of liberty in a free State—and having at the end of that time been
kidnapped and sold into Slavery, where I remained, until happily rescued in
the month of January, 1853, after a bondage of twelve years—it has been
suggested that an account of my life and fortunes would not be uninteresting
to the public.
Id. at 17. So starts the book.
2. Id.
3. 12 YEARS A SLAVE (River Road Entertainment, Regency Enterprises, Plan B
Entertainment, New Regency Pictures, Film4 2013).
4. Mark Osler & Mark W. Bennett, “A Holocaust in Slow Motion?” Mass
Incarceration in America and the Role of Discretion, 7 DEPAUL J. SOC. JUST. 117
(2014).

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highlighted the myth in drug sentencing of an independent U.S.
Sentencing Commission (Commission) dedicated to fair and just
sentencing through empirical research, specialized expertise, and
independent judgment.5 We catalogued Congress’s pandering 1980’s
“[t]ough on crime” politics and their passing of the Anti-Drug Abuse
Act of 1986 (ADAA)6 with lightning speed, dispensing with hearings,
fact finding, and exploiting Len Bias’s death by a cocaine overdose
(not crack as originally reported)—the number two player in the
nation selected in the June 1986 NBA Draft by the Boston Celtics,
who died two days after being drafted.7 The ADAA promulgated the
most far reaching and harsh mandatory minimum federal sentencing
scheme in U.S. history, propelling America into the world leadership
of mass incarceration.8 Our article looked at Congress, the
Commission, the Department of Justice, and federal judges to
articulate how the exercise of their discretion fueled the mass
incarceration movement in America.9 Finally, we ended on a hopeful
and optimistic note:
If there is an arc to history, we are perched upon it at a cresting
point as the gravity of reason pulls us toward justice. It has been a
long and painful trip for our nation, with prisons filled, families
divided and destroyed, urban communities devastated, narcotics
proliferated and all of these tragedies abetted by the inaction of
those with the power to change things—Congress, the DOJ, the
Sentencing Commission, and federal judges.
That inaction, however, seems to have ended. This last year has
seen conscience move judges to reject harsh sentences and speak
more publicly about what they see, the Sentencing Commission
consider backing down from the too-strict measures of the narcotics
guidelines, Congress ponder major and retroactive changes and
even the DOJ, the most intractable of all, become a powerful force
for change.10

Turning from optimistic to a dark and brutal period in our
nation’s history for black Americans—3,446 blacks were lynched in
the United States from 1882 to 1968.11 “Lynching has been called

5. Id.
6. Id. at 129-137, 163.
7. Id. at 132-33.
8. Id. at 130-31, 142-54.
9. Id. at 129-56.
10. Id. at 175.
11. Univ. of Mo.-Kan. City Sch. of Law, Lynchings: By State and Race, 1882-1968,
LAW2.UMKC.EDU,
http://law2.umkc.edu/faculty/projects/ftrials/shipp/lynchingsstate.html (last visited
Oct. 10, 2014); see also Lynching, Whites & Negroes, 1882-1968, TUSKEGEE UNIV.
ARCHIVES ONLINE REPOSITORY, http://192.203.127.197/archive/handle/123456789/511,
(follow “Lynching 1882 1968.pdf” hyperlink located under “Files in this item”).

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‘America’s national crime.’”12 “[S]tate actors play[] a unique and key
role in” holocausts and lynchings.13 Both also require the “tacit
approval or passive acceptance . . . by police officers, prosecutors,
judges, and elected officials . . . to flourish . . . .”14 Lynching had
become so established in our Nation that, in 1934, the Texas Law
Review published a book review on a book proposing model antilynching legislation noting: “While it is doubtful if any legislation can
be an effective panacea under present sociological conditions . . . any
legislation however wisely conceived is doomed to failure in those
jurisdictions where the lynching spirit is strong . . . .”15 Acclaimed
civil rights historian, Phillip Dray, in describing the anonymous way
in which lynchings were carried out notes: “The coroner’s inevitable
verdict, ‘Death at the hands of person unknown,’ affirmed the
public’s tacit complicity: no persons had committed a crime, because
the lynching had been an expression of the community’s will . . . .
[E]yewitnesses, even law officers, invariably swore they hadn’t
recognized any of the mob’s individual members.”16 Like the
anonymous lynchers described by Dray, we do not see many taking
responsibility for today’s mass incarceration epidemic. To put the
figures in perspective, the average number of blacks incarcerated by
federal judges for crack cocaine offenses in each of the past five years,
singularly, approximates the total number of blacks lynched in the
United States from 1895 to 1968.17
This Article does not suggest that incarcerating almost
exclusively black men for unprecedented lengthy terms of
incarceration, for crack cocaine offenses they illegally committed, is
the equivalent of lynching innocent blacks. It does, however, suggest
both actions have strong racial overtones; both share a lack of public
outcry; both share tacit public complicity; both share governmental
complicity; both share devastating effects on families, children, and
neighborhoods; and both have been accomplished largely at the
hands of those unknown—at least to the general public.
This Article explores the rise of mass incarceration and federal

12. Sherrilyn A. Ifill, Creating a Truth and Reconciliation Commission for
Lynching, 21 LAW & INEQ. 263, 263 (2003).
13. Id. at 268.
14. Id.
15. Jesse Andrews Raymond, Book Review, 12 TEX. L. REV. 378, 380 (1934)
(reviewing J.H. C HADBOURN, LYNCHING AND THE LAW (1933)).
16. PHILLIP DRAY, AT THE HANDS OF PERSON UNKNOWN: THE LYNCHING OF BLACK
AMERICA, at ix (2003).
17. See U.S. SENTENCING COMM’N,
Quick Facts on Crack Cocaine Trafficking Offenses, USSC.GOV,
http://www.ussc.gov/sites/default/files/pdf/research-and-publications/quick-facts/
Quick_Facts_Crack_Cocaine.pdf (last visited Sept. 6, 2014); Lynchings: By State and
Race, 1882-1968, supra note 11.

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judges’ role in it, including my own. It focuses on so-called “policy
disagreements” with the now advisory guidelines, especially in drug
trafficking cases in general and crack cocaine cases in particular. By
“Kimbrough justice,” I mean judges using the analysis in the 2007
U.S. Supreme Court decision in Kimbrough v. United States to vary
from the guidelines based on policy disagreements with them.18 Like
Solomon Northup, I chronicle these events in the hope that it “would
not be uninteresting to the public” and the legal profession.19
This Article has a secondary, but important purpose. It responds
to law review articles by two Third Circuit judges that suggest that
federal sentencing judges should be concerned about Congress’s next
move as we sentence defendants.20 Judge Fisher refers to this as a
“legislative backlash.”21 Judge Hardiman warns that “Congress
might impose new, detailed statutory penalties that will leave
district [court] judges with even less discretion than they possessed
in the mandatory Guidelines era.”22 While I have heard these
refrains before, I find them both odd and at odds with fundamental
notions of separation of powers and federal sentencing judges’
overarching command to impose a sentence that is “sufficient, but
not greater than necessary, to comply with the purposes” of federal
sentencing.23
Before going further, a mini-recap of the upheaval in federal
sentencing is essential. From the effective dates of the ADAA of 1986
and the Sentencing Reform Act of 1984 (SRA) on November 1,
198724—which created the Commission—the federal sentencing

18. Kimbrough v. United States, 552 U.S. 85, 101 (2007) (permitting judges to vary
from sentencing guidelines based on policy disagreements); see, e.g., United States v.
Lychock, 578 F.3d 214, 217-21 (3d Cir. 2009), and United States v. Rodriguez, 527
F.3d 221, 224-31 (1st Cir. 2008) (judges straying from the sentencing guidelines
because of policy disagreements). See also Scott Michelman & Jay Rorty, Doing
Kimbrough Justice: Implementing Policy Disagreements with the Federal Sentencing
Guidelines, 45 SUFFOLK U. L. REV. 1083 (2012), for the most far reaching and
comprehensive analysis of policy disagreements with the guidelines.
19. NORTHUP, supra note 1, at 17.
20. D. Michael Fisher, Striking a Balance: The Need to Temper Judicial Discretion
Against a Background of Legislative Interest in Federal Sentencing, 46 DUQ. L. REV. 65
(2007); Thomas M. Hardiman & Richard L. Heppner Jr., Policy Disagreements with the
United States Sentencing Guidelines: A Welcome Expansion of Judicial Discretion or
the Beginning of the End of the Sentencing Guidelines?, 50 DUQ. L. REV. 5 (2012).
21. Fisher, supra note 20, at 87, 98.
22. Hardiman & Heppner, supra note 20, at 34.
23. 18 U.S.C. § 3553(a) (2012); see also United States v. Booker, 543 U.S. 220, 249
(2005).
24. Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 1837 (current
version at 18 U.S.C. § 3551 (2012)); Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570,
100 Stat. 3207 (current version at 21 U.S.C. § 841 (2012)). The SRA created the
Commission and authorized it to create federal sentencing guidelines which went into
effect on November 1, 1987. Id. § 3552(b).

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scheme went from a lengthy period of total, unlimited, and
unreviewable judicial sentencing discretion to inflexible and
mandatory guidelines, which severely truncated judicial discretion.
In the 2005 landmark decision in United States v. Booker, the U.S.
Supreme Court held that the mandatory guidelines, by imposing on
judges, rather than juries, fact finding in sentencing that often
increases an offender’s sentence, violated the Sixth Amendment to
the U.S. Constitution.25 “The Booker remedial opinion determined
that the appropriate cure was to sever and excise the provision of the
statute that rendered the Guidelines mandatory. This modification of
the federal sentencing statute, we explained, ‘makes the Guidelines
effectively advisory.’”26 The guidelines, now advisory, “are finally just
guidelines.”27 So, in the arc of just twenty years, federal sentencing
has gone from virtually unlimited sentencing discretion, to virtually
no sentencing discretion, back to sentencing discretion that
emphasizes the “reasonableness” of the sentence imposed. 28 The
overarching principle of federal sentencing is now to achieve an
individualized sentence that is “sufficient, but not greater than
necessary, to comply with the purposes” of sentencing contained in 18
U.S.C. § 3553(a).29 District court judges “must make an
25. 543 U.S. at 226-227.
26. Kimbrough v. United States, 552 U.S. 85, 100-01 (2007) (footnote and citations
omitted).
27. John Gleeson, The Sentencing Commission and Prosecutorial Discretion: The
Role of the Courts in Policing Sentence Bargains, 36 HOFSTRA L. REV. 639, 660 (2008).
28. See Kimbrough, 552 U.S. at 111 (“The ultimate question in Kimbrough’s case is
‘whether the sentence was reasonable—i.e., whether the District Judge abused his
discretion in determining that the § 3553(a) factors supported a sentence of [15 years]
and justified a substantial deviation from the Guidelines range.’”).
29. 18 U.S.C. § 3553(a) states:
(a) FACTORS TO BE CONSIDERED IN IMPOSING A SENTENCE.—The court shall
impose a sentence sufficient, but not greater than necessary, to comply with
the purposes set forth in paragraph (2) of this subsection. The court, in
determining the particular sentence to be imposed, shall consider—
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote respect for the law,
and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training,
medical care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for—
(A) the applicable category of offense committed by the applicable category of
defendant as set forth in the guidelines—
(i) issued by the Sentencing Commission pursuant to section 994(a)(1) of title
28, United States Code, subject to any amendments made to such guidelines
by act of Congress (regardless of whether such amendments have yet to be

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individualized assessment based on the facts presented.”30 The Court
in Gall v. United States cited with approval the following passage
from the Brief for Federal Public and Community Defenders et al. as
Amici Curiae: “The sentencing judge is in a superior position to find
facts and judge their import under § 3553(a) in the individual case.
The judge sees and hears the evidence, makes credibility
determinations, has full knowledge of the facts and gains insights not
conveyed by the record.”31 Indeed, the U.S. Supreme Court has long
recognized that “[i]t has been uniform and constant in the federal
judicial tradition for the sentencing judge to consider every convicted
person as an individual and every case as a unique study in the
human failings that sometimes mitigate, sometimes magnify, the
crime and the punishment to ensue.”32
Part II of this Article fuses mass incarceration with a tutorial on
federal mandatory minimum sentencing and the interplay with the
now advisory guidelines. It concludes with a flow chart that
graphically demonstrates the many steps of a federal sentencing,
using as an example a typical, but hypothetical, crack cocaine case.
Part III explores the new “policy disagreement” approach to the
advisory guidelines including two U.S. Supreme Court cases where I
was the sentencing judge. Part IV examines my sentencing journey
in attempting to do “Kimbrough justice” through a series of
sentencing opinions articulating “policy disagreements” with the
drug trafficking guidelines. Part V disagrees with two Third Circuit
incorporated by the Sentencing Commission into amendments issued under
section 994(p) of title 28); and
(ii) that, except as provided in section 3742(g), are in effect on the date the
defendant is sentenced; or
(B) in the case of a violation of probation or supervised release, the
applicable guidelines or policy statements issued by the Sentencing
Commission pursuant to section 994(a)(3) of title 28, United States Code,
taking into account any amendments made to such guidelines or policy
statements by act of Congress (regardless of whether such amendments have
yet to be incorporated by the Sentencing Commission into amendments
issued under section 994(p) of title 28);
(5) any pertinent policy statement—
(A) issued by the Sentencing Commission pursuant to section 994(a)(2) of
title 28, United States Code, subject to any amendments made to such policy
statement by act of Congress (regardless of whether such amendments have
yet to be incorporated by the Sentencing Commission into amendments
issued under section 994(p) of title 28); and
(B) that, except as provided in section 3742(g), is in effect on the date the
defendant is sentenced.
(6) the need to avoid unwarranted sentence disparities among defendants
with similar records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.
30. Gall v. United States, 552 U.S. 38, 50 (2007).
31. Id. at 51 (internal quotation marks omitted).
32. Koon v. United States, 518 U.S. 81, 113 (1996).

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judges who advocate that district court judges should curb discretion
in exercising “Kimbrough justice” because of concerns about what
Congress will do. Finally, Part VI, the final portion of this Article,
suggests we are at a cresting or tipping point in our recent history of
mass incarceration and discusses some of the recent develops that
could dramatically reduce mass incarceration.
II. MASS INCARCERATION, DRUG SENTENCING, MANDATORY MINIMUMS,
AND THE DRUG GUIDELINES
A. Mass Incarceration
As we noted in “A Holocaust in Slow Motion?”: “Largely due to
the war on drugs, the United States, with less than 5% of the world’s
population, has nearly 25% of the world’s incarcerated population.”33
As Professor Dorothy E. Roberts has written, “The War on Drugs
became
its
own
prisoner-generating
machine,
producing
incarceration rates that ‘defy gravity and continue to grow even as
crime rates are dropping.’”34 The United States leads the world in
mass incarceration because we incarcerate a greater percentage of
our population than any country on Earth.35 More than Russia,
China, Syria, Saudi Arabia, and North Korea, to name a few likely
surprises.36 Additionally, there are more individuals in our state and
federal prisons serving time for drug offenses than any other crime.37
In 2012, over 72%, or 18,239 of the 25,298 defendants in federal court
sentenced for drug trafficking offenses were black or Hispanic.38 One
author recently observed that mass incarceration today is “the
fundamental fact” of our nation “as slavery was the fundamental fact
of 1850.”39 There are now “more black men in the grip of the
33. Osler & Bennett, supra note 4, at 124.
34. Dorothy E. Roberts, The Social and Moral Costs of Mass Incarceration in
African American Communities, 56 STAN. L. REV. 1271, 1275 (2004) (quoting Franklin
E. Zimring, Imprisonment Rates and the New Politics of Criminal Punishment, in
MASS IMPRISONMENT: SOCIAL CAUSES AND CONSEQUENCES 145, 146 (David Garland
ed., 2001)).
35. See Anne R. Traum, Mass Incarceration at Sentencing, 64 HASTINGS L.J. 423,
428 (2013). The incarceration rate of the United States is “roughly seven times the
rate in Western Europe.” Id.
36. See id.
37. See Deborah Peterson Small, Eliminating Racial Disparities in the Criminal
Justice System, 37 C HAMPION 55, 55-56 (2013).
38. U.S. SENTENCING COMM’N, 2012 SOURCEBOOK OF FEDERAL SENTENCING
STATISTICS
tbl.34
(2012),
available
at
http://www.ussc.gov/research-andpublications/annual-reports-sourcebooks/2012/sourcebook-2012
[hereinafter
2012
SOURCEBOOK].
39. Adam Gopnik, The Caging of America, T HE NEW YORKER, Jan. 30, 2012, at 2,
available
at
http://www.newyorker.com/arts/critics/atlarge/2012/01/30/120130crat_atlarge_gopnik?
currentPage=all.

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criminal-justice system—in prison, on probation, or on parole—than
were in slavery then. Over all, there are now more people under
‘correctional supervision’ in America—more than six million—than
were in the Gulag Archipelago under Stalin at its height.”40
Michelle Alexander has written that white youths engage in
drug crimes more than people of color.41 Yet “[i]n some states, black
men have been admitted to prison on drug charges at rates twenty to
fifty times greater than those of white men.”42 Alexander ends her
book with an indictment of mass incarceration, including a seething
refrain from James Baldwin’s 1962 classic, The Fire Next Time:
[W]hen a young man who was born in the ghetto and who knows
little of life beyond the walls of his prison cell and the invisible cage
that has become his life, turns to us in bewilderment and rage, we
should do nothing more than look him in the eye and tell him the
truth. We should tell him the same truth the great African
American writer James Baldwin told his nephew in a letter
published in 1962, in one of the most extraordinary books ever
written, The Fire Next Time. With great passion and searing
conviction, Baldwin had this to say to his young nephew:
This is the crime of which I accuse my country and my
countrymen, and for which neither I nor time nor history will
ever forgive them, that they have destroyed and are destroying
hundreds of thousands of lives and do not know it and do not
want to know it . . . . It is their innocence which constitutes the
crime . . . . This innocent country set you down in a ghetto in
which, in fact, it intended that you should perish. The limits of
your ambition were, thus, expected to be set forever. You were
born into a society which spelled out with brutal clarity, and in
as many ways as possible, that you were a worthless human
being.43

It is a sad commentary that Baldwin’s indictment is probably
truer today than it was over fifty years ago in 1962. One need look no
further than today’s federal crack cocaine guideline to understand
this.
Because the crack cocaine guideline is a core example of an
unduly harsh federal sentencing practice44 that contributes to mass
40. Id.
41. MICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN THE AGE
OF COLORBLINDNESS 7 (2010).
42. Id.
43. Id. at 247-48.
44. Judge John Gleeson, a highly respected judge of the U.S. District Court for the
Eastern District of New York (Brooklyn), and a former federal prosecutor of great
renown for prosecuting organized crime defendants, including John Gotti, has written:
“Guideline sentences have always been too severe, especially for the non-violent drug
trafficking offenders that account for a large segment of the federal criminal docket.”
Gleeson, supra note 27, at 640, 658.

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incarceration, the demographics of crack cocaine defendants in
federal court are telling and worth analyzing. Nearly 83% of the more
than 3500 crack defendants sentenced in 2012 were black, almost
10% were Hispanic, while less than 7% were white.45 Nearly 92% of
the crack defendants were male, higher than for any other drug
type.46 Nearly 98% of the crack defendants were U.S. citizens, higher
than any other drug type and almost double the rate of marijuana
defendants.47 The number of non-U.S. citizens for crack defendants,
78, was nearly 1/25th the number of non-U.S. citizens for powder
cocaine defendants, 1,925, and nearly 1/44th the number of non-U.S.
citizen marijuana defendants.48 Crack defendants receive a role
adjustment (aggravating or mitigating) in their sentencing less often
than for any other drug type.49 They receive an aggravating role
adjustment in just 6% of cases compared to 8.2% in powder cocaine
cases and a mitigating role in just 5% of the cases compared to 18%
for powder cocaine cases.50 When crack defendants are eligible for a
mandatory minimum sentence, they are less likely to receive the
benefit of the safety valve than any other drug type.51 Indeed, powder
cocaine defendants eligible for a mandatory minimum sentence and
the safety valve receive the safety valve four times more often than
crack defendants.52 Finally, the length of the average crack sentence
is substantially longer than for any other drug type including heroin
traffickers.53
Almost a decade after the ADAA was passed, the L.A. Times, in
1995, reported that not a single “Caucasian defendant had been
charged with crack cocaine offenses in federal courts in Los Angeles,
Boston, Denver, Chicago, Miami, Dallas, or in seventeen state
courts.”54 Indeed, in my over twenty years of sentencing defendants
in four different federal courts, spanning the two districts in Iowa,

45. 2012 SOURCEBOOK, supra note 38, at tbl.34.
46. Id. at tbl.35.
47. Id. at tbl.36.
48. Id.
49. Id. at tbl.40.
50. Id.
51. Id. at tbl.44.
52. Id.
53. Id. at fig.J. The average crack sentence in 2012 was 97 months; powder
cocaine—83 months; heroin—73 months; marijuana—36 months; methamphetamine—
92 months; and “other”—59 months. Id. Of course, this is after the Fair Sentencing Act
of 2010 reduced the crack/powder disparity to 18:1. United States v. Williams, 788 F.
Supp. 2d 847, 853 (N.D. Iowa 2011). Prior to the passage of the FSA, the length of
crack sentences was substantially higher. Id.
54. Alyssa L. Beaver, Note, Getting a Fix on Cocaine Sentencing Policy: Reforming
the Sentencing Scheme of the Anti-Drug Abuse Act of 1986, 78 FORDHAM L. REV. 2531,
2549 (2010) (citing Dan Weikel, War on Crack Targets Minorities over Whites, L.A.
TIMES, May 21, 1995, at A1, A26).

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the district of Arizona, and the Northern Mariana Islands, I do not
recall sentencing a single white defendant on a crack cocaine case.
Thus, in a very real sense the phrase “mass incarceration” is a
misnomer. It “wrongly implies a problem affecting the masses, that
is, that it affects large swaths of citizenry, across social and physical
space, in broad and indiscriminate ways.”55 Mass incarceration
clearly does not indiscriminately affect the entire cross section of
America. “[I]ncarceration growth rates have ‘been finely targeted,’ by
class, race, and geography.”56 Indeed, whatever we label this
problem, it likely would have come to a screeching halt if white
youths using crack cocaine in the suburbs would have been
prosecuted at anywhere near the same rate as blacks in the inner
city—the low hanging fruit of the War on Drugs. I now turn to an
overview of the federal sentencing process and the interplay between
the guidelines and mandatory minimums.
B. Drug Sentencing in Federal Court
1. The Statutory Scheme and Mandatory Minimums
The most commonly used federal drug statutes in pursuing the
War on Drugs are:
21 U.S.C. § 841:

21 U.S.C. § 846:

21 U.S.C. § 952:
21 U.S.C. § 953:
21 U.S.C. § 963:

Prohibits the manufacture and
distribution of, and possession “with
intent to distribute,” controlled
substances57
Prohibits attempts and conspiracies to
manufacture, distribute or possess
with intent to distribute controlled
substances58
Prohibits the importation of controlled
substances59
Prohibits the exportation of controlled
substances60
Prohibits attempts and conspiracies to
import/export controlled substances61

55. Traum, supra note 35, at 427 (citing Loïc Wacquant, Class, Race &
Hyperincarceration in Revanchist America, 139 DAEDALUS 74, 78 (2010)).
56. Id.
57. 21 U.S.C. § 841 (2012).
58. 21 U.S.C. § 846 (2012).
59. 21 U.S.C. § 952 (2012).
60. 21 U.S.C. § 953 (2012).
61. 21 U.S.C. § 963 (2012).

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The statutory penalty range for these and other drug crimes are
set forth in 21 U.S.C. §§ 841(b) and 960(b). Pursuant to these
sections, a mandatory minimum ten year to a maximum of life
sentence apples as follows:
1 kilogram of heroin
5 kilograms of cocaine (powder)
1,000 kilograms of marijuana or 1000 plants
280 grams of cocaine base
50 grams of actual methamphetamine or 500 grams of a mixture62
A mandatory minimum of 5 years to 40 years applies as follows:
100 grams of heroin
500 grams of cocaine (powder)
100 kilograms of marijuana or 100 plants
28 grams of cocaine base
5 grams of actual methamphetamine or 50 grams of a mixture63
Offenses involving lesser quantities of drugs have a statutory range
of zero to 20 years with no mandatory minimum.64

There is also a statutory provision for enhanced mandatory
minimum drug penalties based on a defendant’s prior record of drug
convictions.65 21 U.S.C. §§ 841(b) and 960(b) increase a 5 to 40 range
to 10 years to life with one qualifying prior conviction. One qualifying
prior conviction increases a 10 year mandatory minimum to 20 years
and a second qualifying prior conviction increases the 10 year
mandatory minimum to mandatory life. These enhanced provisions
are only applicable if the prosecution provides notice to the defendant
pursuant to section 851.66 The only exceptions to these mandatory
minimums are the “safety valve”67 and “substantial assistance”

62. 21 U.S.C. §§ 841(b)(1)(A), 960(b)(1) (2012).
63. §§ 841(b)(1)(B), 960(b)(2).
64. See, e.g., § 841(b).
65. Id.
66. § 851(a)(1).
67. A defendant is safety valve eligible and receives relief from the mandatory
minimum sentence in a drug case if the defendant can establish by a preponderance of
the evidence the following five factors under 18 U.S.C. § 3553(f) (2012):
(1) the defendant does not have more than 1 criminal history point, as
determined under the sentencing guidelines;
(2) the defendant did not use violence or credible threats of violence or
possess a firearm or other dangerous weapon (or induce another participant
to do so) in connection with the offense;
(3) the offense did not result in death or serious bodily injury to any person;
(4) the defendant was not an organizer, leader, manager, or supervisor of
others in the offense, as determined under the sentencing guidelines and was
not engaged in a continuing criminal enterprise, as defined in section 408 of

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motions.68 Substantial assistance motions for cooperation are made
at the sole discretion of federal prosecutors.69 There are two types of
substantial assistance motions. The statutory type authorized by
section 3553(e) permits courts to go below statutory mandatory
minimums. The other type, formally known as a “departure,” permits
a court to go below the bottom of the advisory guideline range—but
not below a mandatory minimum. This motion is authorized by
USSG § 5K1.1.70 Federal prosecutors have virtually total discretion
to make one or both motions.71 Even when defendants sign a
“cooperation plea agreement,” a well drafted one reserves total
discretion for the federal prosecutors to make the motion.72 The most

the Controlled Substances Act; and
(5) not later than the time of the sentencing hearing, the defendant has
truthfully provided to the Government all information and evidence the
defendant has concerning the offense or offenses that were part of the same
course of conduct or of a common scheme or plan, but the fact that the
defendant has no relevant or useful other information to provide or that the
Government is already aware of the information shall not preclude a
determination by the court that the defendant has complied with this
requirement.
68. Title 18 U.S.C. § 3553(e) provides:
(e) LIMITED AUTHORITY TO IMPOSE A SENTENCE BELOW A STATUTORY
MINIMUM.—Upon motion of the Government, the court shall have the
authority to impose a sentence below a level established by statute as a
minimum sentence so as to reflect a defendant’s substantial assistance in the
investigation or prosecution of another person who has committed an offense.
Such sentence shall be imposed in accordance with the guidelines and policy
statements issued by the Sentencing Commission pursuant to section 994 of
title 28, United States Code.
69. See id.; U.S. SENTENCING GUIDELINES MANUAL § 5K1.1 (2013) [hereinafter
2013 SENTENCING GUIDELINES].
70. Section 5K1.1 of the United States Sentencing Guidelines states:
§ 5K1.1 Substantial Assistance to Authorities (Policy Statement)
Upon motion of the government stating that the defendant has provided
substantial assistance in the investigation or prosecution of another person
who has committed an offense, the court may depart from the guidelines.
(a) The appropriate reduction shall be determined by the court for reasons
stated that may include, but are not limited to, consideration of the
following:
(1) the court’s evaluation of the significance and usefulness of the defendant's
assistance, taking into consideration the government's evaluation of the
assistance rendered;
(2) the truthfulness, completeness, and reliability of any information or
testimony provided by the defendant;
(3) the nature and extent of the defendant’s assistance;
(4) any injury suffered, or any danger or risk of injury to the defendant or his
family resulting from his assistance;
(5) the timeliness of the defendant's assistance.
71. See 18 U.S.C. § 3553(e); 2013 SENTENCING GUIDELINES, supra note 69, at §
5K1.1.
72. See 2013 SENTENCING GUIDELINES, supra note 70, at § 5K1.1.

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frequent reason for not making either substantial assistance motion
is when federal prosecutors have not been able to use the
information, or, if used, it is deemed by them, in their sole discretion,
to be insubstantial.73
As the following chart from the Commission demonstrates, crack
defendants received mandatory minimum sentences more often than
any other drug type.74 They also received the safety valve at a rate
substantially lower than any other drug type including almost four
times lower than heroin defendants. In the arcane and complex world
of federal sentencing, mandatory minimums are sometimes higher
than the guideline range for a particular defendant and sometimes
lower. However, absent a “safety valve” or a substantial assistance
departure, the mandatory minimum always sets the bottom floor for
a defendant’s sentence.75

2. The Advisory Sentencing Guidelines
At sentencing, federal judges are required to accurately compute
the advisory sentencing guideline range; indeed, the U.S. Supreme
Court has indicated “a district court should begin by correctly
calculating the applicable Guidelines range.”76 The federal advisory
guidelines, as Professor Frank Bowman, III, a leading academic
expert on federal sentencing, has written, “are, in a sense, simply a

73.
74.
75.
76.

See id. at § 5K1.1 cmt. 3.
2012 SOURCEBOOK, supra note 38, at tbl.44.
See supra text accompanying notes 57-64.
Gall v. United States, 552 U.S. 38, 39 (2007).

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long set of instructions for one chart: the sentencing table.”77 The
sentencing table forms a sentencing grid that contains forty-three
offense levels on a vertical axis that intersects with six criminal
history categories on a horizontal axis.78 This creates a sentencing
grid with 258 cells that each contain an advisory guideline
sentencing range in terms of months.79 The one exception is “the 6
cells for offense level 43 [the highest end] that have a single sentence:
life.”80 The “instructions” in the form of the Guidelines Manual
constitute a mere 590 pages!81 An abridged version of the sentencing
table82 is set forth below:

77. Frank O. Bowman, III, The Failure of the Federal Sentencing Guidelines: A
Structural Analysis, 105 COLUM. L. REV. 1315, 1324 (2005).
78. Marc Miller, True Grid: Revealing Sentencing Policy, 25 U.C. DAVIS L. REV.
587, 588 (1992); United States v. Newhouse, 919 F. Supp. 2d 955, 957 n.1 (N.D. Iowa
2013) (Bennett, J.); 2013 SENTENCING GUIDELINES, supra note 69, ch. 5, pt. A Sentencing Table (2013).
79. Miller, supra note 78, at 588; Newhouse, 919 F. Supp. 2d at 957 n.1; 2013
SENTENCING GUIDELINES, supra note 69, ch. 5, pt. A.
80. Newhouse, 919 F. Supp. 2d at 957 n.1; see Miller, supra note 78, at 588.
81. See 2013 SENTENCING GUIDELINES, supra note 69,.
82.

Id. ch. 5, pt. A.

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To fully explain the complexity of the current federal sentencing
regime, including how judges compute the guideline ranges and vary
or depart from them, would require an incredibly detailed analysis,
which is beyond the scope of this Article. However, the following flow
chart displays, in graph format, the steps of a federal drug
sentencing using a hypothetical, but typical, crack cocaine case:83

83.

This is an original chart created by the author.

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It is important to remember some basic first principles of federal
sentencing: 1) a sentencing judge has an important obligation to
accurately compute the advisory guideline range at sentencing;84 2)
Congressionally mandated mandatory minimum sentences—created
by Congress, not federal judges—always trump the advisory
guideline range;85 3) there are only two exceptions to mandatory
minimum sentences: the safety valve and substantial assistance
motions;86 4) unless the safety valve or substantial assistance
applies, the mandatory minimum is the lowest sentence, not the
highest, the judge may impose;87 5) for almost all drug-related
sentences, quantity is the single most important consideration for the
guideline range;88 and 6) a drug defendant is not only responsible for
his or her own drug quantity, but may also be held responsible for
the “reasonably foreseeable acts and omissions of others” including
any “criminal plan, scheme, endeavor or enterprise undertaken by
the defendant in concert with others.”89 This may be true even where
the particular defendant did not actually know the others.
Armed with this cursory knowledge of federal drug sentencing, I
now turn to the U.S. Supreme Court’s approval of evolving “policy
disagreements” with the now advisory federal sentencing guidelines.
III. POLICY DISAGREEMENTS WITH THE GUIDELINES: KIMBROUGH,
SPEARS, PEPPER, AND BEYOND
For nearly a decade, federal sentencing law has been in “a period
of profound change.”90 On December 10, 2007, the same day the U.S.
Supreme Court decided Gall, it also decided Kimbrough.91
Kimbrough generated a tsunami to the ongoing sea change in federal
sentencing. For the first time, the U.S. Supreme Court authorized,
but did not mandate, that federal district court sentencing judges
could express “policy disagreements” with the now “advisory”
crack/powder sentencing guidelines, which then had a 100:1 crack v.
powder ratio in terms of drug quantity.92 This was critical, because,
as previously mentioned, drug quantity is the single most important

84. 2013 SENTENCING GUIDELINES, supra note 69, ch. 1, pt. A, subpt. 2.
85. Id. § 5G1.1(a)-(b).
86. See id. § 5D1.2 cmt. 2-3.
87. See id. § 2D1.1 cmt. 23.
88. OFFICE OF GEN. COUNSEL, U.S. SENTENCING COMM’N, DRUG PRIMER 4-5 (2013),
available
at
http://www.ussc.gov/sites/default/files/pdf/training/primers/Primer_
Drug.pdf [hereinafter DRUG PRIMER].
89. 2013 SENTENCING GUIDELINES, supra note 69, at § 1B1.3(a)(1)(B); see, e.g.,
United States v. Laboy, 351 F.3d 578, 582 (1st Cir. 2003).
90. Michelman & Rorty, supra note 18, at 1083.
91. Gall v. United States, 552 U.S. 38 (2007); Kimbrough v. United States, 552
U.S. 85 (2007).
92. Kimbrough, 552 U.S. at 100-11.

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factor driving federal guideline calculations in drug trafficking cases
both pre and post-Booker.93 “The Commission did not use [an]
empirical approach in developing the Guidelines sentences for drugtrafficking offenses. Instead, it employed the 1986 Act’s [ADAA]
weight-driven scheme.”94 Thus, because the drug trafficking
guidelines are weight-driven and the crack/powder cocaine ratio is so
dramatic, the Court observed in Kimbrough that a major powder
cocaine supplier may, and in my view often does, “receive a shorter
sentence than” the low-level crack street dealer who got the powder
cocaine for the supplier and “then converts it to crack”95— unless a
sentencing judge grants a crack cocaine defendant relief from the
crack cocaine guideline.
Derrick Kimbrough was sentenced in the U.S. District Court for
the Eastern District of Virginia on a variety of drug trafficking
charges (e.g., possessing with intent to distribute crack and powder
cocaine) and for possessing a firearm in furtherance of a drug
trafficking offense just three months after the Booker decision.96 His
advisory guideline range was 228-270 months.97 The district court
judge stated at sentencing that Kimbrough’s guideline range was
“‘greater than necessary’ to accomplish the purposes of sentencing”
pursuant to the § 3553(a) factors and that the case was an example of
the “disproportionate and unjust effect that crack cocaine guidelines
have in sentencing.”98 The sentencing judge contrasted Kimbrough’s
sentence by noting that his guideline range of 228-270 months would
have been 97-106 months for an equivalent amount of powder
cocaine.99 He sentenced Kimbrough to the mandatory minimum
sentence of 180 months.100 The U.S. Court of Appeals for the Fourth
Circuit reversed in a per curiam opinion because, in their view, “a
sentence ‘outside the guidelines range is per se unreasonable when it
is based on a disagreement with the sentencing disparity for crack
and powder cocaine offenses.’”101 The U.S. Supreme Court
reversed.102
93. See DRUG PRIMER, supra note 88, at 4-5.
94. Kimbrough, 552 U.S. at 96.
95. Id. at 95.
96. Id. at 91, 93 n.2.
97. Id. at 92. Kimbrough acknowledged he was accountable for 56 grams of crack
cocaine that carried a mandatory minimum sentence of 120 months and a maximum of
life. He also acknowledged he was accountable for 92.1 grams of powder cocaine which
carried a statutory range of 0 to 20 years. His gun offense carried a 5 year to life
sentence that must run consecutive to the drug offense. Id. at 91-92.
98. Id. at 92-93.
99. Id. at 93.
100. Id. 120 months on the crack cocaine and other drug counts to run concurrent
with each other and 60 months consecutive on the gun charge. Id. at 93 n.3.
101. Id. at 93.
102. Id. at 111-12.

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The Court in Kimbrough held that sentencing judges had
discretion to disagree with the 100:1 crack/powder sentencing ratio
based on a policy disagreement with it, holding “it would not be an
abuse of discretion for a district court to conclude when sentencing a
particular defendant that the crack/powder disparity yields a
sentence ‘greater than necessary’ to achieve § 3553(a)‘s purposes,
even in a mine-run case.”103 In doing so, the Court resolved a major
circuit split that leaned strongly towards preventing sentencing
judges from reducing a crack sentence based on a policy
disagreement.104
Some of the amicus briefs filed in Kimbrough are illuminating on
the length of sentences under the guidelines, the racial disparity
created by the guidelines, especially the crack guideline, and the
effect of the guidelines on mass incarceration. In 1986, prior to the
adoption of the guidelines and the 100:1 ratio “the average federal
drug sentence for African Americans was 11% higher than for whites.
Four years later, and after the institution of the Guidelines, the
average federal drug sentence for African Americans was 49%
higher.”105 Also, citing U.S. Department of Justice statistics,
“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 by only 28%.”106
Looking at the average sentence of low-level crack offenders versus
high level powder cocaine importers, one amicus curiae brief noted
that “[v]iewed on a gram-by-gram basis, street level crack dealers are
punished 300 times more severely than high-level cocaine powder
importers.”107
103. Id. at 110.
104. At the time certiorari was granted in Kimbrough, there was a significant
circuit split. Id. at 93 n.4. The U.S. Courts of Appeals for the D.C. and Third Circuits
maintained that a district court may take the sentencing disparity into account when
imposing a non-guideline sentence. See United States v. Pickett, 475 F.3d 1347, 135556 (D.C. Cir. 2007) (“District Court erred when it concluded that it had no discretion to
consider the crack/powder disparity in imposing a sentence”); United States v. Gunter,
462 F.3d 237, 248-49 (3d Cir. 2006) (same conclusion as Pickett). The U.S. Courts of
Appeals for the First, Second, Fourth, Fifth, Seventh, Eighth, and Eleventh Circuits
had held that a sentencing court may not impose a sentence outside the guideline
range based on its disapproval of the crack/powder disparity. See United States v.
Leatch, 482 F.3d 790, 791 (5th Cir. 2007); United States v. Johnson, 474 F.3d 515, 522
(8th Cir. 2007); United States v. Castillo, 460 F.3d 337, 361 (2d Cir. 2006); United
States v. Williams, 456 F.3d 1353, 1369 (11th Cir. 2006); United States v. Miller, 450
F.3d 270, 275-76 (7th Cir. 2006); United States v. Eura, 440 F.3d 625, 633-34 (4th Cir.
2006); United States v. Pho, 433 F.3d 53, 62-63 (1st Cir. 2006).
105. Brief for the NAACP Legal Defense & Educational Fund, Inc. as Amicus
Curiae Supporting Petitioner at 5-6, Kimbrough v. United States, 552 U.S. 85 (2007)
(No. 06-6330), 2007 WL 2155556, at *5-6.
106. Id. at 6.
107. Brief for the Sentencing Project and for the Center for the Study of Race and

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The NAACP Legal Defense & Educational Fund, Inc. amicus
curiae brief, in noting that the “results of these disparities for African
Americans have been devastating,” outlined their effect on dilution of
voting rights, impaired capacity for re-entry, and other harms to the
community, including “the breakdown of community social structures
like churches and schools that face a shortage of male leaders.”108
Finally, quoting several prominent trial and appellate federal
judges,109 the amicus brief hammers home the point that the
crack/powder disparity “has engendered near universal criticism,
causing widespread disrespect for the law and undermining the goals
of the Sentencing Reform Act.”110 The amicus brief concludes its
section on crack disparity promoting disrespect for the law by
observing “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.”111
The decision in Kimbrough was a major impetus for my drug
sentencing journey along the sentencing road less travelled. The
rationale of Kimbrough clearly exposed the irrefutable fact that the
drug guideline was not based on the 10,000 prior empirical
sentencings that the Commission so frequently touted nor on the
national experience in drug sentencing.112
Kimbrough was followed, two years later, by Spears v. United
States,113 a case I am intimately familiar with because I was the
sentencing judge. I was reversed twice by the Eighth Circuit Court of
Appeals with the additional distinction of both reversals coming from
an en banc court. Additionally, lead counsel in the U.S. Supreme
Law at the University of Virginia Law School as Amici Curiae Supporting Petitioner at
11, Kimbrough v. United States, 552 U.S. 85 (2007) (No. 06-6330), 2007 WL 2155555,
at *11.
108. Brief for the NAACP Legal Defense & Educational Fund, supra note 105, at *68.
109. Id. at *10 (“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 FED. SENT’G REP. 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) . . . .”).
110. Id. at *8.
111. Id. at *13.
112. See Kimbrough v. United States, 552 U.S. 85, 96 (2007).
113. 555 U.S. 261 (2009).

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Court appeal was my co-author in “A Holocaust in Slow Motion?”
Mass Incarceration in America and the Role of Discretion, Professor
Mark Osler, who I did not know at the time of the Spears appeal. On
December 19, 2005, following a jury verdict finding Steven Spears
guilty of both crack and powder cocaine trafficking, Spears came
before me for sentencing. Remember, this was just one week shy of
two years prior to the U.S. Supreme Court opinion in Kimbrough.114
Spears’s guideline range was 324-405 months.115 Believing I had the
authority to disagree on policy grounds with the 100:1 guideline
crack/powder cocaine ratio, based on the holding in Booker and the
fact that the guidelines were now advisory, I adopted a 20:1 ratio—
which lowered Spears’s guideline range to 210-262 months. Because
Spears had a 240 month statutory mandatory minimum, I sentenced
him to 240 months.116 The U.S. Court of Appeals for the Eighth
Circuit, in an en banc ruling, reversed in a 10-2 opinion.117 The court
held: “based on the district court’s categorical rejection of
congressional policy, the court impermissibly varied by replacing the
100:1 quantity ratio inherent in the advisory Guidelines range with a
20:1 quantity ratio.”118 The lengthy dissent would have only affirmed
the “reasonable sentence imposed by the district court.”119 Judge Bye
also noted that “[s]entencing black offenders more severely than
similarly-situated white offenders, with no reasoned basis for doing
so, promotes disrespect for the law and the system rather than
respect, and creates unwarranted and discriminatory sentencing
disparities.”120
On January 7, 2008, the U.S. Supreme Court granted certiorari,
vacated the judgment of the en banc panel, and remanded “for
further consideration in light of Kimbrough v. United States.”121
On remand, the Eighth Circuit Court of Appeals, again en banc,
but this time by a vote of 6-5, and over another vigorous dissent,
again reversed my sentencing decision and noted quite erroneously,
“[n]othing in Kimbrough suggests the district court may substitute
its own ratio for the ratio set forth in the Guidelines.”122
In a per curiam opinion, the U.S. Supreme Court again reversed
the en banc decision of the Eighth Circuit Court of Appeals. 123 The
114.
115.
116.
117.
banc).
118.
119.
120.
121.
122.
123.

Kimbrough was decided on December 10, 2007. Kimbrough, 552 U.S. at 85.
Spears, 555 U.S. at 840.
Id. at 242.
United States v. Spears (Spears I), 469 F.3d 1166, 1178 (8th Cir. 2006) (en
Id.
Id. at 1191 (Bye, J., dissenting).
Id. at 1190.
Spears v. United States, 552 U.S. 1090, 1090 (2008).
United States v. Spears (Spears II), 533 F.3d 715, 717 (8th Cir. 2008) (en banc).
Spears v. United States, 555 U.S. 261, 268 (2009) (per curiam).

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court held that “Kimbrough considered and rejected the position
taken by the Eighth Circuit below.”124 The Court also stated: “That
was indeed the point of Kimbrough: a recognition of district courts’
authority to vary from the crack cocaine Guidelines based on policy
disagreement with them, and not simply based on an individualized
determination that they yield an excessive sentence in a particular
case.”125 Finally, the Court also observed what seemed rather obvious
after Kimbrough:
As a logical matter, of course, rejection of the 100:1 ratio, explicitly
approved by Kimbrough, necessarily implies adoption of some other
ratio to govern the mine-run case. A sentencing judge who is given
the power to reject the disparity created by the crack-to-powder
ratio must also possess the power to apply a different ratio which,
in his judgment, corrects the disparity. Put simply, the ability to
reduce a mine-run defendant’s sentence necessarily permits
adoption of a replacement ratio.126

Thus, Steven Spears’s long and undoubtedly painful trip through
two en banc circuit rulings and two U.S. Supreme Court decisions,
aided by Professor Osler as lead counsel, resulted in a clear holding
that sentencing judges could indeed disagree with the 100:1
crack/powder ratio on policy grounds and impose a lower sentence
than that called for by the guidelines.127
Two years after Spears, the U.S. Supreme Court decided Pepper
v. United States.128 I was also the sentencing judge in Pepper. Like
Spears, I was reversed by the Eighth Circuit Court of Appeals
multiple times, breaking my Spears record with a total of three
reversals in Pepper129 and five in total in Spears and Pepper. While
the procedural history of Pepper is fascinating and worthy of a law
review article in its own right, it will not be discussed here. Suffice it
to say, the Eighth Circuit Court of Appeals did not agree with my
sentence of twenty-four months (Pepper’s guideline range was 97-121

124. Id. at 264.
125. Id.
126. Id. at 265.
127. See id. at 265-66 (“[D]istrict courts are entitled to reject and vary categorically
from the crack-cocaine Guidelines based on a policy disagreement with those
Guidelines.”).
128. 131 S. Ct. 1229 (2011).
129. Pepper, 131 S. Ct. at 1236, 1237-38; see United States v. Pepper (Pepper I), 412
F.3d 995, 999 (8th Cir. 2005); United States v. Pepper (Pepper II), 486 F.3d 408, 413
(8th Cir. 2007); United States v. Pepper (Pepper III), 518 F.3d 949, 953 (8th Cir. 2008).
By the time Pepper IV, United States v. Pepper, 570 F.3d 958, 964-65 (8th Cir. 2009),
rolled around, I had been removed from the case by the Eighth Circuit Court of
Appeals. Pepper, 131 S. Ct. at 1238. The court indicated my removal was due to my
“expressed a reluctance to resentence Pepper again should the case be remanded.”
Pepper III, 518 F.3d at 953.

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months)130 each time I gave it because they thought it way too
lenient.131
At its core, the Pepper case addressed whether I could consider
Pepper’s amazing post-offense rehabilitation in his first of many
resentencings.132 For purposes of this Article, Pepper is important
because it reaffirmed the Kimbrough holding that district court
judges have the power to reject guidelines on policy grounds and
extended Kimbrough’s holding beyond the crack/powder ratio.133 The
Court acknowledged that a disagreement with the unequivocal policy
statement in USSG § 5K2.19, which bars consideration of postsentencing rehabilitative efforts, was appropriate.134 The Court held
this “is particularly true where, as here, the Commission’s views rest
on wholly unconvincing policy rationales not reflected in the
sentencing statutes Congress enacted.”135
I turn now to my professional journey through authored opinions
on “policy disagreements” with various aspects of the drug trafficking
guidelines. This includes decisions both pre and post FSA of 2010
which substantially reduce the disparity between crack and powder
cocaine sentences in federal court.
IV. DOING KIMBROUGH JUSTICE POST SPEARS AND PEPPER
A. United States v. Gully
One day shy of two months following the U.S. Supreme Court’s
decision in Spears, affirming my 20:1 crack/powder cocaine ratio, I
entered an order for the parties to brief whether I had discretion to
reduce the Spears ratio from 20:1 to 1:1 and whether that was
appropriate in Demetrius Gully’s case.136 I determined the
Commission did not base its original crack/powder cocaine ratio on
empirical evidence.137 The Commission itself came to acknowledge,
years later, that the harm of crack, the violence allegedly associated
with it, and the seriousness of crack offenses were all seriously
overstated and that the crack/powder disparity was inconsistent with
the goal of the ADAA of 1986 to punish major drug traffickers more
harshly than low-level dealers.138 After years, the Commission had

130. Pepper I, 412 F. 3d at 996-97.
131. Id. at 997; Pepper II, 486 F. 3d at 410; Pepper III, 518 F. 3d at 950.
132. Pepper, 131 S. Ct. at 1249-50.
133. See id. at 1241, 1247, 1254.
134. Id. at 1247 (“[D]ecisions make clear that a district court may in appropriate
cases impose a non-Guidelines sentence based on a disagreement with the
Commission’s views.”).
135. Id. at 1247.
136. United States v. Gully, 619 F. Supp. 2d 633, 635 (N.D. Iowa 2009).
137. Id. at 638.
138. U.S. SENTENCING COMM’N, REPORT TO THE CONGRESS: COCAINE AND FEDERAL

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finally come to understand that the crack/powder disparity promoted
disrespect for and lack of confidence in the criminal justice system. 139
These and many other reasons, convinced me I should adopt a 1:1
ratio, not only for Mr. Gully, but across-the-board in all crack
cases.140 My analysis did not end there, however. Due to my
expressed across-the-board policy disagreement with the
crack/powder disparity, I reduced Gully’s advisory guideline range of
108-135 months to 30-37 months.141 In the end, numerous other
factors caused me to raise his sentence to more than twice the upper
range of his 1:1 ratio guideline range.142 Ultimately, I imposed a
sentence of 84 months—24 months less than the 100:1 ratio advisory
guideline range.143
The United States did not appeal and, to my knowledge, has
never appealed any of my 1:1 ratio crack sentencing rulings. “‘Crack
cocaine’ is after all, just cocaine powder ‘cooked’ with water and
baking soda.”144 More importantly, the then existing crack ratio was
an extremely poor proxy for criminal culpability.145 Not only is the
ratio a poor proxy for the length of a sentence, so too, as I have stated
in my opinion and decisions, is the weight of the drugs involved.146
This theme pervades my evolving drug sentencing philosophy.

SENTENCING
POLICY
7-8,
14
(2007),
available
at
www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-and-reports/drugtopics/200705_RtC_Cocaine_Sentencing_Policy.pdf.
139. Id.
140. Gully, 619 F. Supp. 2d at 638-45.
141. Id. at 645-46.
142. I found the following factors aggravating under the § 3553(a) analysis:
[T]he defendant’s history of assaultive conduct, including assaultive conduct
toward women; his continued drug dealing while on pretrial release; the
court’s finding that he was not merely a street dealer of crack, but a larger
supplier of crack cocaine in Fort Dodge, Iowa; his irresponsible behavior in
fathering six children by four women while having no employment history;
his lack of employment history itself suggesting that he was making a living
dealing drugs; evidence that he had gotten his sister to try to “take the rap”
for his assault on another woman; and his repeated criminal offenses
suggesting recidivism and the likelihood that he would reoffend unless
incarcerated . . . .
Id. at 645.
143. Id. at 645-46.
144. Id. at 636 n.3. Just a year after the Gully decision was filed, Congressman
Keith Ellison (D-Minn.) would note: “The fact is, the chemical difference between crack
and [powder] cocaine is the difference[] between water and ice. It is the same thing,
and you cannot explain to a people that for doing the same thing that they should get
100-to-1 more severe treatment. It doesn’t make sense.” United States v. Williams, 788
F. Supp. 2d 847, 849 (N.D. Iowa 2011) (Bennett, J.).
145. See Gully, 619 F. Supp. 2d at 638.
146. See, e.g., id.

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B. The Fair Sentencing Act of 2010 and United States v.
Williams
Just a little more than one year after I decided Gully, on August
3, 2010 the FSA of 2010 became law.147 The purpose of the Act, inter
alia, was to partially ameliorate the unjustness of the crack/powder
disparity, as I explained in Williams:
The 2010 FSA altered the quantity thresholds triggering
mandatory minimum punishments for crack cocaine offenses,
replacing the 5–and 50–gram thresholds with 28–and 280–gram
thresholds, while leaving the triggering thresholds for powder
cocaine at 500 and 5,000 grams (5 kilograms), respectively. See 21
U.S.C. § 841(b)(1)(A)(ii) (powder cocaine), (b)(1)(A)(iii) (crack
cocaine), (b)(1)(B)(ii) (powder cocaine), (b)(1)(B)(iii) (crack cocaine)
(as amended in 2010). As a result, Congress replaced the old 100:1
ratio with a new roughly 18:1 ratio (18 x 28 grams = 504 grams; 18
x 280 grams = 5,040 grams or 5.04 kilograms). At Congress’s
direction, the Sentencing Commission followed suit by adopting a
similar disparate punishment scheme for crack and powder cocaine
offenses, employing roughly the same 18:1 ratio.148

As I indicated in the Williams decision, “[w]hen I first learned
that the 2010 FSA was about to be passed, I just assumed that I
would change . . . from a 1:1 ratio to the new 18:1 ratio . . . I assumed
that Congress would have had persuasive evidence—or at least some
empirical or other evidence—before it as the basis for the new
ratio.”149 I also assumed that the Commission “would have brought
its institutional expertise and empirical evidence to bear, both in
advising Congress and in adopting crack cocaine Sentencing
Guidelines based on the 18:1 ratio.”150 Finally, in the Williams
presentencing hearing, “I assumed that the prosecution would
present . . . some evidence supporting the 18:1 ratio.”151 None of these
assumptions about the new 18:1 ratio were accurate. As I wrote in
Williams, “the ‘new’ 18:1 ratio, like the old 100:1 ratio, was
ultimately the result of political expediency, not Congress’s usual
deliberative process.”152 I went on to find that “[w]hile there is
nothing wrong with political expediency in the legislative process or
the legislative branch, it cannot be the basis for the exercise of
appropriate judicial discretion in individual sentencings.”153 That the
FSA of 2010 was a “political compromise” not based on empirical

147.
148.
149.
150.
151.
152.
153.

Williams, 788 F. Supp. 2d at 853.
Id..
Id. at 849.
Id. at 849-50.
Id. at 850.
Id. at 866.
Id. at 867.

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evidence is beyond dispute.154
In rejecting the new 18:1 ratio, while finding it an improvement
over the prior 100:1 ratio, I noted that the new ratio suffers from
most or all of the injustice in the prior ratio plus some new ones.155
Thus, I rejected the 18:1 ratio, based on a categorical policy
disagreement with it—even in a mine-run case.156 In reaching this
conclusion, I set out the following factors:
Congress’s adoption of the 18:1 ratio was the result of political
compromise and expediency, not the result of reasoned analysis of
new empirical data or social science research;
The 18:1 ratio does not exemplify the Sentencing Commission’s
exercise of its characteristic institutional role of employing an
empirical approach based on data about past sentencing practices
to develop sentencing guidelines, but is the result of congressional
mandates that still interfere with and undermine the work of the
Sentencing Commission;
The assumptions about the relative harmfulness of crack cocaine
compared to powder cocaine and the relative harms that come with
trafficking in those controlled substances are not supported by
research and data in the decades since passage of the 1986 Act and
no effort has been made to demonstrate that the 18:1 ratio is more
proportional to any additional harms of crack cocaine trafficking, if
any, that are borne out by recent research;
The 18:1 ratio is still inconsistent with the goals of the 1986 Act
and is also inconsistent with the 2010 FSA’s goal of restoring
“fairness” to federal cocaine sentencing, because it tends to have
the anomalous effect of punishing low-level crack traffickers more
severely than major traffickers in powder cocaine;
As a corollary to the prior point, the 18:1 ratio fails to recognize the
ready convertibility of crack and powder cocaine or that such
convertibility is part of the usual course of cocaine trafficking, from
producers to retail purchasers;
The 18:1 ratio still will have a disproportionate impact on black
offenders, which will continue to foster disrespect for and lack of
confidence in the criminal justice system;
The 18:1 ratio, as a “proxy” for the assumed risks and harms of
crack cocaine, remains a remarkably blunt instrument to address
those assumed risks and harms;
Addition of enhancements for certain aggravating circumstances,
including enhancements for violence, in specific cases, will operate
as a “double whammy” on crack cocaine defendants, whom the 18:1
ratio already punishes for the assumed presence of such
154. Id. at 870-79. This section of the Williams decision details the overwhelming
evidence of a purely political compromise.
155. Id. at 885-86.
156. Id. at 886.

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circumstances.157

I found it extremely important to note in Williams that a policy
disagreement with a guideline, as former U.S. District Court Judge
Nancy Gertner observed, “is not because I simply disagree with them
and seek to substitute my own philosophy of sentencing. It is because
the Guideline at issue is wholly inconsistent to the purposes of
sentencing under 18 U.S.C. § 3553(a).”158 Finally, I noted in Williams
that policy disagreements with the guidelines do not promote
unwarranted sentencing disparity.159 Indeed, the failure to vary on
policy grounds can promote: “[w]hat the prosecution is actually
arguing for here is unwarranted uniformity, which is just as offensive
to the sentencing scheme as unwarranted disparity.”160
C. United States v. Hayes
Two years after Williams, I decided United States v. Hayes,
which extended my policy disagreement with the crack guideline to
the methamphetamine (meth) guideline.161 After an extensive
discussion of the history of the meth guideline, the undisputable fact
that neither the current nor former meth guideline was or is based
on empirical evidence of any kind, that a whopping 83.1% of the meth
defendants in federal court faced a mandatory minimum sentence
even though the vast majority were not kingpins, and since quantity
is a poor proxy for most meth defendants’ criminal culpability, I
expressed an across-the-board policy disagreement with the
harshness of the meth guideline because it is so deeply flawed.162 I
decided to reduce meth guideline ranges by one-third before factoring
in the other § 3553(a) factors that can raise or lower a meth
defendant’s sentence.163 In reaching this decision, I was heavily
influenced by prior decisions by Judge John Gleeson, 164 former Judge
Nancy Gertner,165 and Judge Joseph Bataillion.166

157. Id.
158. Id. at 889 (citing United States v. Whigham, 754 F. Supp. 2d 239, 242-43 (D.
Mass. 2010) (Gertner, J.)).
159. Williams, 788 F. Supp. 2d at 887-90.
160. Id. at 889.
161. 948 F. Supp. 2d 1009, 1014 (N.D. Iowa 2013) (Bennett, J.).
162. Id. at 1014-31.
163. Id. at 1031-33.
164. United States v. Diaz, No. 11-CR-00821-2 (JG), 2013 WL 322243 (E.D.N.Y.
Jan. 28, 2013) (discussed at length in Hayes, 948 F. Supp. 2d at 1017-18).
165. United States v. Cabrera, 567 F. Supp. 2d 271 (D. Mass. 2008).
166. United States v. Woody, No. 8:09CR382, 2010 WL 2884918 (D. Neb. July 20,
2010); United States v. Ortega, No. 8:09CR400, 2010 WL 1994870 (D. Neb. May 17,
2010); United States v. Nincehelser, No. 8:08CR249, 2009 WL 872441 (D. Neb. Mar.
30, 2009).

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D. United States v. Young
Judges, even those who want to, can only do so much
“Kimbrough justice.” One weapon only federal prosecutors have the
power to unleash is doubling of drug mandatory minimum sentences
potentially to a mandatory life sentence by filing the feared 21 U.S.C.
§ 851 enhancement.167 I started my opinion in United States v. Young
as follows:
This case presents a deeply disturbing, yet often replayed,
shocking, dirty little secret of federal sentencing: the stunningly
arbitrary application by the Department of Justice (DOJ) of § 851
drug sentencing enhancements. These enhancements, at a
minimum, double a drug defendant’s mandatory minimum
sentence and may also raise the maximum possible sentence, for
example, from forty years to life. They are possible any time a drug
defendant, facing a mandatory minimum sentence in federal court,
has a prior qualifying drug conviction in state or federal court (even
some state court misdemeanor convictions count), no matter how
old that conviction is.168

After obtaining the raw data file from the Commission, the only
known source of § 851 data, I was the first judge or legal scholar to
analyze and publish such shocking facts.169 I was deeply concerned
that “in the N.D. of Iowa, there was no discernible local policy or even
a whiff of an identifiable pattern. I have never been able to discern a
pattern or policy of when or why a defendant receives a § 851
enhancement in my nearly 20 years as a U.S. district court
judge . . . .”170 Neither the defense lawyers nor the Assistant U.S.
Attorneys who appear before me, nor our myriad of U.S. probation
officers, could articulate a pattern either.171 What the data revealed
was shocking, and I likened it to a “Wheel of Misfortune.”172 A
defendant in the Northern District of Iowa who was eligible for a §
851 enhancement was 2531.95% more likely to receive a § 851
enhancement than a defendant in the District of Nebraska 173—a
district I can see out the window of the courtroom I use. For the
District of South Dakota, which I can drive to in less than 5 minutes,
the percentage was 1981.25%.174 Disparities like these exist
everywhere in the nation:

167. See United States v. Young, 960 F. Supp. 2d 881, 882 (N.D. Iowa 2013)
(Bennett, J.).
168. Id. (footnotes omitted).
169. Id.
170. Id. at 887.
171. Id. 887-88.
172. Id. at 889-90.
173. Id. at 918.
174. Id.

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Tennessee offers the largest intra-state disparity in application. In
the E.D. of Tennessee, offenders are 3,994% more likely to receive a
§ 851 enhancement than in the W.D. of Tennessee. Offenders with
a qualifying prior drug conviction in the W.D. of Texas were 2,585%
more likely to have the Wheel of Misfortune land on a § 851
enhancement than their counterparts in the N.D. of Texas. Georgia
offenders unfortunate enough to be charged in the N.D. faced a
2,470% greater likelihood of a § 851 enhancement than their
brothers or sisters in the M.D. and 680% worse odds of a prosecutor
not waiving the § 851 enhancement than eligible defendants in the
S.D. Apparently, Assistant U.S. Attorneys in the N.D. of Georgia
are less persuaded by the state motto: Wisdom, Justice, and
Moderation. Flying back to the East Coast, the birthplace and
signing place of the Declaration of Independence, Pennsylvanians
have not seemed to benefit in equality from their noble heritage.
The 2,257% increased opportunity for defendants in the E.D. of
Pennsylvania to enjoy at least twice the amount of time in a federal
penitentiary, compared to the unfortunately shortchanged
offenders in the M.D. of Pennsylvania, where eligible defendants
are stingily bequeathed § 851 enhancements only 2.5 % of the time,
is another prime example of gross disparity.175

Fortunately, on August 12, 2013, in the now famous Holder
Memorandum, Attorney General Eric Holder announced a national
policy on the appropriate use of § 851 enhancements by local U.S.
Attorneys.176 In the relatively brief time this new policy has been in
existence, I have observed significant changes. Formerly filed § 851
enhancements have frequently been withdrawn and, in new cases,
the U.S. Attorney’s Office has used considerable restraint in filing
them. Because filing § 851 enhancements double a drug defendant’s
mandatory minimum, this will have a substantial impact on mass
incarceration by the federal courts.
E. The Surprising Lack of Judges Doing “Kimbrough Justice”
Since the Booker & Gall sentencing revolution in 2005 and 2007,
I have been surprised by the very small number of judges invoking
Kimbrough and Spears type policy disagreements with the guidelines
and policy statements to help ameliorate the harshness of the
guidelines in general, especially in drug cases, and particularly in
crack cases. The same is also true for the basic Booker-type
downward variances using the 18 U.S.C § 3553(a) factors. Indeed,
recent data from the Commission indicates that, in fiscal year 2013,
judges sentenced below the guideline range without non-government
motions in all federal sentencings just 18.7 % of the time. 177 This
175. Id. at 902.
176. Id. at 888.
177. U.S. SENTENCING COMM’N, 2013 SOURCEBOOK OF FEDERAL SENTENCING
STATISTICS tbl.N (2014), http://www.ussc.gov/research-and-publications/annual-

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includes all reasons for going lower than the guidelines: departures,
variances, and policy disagreements.178 So, the vast majority of
federal judges are sentencing within the guidelines in the vast
majority of cases unless the United States requests otherwise.179
Indeed, focusing on crack sentencings, the Commission’s data
indicates that, in the five year period from 2009-2013, there was only
a 1.8% increase in “the rate of non-government sponsored below
range sentences for crack cocaine traffickers.”180
Until an empirical study is done, no one knows what all the
various reasons and explanations are for why some judges vary from
the guidelines much more often than others; why some judges almost
never vary from the guidelines; and why some judges often do
“Kimbrough justice” while others see it as “Kimbrough injustice.” I do
think some important insights can be drawn from the recent Sixth
Circuit Court of Appeals’s decision in United States v. Kamper.181
Kamper involved the district court’s decision not to vary from the
“MDMA-to-marijuana equivalency ratio contained in the Sentencing
Guidelines . . . .”182 In the district court, “Kamper filed a motion (‘the
Ratio Motion’) requesting that the district court select a new MDMAto-marijuana equivalency ratio to compute a more appropriate
sentence, or at least vary from the Guidelines range calculated using
the flawed ratio.”183 In the Ratio Motion, Kamper specifically asked
the sentencing judge “to categorically reject the current 1:500
MDMA-to-marijuana ratio under the Guidelines and replace it with a
lower one.”184 The district court, “[a]lthough sympathetic to Kamper’s
underlying claim that the scientific support justifying the current
1:500 MDMA-to-marijuana ratio has eroded significantly since the
Commission adopted it in 2001, the Court declined his invitation” to
reject the ratio and adopt a new one.185
The district court expressed several concerns that supported the
decision not to reject the ratio and adopt a new one.186 First, the court
found a separation of powers issue that prevented courts from

reports-sourcebooks/2013/sourcebook-2013 [hereinafter 2013 SOURCEBOOK].
178. Id.
179. Id.
180. Quick Facts on Crack Cocaine Trafficking Offenses, supra note 17, at 2.
181. 748 F.3d 728 (6th Cir. 2014).
182. Id. at 735.
183. Id.
184. United States v. Kamper, 860 F. Supp. 2d 596, 599 (E.D. Tenn. 2012). In a
thorough recitation of the history of the MDMA guideline, the district court noted that
the MDMA ratio in the guidelines started at one gram of MDMA to thirty-five grams
of marijuana then escalated to 500:1, less than the heroin guideline (1000:1), but more
than the powder cocaine guideline (200:1). Id. at 598-599.
185. Id. at 603.
186. Id. at 603-07.

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exercising “a freestanding power to legislate sentencing policy or
promulgate amendments to the Guidelines.”187 Second, the court was
concerned that 677 different federal district court judges would come
up with different MDMA ratios.188 “There could then theoretically be
677 different MDMA-to-marijuana ratios . . . .”189 The court thought
that “[t]his approach would almost certainly produce the kind of
unwarranted sentencing disparities § 3553 attempts to avoid. See
§ 3553(a)(7).”190 Finally, the court expressed its belief that both
Congress and the Commission “are better placed to determine the
appropriate MDMA-to-marijuana ratio not only because such an
inquiry involves empirical questions of national magnitude, but also
because such a determination requires value judgments concerning
the relative harm of a controlled substance.”191
The Sixth Circuit Court of Appeals found each of these reasons
erroneous.192 Not only erroneous, but “the very constitutional and
institutional objections rejected by the Supreme Court in
Kimbrough.”193 The Sixth Circuit Court of Appeals noted that “the
district courts ‘are not free to cede their discretion by concluding that
their courtrooms are the wrong forum for setting a [new] ratio.’” 194
The court cautioned that “[t]he district court ‘must not rely on the
Guidelines for reasons that Kimbrough rejected, such as institutional
competence, deference to Congress, or the risk that other judges will
set different ratio[].’”195 The Sixth Circuit Court of Appeals did not
reverse and remand, because it determined that the district court
would have given the same sentence even if it had not relied on
erroneous reasons.196 The court noted that, even when a district court
judge has a policy disagreement with the guidelines, the judge may,
but never is required to, reject a guideline he disagrees with.197
So what lessons can be drawn from Kamper? First, I would not
be surprised if the district court’s rationale for declining a
Kimbrough policy disagreement in Kamper is likely widely held by
many judges—they just are not as candid on the record as the district
court judge in Kamper. Every district court judge knows that if he
does not want to get reversed by the circuit court, he can simply
recognize the authority to vary on policy grounds and decline to do
187.
188.
189.
190.
191.
192.
193.
194.
195.
196.
197.

Id. at 603-04 (citation omitted).
Id. at 605.
Id.
Id.
Id. at 607.
United States v. Kamper, 748 F.3d 728, 739-40 (6th Cir. 2014).
Id. at 743.
Id. at 742 (citation omitted).
Id.
Id. at 743-44.
Id. at 742.

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so—and leave it at that. Second, in my view, many judges give the
Commission far too much credit for adopting guidelines, especially
the drug guidelines, based on empirical research and prior national
experience. That is simply not the case.198 Third, judges have
concerns about balancing national uniformity, which is eroded, when
one does “Kimbrough justice.” I have wrestled with this for years and
ultimately concluded, only for myself, that, while I do create
disparity when doing “Kimbrough justice,” it is not unwarranted
disparity. Fourth, the guidelines, while an anchor199 in the sense of
the starting point for determining an appropriate sentence, likely
have a strong cognitive anchoring effect that acts as a strong
subconscious gravitational pull towards a guideline sentence. Fifth,
some of my colleagues do not often see, if ever, a guideline sentence
as harsh, or, if they do, they are willing to defer to the Commission
for a host of various reasons. The wondrous beauty of the federal
judiciary is its independence. I sleep well at night knowing I have
done more “Kimbrough justice” than many of my colleagues and thus,
for me, I have been faithful to my oath of office. However, I fully
recognize that other judges who see it very differently sleep just as
well at night and have been just as faithful to their oath of office. The
independence of the federal judiciary requires no less. Finally, the
reasons why some judges often vary, including policy disagreements
with various guidelines, and others seldom do, is ripe for empirical

198. See Osler & Bennett, supra note 4, at 137-45, for an extensive discussion of the
myth surrounding the drug guidelines. See also United States v. Diaz, No. 11-CR00821-2 (JG), 2013 WL 322243, at *3-7 (E.D.N.Y. Jan. 28, 2013) (discussing difficulties
the Commission had when creating the Guidelines that led to uneven punishment
ranges within the sentencing landscape); Lynn Adelman, What the Sentencing
Commission Ought to be Doing: Reducing Mass Incarceration, 18 MICH. J. RACE & L.
295, 302 (2013) (“[T]he severity of the guidelines was not based on past sentencing
practice[s].”); Lynn Adelman & Jon Deitrich, Improving the Guidelines Through
Critical Evaluation: An Important Role for District Courts, 57 DRAKE L. REV. 575, 578
(2009) (“The problem is that few guidelines can be shown to be based on actual
preguideline sentencing practice or on Commission research and expertise.”); Amy
Baron-Evans & Kate Stith, Booker Rules, 160 U. PA. L. REV. 1631, 1660 (2012) (“The
first Commission also created unnecessarily severe rules . . . . The effect was to more
than double the average time served by federal drug offenders and to massively
expand the federal prison population over the next twenty years.”).
199. “The post-Booker federal sentencing scheme aims to achieve uniformity by
ensuring that sentencing decisions are anchored by the Guidelines . . . .” Peugh v.
United States, 133 S. Ct. 2072, 2083 (2013). However, as Judge Calabresi noted just
four days after Peugh, “[i]t is important to distinguish the guidelines’ intended,
salutary effect—promoting consistency and proportionality in sentencing—from the
unintended anchoring effect that the guidelines can exert.” Unites States v. Ingram,
721 F.3d 35, 40 n.2 (2d Cir. 2013) (Calabresi, J., concurring). For a detailed discussion
and analysis of the potential for the anchoring effect and blind spot biases in federal
sentencing see Mark W. Bennett, Confronting Cognitive “Anchoring Effect” and “Blind
Spot” Biases in Federal Sentencing: A Modest Solution for Reforming a Fundamental
Flaw, 104 J. CRIM. L. & CRIMINOLOGY 489 (2014).

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study. One trusted federal judge, long-time friend and confidant,
with a much different sentencing philosophy from my own, responded
when I recently asked why so many judges, including him, sentence
so often within the guidelines. He instantly answered, “It’s what we
grew up with as judges and it’s what we know and are comfortable
with.” Anecdotally, I suspect that may be the response of most judges
who seldom vary from a guideline sentence. They came of age as
lawyers and judges in a mandatory guideline era.
One social science scholar recently invited “federal court
practitioners to consider partnering with social science researchers
as we endeavor to examine and assess the sentencing process in the
post-Booker era.”200 She concluded her article, “And, as federal
sentencing gets transformed by a shift of discretionary power back to
judges, there is no better time to undertake more contextualized,
qualitatively rich examinations.”201 More empirical information
would greatly assist federal judges in reexamining their own views of
the exercise of their sentencing discretion, especially using the §
3553(a) factors and deciding when to do or not do “Kimbrough
justice.”
The next portion of this Article is a response to two Third Circuit
judges who, five years apart, wrote law review articles in the
Duquesne Law Review. Both urge district court judges to use caution
in doing “Kimbrough justice.”
V. A RESPONSE TO TWO THIRD CIRCUIT JUDGES’ LAW REVIEW ARTICLES
Post-Booker, should the potential for legislative backlash be at
the forefront of the exercise of district court sentencing discretion and
be a powerful brake on district court judges doing “Kimbrough
justice” or granting downward variances under § 3553(a)? That is the
thesis of Third Circuit Judge D. Michael Fisher.202 I suggest there
are serious analytical flaws in Judge Fisher’s position. First, Judge
Fisher continues to perpetuate the myth that each guideline is based
on empirical evidence and the prior national experience based on the
Commission’s early work in gathering and analyzing 10,000 presentence reports. Judge Fisher claims,
district courts must recognize that the advisory Guidelines range
for each offense reflects the learned opinion of a commission of
sentencing experts. Each advisory Guidelines range is the result of
a process of careful deliberation by the Sentencing Commission, a
process that takes into consideration the goals of sentencing set
forth by Congress, pertinent policy statements, and years of federal

200. Mona Lynch, Expanding the Empirical Picture of Federal Sentencing: An
Invitation, 23 FED. SENT’G REP. 313, 313 (2011).
201. Id. at 316.
202. Fisher, supra note 20, at 66.

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sentencing practice.203

Again, this is not only inaccurate, but false. While there are
many offshoots of this guidelines myth, the best is the leading cause
of the federal contribution to mass incarceration: the drug trafficking
guidelines, which incarcerate more individuals for longer sentences
that any other area of federal law.204 Second, Judge Fisher warns
district court judges not to “use this newfound discretion to blaze new
sentencing trails” because to do so could “result in disparate
sentences and, ultimately, legislative backlash that would strip the
federal judiciary of its newly retrieved discretion.”205 Further, Judge
Fisher asserts that “[t]o completely disregard such educated advice
[of the Guidelines] would clearly be an act of the most inappropriate
of judicial activism.”206 As for the “legislative backlash,”207 I suggest
that it would be a serious separation of powers problem for Article III
sentencing judges to let concerns of what Congress might do affect
either directly or implicitly their judgment about how long a sentence
should be to reflect a “sentence [that is] sufficient, but not greater
than necessary, to comply with the purposes” of sentencing208—the
overarching principle of federal sentencing in the post-Booker era. As
for slamming judges that dare to express policy disagreements as
“judicial activists,”209 the same could be said for judges who never or
almost never vary and blindly apply the guidelines without truly,
meaningfully, and independently using the § 3553(a) factors as
required by Booker and its progeny. Finally, Judge Fisher’s view of
the role of district court judges in sentencing is completely at odds
with the subsequent U.S. Supreme Court decision in Kimbrough.
Judge Fisher proclaims “allowing full judicial discretion would put
policy decisions, which are best made by the legislature, into the
wrong hands.”210 Of course, nothing in Kimbrough, Spears, or Pepper
compels a district court judge to adopt a policy disagreement with
any guideline or policy statement. We would, however, shirk our
constitutional obligation and our oath of office if we did not in good
faith undertake a careful and thoughtful review when a policy

203. Id. at 94.
204. See 2013 SOURCEBOOK, supra note 177, at tbl.13.
205. Fisher, supra note 20, at 98.
206. Id. at 94.
207. Judge Fisher is certainly not alone with this view. Anecdotally, I have often
heard my federal colleagues express similar views. Some have even suggested they
stretch to do departures, rather than variances, because departures are not reported to
the Commission as an out-of-guideline sentence.
208. 18 U.S.C. § 3553(a) (2006).
209. For a thorough discussion of the origin and historical use of the phrase
“judicial activism” see generally Keenan D. Kmiec, The Origin and Current Meaning of
“Judicial Activism,” 92 CALIF. L. REV. 1441 (2004).
210. Fisher, supra note 20, at 87.

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disagreement is raised. The same is true of variance requests by the
prosecution and defense pursuant to the § 3553(a) factors. Indeed, we
have an independent obligation, sua sponte, to carefully and
thoughtfully review potential upward or downward variances
pursuant to the § 3553(a) factors. We assume this obligation, in part,
because the U.S. Supreme Court has clearly mandated “the
sentencing court does not enjoy the benefit of a legal presumption
that the Guidelines sentence should apply.”211 Moreover, Judge
Fisher urging sentencing judges to give greater deference to the
Commission and Congress than Booker and its progeny suggest, runs
afoul of Justice Souter’s concerns that the “now-discretionary
Guidelines” will have too strong of a “gravitational pull” towards
them and raise the same constitutional problems that caused the
Court to find the mandatory guidelines unconstitutional.212
In contrast, Judge Thomas M. Hardiman’s law review article
benefited from the intervening U.S. Supreme Court decisions in both
Kimbrough and Spears and several courts of appeals’s decisions
offering divergent views on the scope and standards for policy
variances in contexts other than the crack/powder disparity.213 Judge
Hardiman suggests that courts examining policy disagreements with
specific guidelines look at the following questions:
In making this inquiry, courts must consider the Guideline’s origin
and its subsequent history. When was it adopted? Did the
Commission extrapolate the Guideline from statutes and, if it did,
was there sound reason for doing so (as the Court found there was
not in Kimbrough)? Or did the Commission model the Guideline on
findings from empirical study? What was the role of Congress? How
specifically did Congress direct or guide the Commission’s creation
of the Guideline? Did Congress change the Guideline itself? What
was the Commission’s reaction to congressional input?214

After listing these questions Judge Hardiman concluded, “It
bears noting that although the Commission need not have expressed
reservations about a Guideline for a court to find it objectionable on
policy grounds, courts of appeals and the Supreme Court have upheld
categorical variances more often when the Commission has done
so.”215 I do not believe this is accurate regarding the U.S. Supreme
Court. The only authority for the U.S. Supreme Court cited by Judge
Hardiman is Kimbrough, where he is correct.216 I know of no case
where the U.S. Supreme Court has addressed the question of a policy
disagreement with a specific guideline and rejected it, even in part,
211.
212.
213.
214.
215.
216.

Rita v. United States, 551 U.S. 338, 351 (2007).
Id. at 390 (Souter, J., dissenting).
Hardiman & Heppner, supra note 20, at 14-34.
Id. at 33.
Id.
Id. at 33 n.185.

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because the Commission had not expressed reservations about the
guideline. Indeed, in Pepper, the Commission had never expressed
reservations about its policy statement prohibiting consideration of
post-sentencing rehabilitation in USSG § 5K2.19—yet the U.S.
Supreme Court affirmed my right and the right of judges in the
future to vary on that ground.217 It was simply enough for the Court
that “the Commission’s views rest on wholly unconvincing policy
rationales not reflected in the sentencing statutes Congress
enacted.”218 Judge Hardiman also wondered if policy disagreements
with the guidelines would be extended by the U.S. Supreme Court
beyond the crack/powder guidelines in Kimbrough and Spears. While
the U.S Supreme Court’s decision in Pepper suggests that question is
answered in the affirmative, the courts of appeals also tend to
support the view that sentencing judges are free to assert policy
disagreements with a broad array of guidelines.219
217. Pepper v. United States, 131 S. Ct. 1229, 1247-48 (2011).
218. Id. at 1247.
219. See, e.g., United States v. Engle, 592 F.3d 495, 502 (4th Cir. 2010) (noting in a
tax evasion case: “We recognize that in the post-Booker sentencing world, district
courts must give due consideration to relevant policy statements, but those policy
statements are no more binding than any other part of the Guidelines. Accordingly,
district courts may ‘vary from Guidelines ranges based solely on policy considerations,
including disagreements with the Guidelines.’” (quoting Kimbrough v. United States,
552 U.S. 85, 101 (2007))); United States v. Lychock, 578 F.3d 214, 219 (3d Cir. 2009)
(implicitly recognizing that district courts may have policy disagreements with child
pornography guidelines, but reversing a below-guidelines sentence and remanding the
case because the district court failed to “offer a reasoned explanation for its apparent
disagreement with the policy judgments of Congress regarding the appropriate
sentences for child pornography offenses”); United States v. Cavera, 550 F.3d 180, 191
(2d Cir. 2008) (en banc) (noting in a federal gun trafficking case: “As the Supreme
Court strongly suggested in Kimbrough, a district court may vary from the Guidelines
range based solely on a policy disagreement with the Guidelines, even where that
disagreement applies to a wide class of offenders or offenses.”); United States v.
Rodriguez, 527 F.3d 221, 227 (1st Cir. 2008) (noting in a case about fast-track
disparity: “[T]he Kimbrough Court’s enlargement of a sentencing court’s capacity to
factor into the sentencing calculus its policy disagreements with the guidelines . . .
makes plain that a sentencing court can deviate from the guidelines based on general
policy considerations.” (citation omitted)); id. at 231 (“Kimbrough makes manifest that
sentencing courts possess sufficient discretion under section 3553(a) to consider
requests for variant sentences premised on disagreements with the manner in which
the sentencing guidelines operate.”); see also United States v. Gonzalez-Mendez, 545 F.
App’x 848, 850 (11th Cir. 2013) (noting in an illegal reentry case: “[Defendant]
correctly argues that the district court could categorically disagree with the
Sentencing Guidelines” related to illegal reentry); United States v. Youngblood, 542 F.
App’x 841, 843-44 (11th Cir. 2013) (per curiam) (noting in a crack cocaine case:
“Although Kimbrough and Spears held, at most, that a district court may vary from a
guidelines range where it disagrees with a particular guideline, application of this
principle necessarily requires that the district court actually disagree with the
guideline at issue.”); United States v. Jackman, 512 F. App’x 750, 753 (10th Cir. 2013)
(citing with approval United States v. Henderson, 649 F.3d 955 (9th Cir. 2011)) (noting
in a child pornography case: “In Kimbrough v. United States, the Supreme Court held

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a district court has the discretion to vary from the recommended guideline range
where the court determines such range is greater than necessary to achieve the
sentencing objectives of § 3553(a). Such a decision to vary may be based on a
categorical disagreement with the applicable guideline apart from individualized
consideration of § 3553(a)’s sentencing factors. A district court that fails to recognize
its discretion to vary from the guideline range based on such disagreement with a
guideline may commit procedural error.” (citations omitted)); United States v. LopezMacias, 661 F.3d 485, 491 (10th Cir. 2011) (noting in an illegal reentry case: “[W]e
conclude that Kimbrough’s holding extends to a policy disagreement with Guideline §
5K3.1 . . . .”); United States v. Boneshirt, 662 F.3d 509, 518 (8th Cir. 2011) (noting in
murder case involving an Indian reservation: “We have recognized that, under the
Supreme Court’s decision in Spears v. United States, 555 U.S. 261, 129 S. Ct. 840,
843–44, 172 L.Ed.2d 596 (2009), a district court may reject a particular Guideline
based on a policy disagreement with that Guideline.”) (citing United States v.
Talamantes, 620 F.3d 901, 902 (8th Cir. 2010) (per curiam)); United States v.
Henderson, 649 F.3d 955, 960 (9th Cir. 2011) (noting that “Kimbrough’s rationale is
not limited to the crack-cocaine Guidelines” in finding that district courts could have
policy disagreements with child pornography guidelines); United States v.
Evanouskas, 386 F. App’x 882, 885 n.1 (11th Cir. 2010) (per curiam) (“Assuming
arguendo that the child pornography provisions are not based on empirical data,
Kimbrough v. United States, 552 U.S. 85, 109–10, 128 S. Ct. 558, 575, 169 L.Ed.2d 481
(2007), supports the proposition that a district court may consider a lack of empirical
basis as a reason to exercise its discretion to categorically disagree with a Guidelines
provision . . . .”); United States v. Corner, 598 F.3d 411, 415 (7th Cir. 2010) (noting
that “[w]e understand Kimbrough and Spears to mean that district judges are at
liberty to reject any Guideline on policy grounds—though they must act reasonably
when using that power” in finding that district courts may categorically disagree with
career offender guidelines); United States v. Mitchell, 624 F.3d 1023, 1030 (9th Cir.
2010) (“As the Supreme Court through Booker, Kimbrough, and Spears has instructed,
and as other circuits that have confronted the crack/powder variance in the sentence of
a career offender have accepted and clarified in their circuit law, sentencing judges can
reject any Sentencing Guideline, provided that the sentence imposed is reasonable.”);
United States v. Herrera-Zuniga, 571 F.3d 568, 583-84 (6th Cir. 2009) (“The question
we confront here is whether the authority recognized in Spears to reject on policy
grounds an otherwise-applicable aspect of the Sentencing Guidelines is limited to the
crack cocaine context. We hold that it is not.”) (footnote omitted); United States v.
Simmons, 568 F.3d 564, 569 (5th Cir. 2009) (“Kimbrough does not limit the relevance
of a district court’s policy disagreement with the Guidelines to the situations such as
the cocaine disparity and whatever might be considered similar.”); United States v.
Lente, 323 F. App’x 698, 712-13 (10th Cir. 2009) (Holmes, J., concurring) (“Although
Kimbrough arose in the crack-powder cocaine context, we have not questioned that its
holding concerning policy disagreements extends beyond that context . . . . And I see no
principled basis for such a restriction.”) (internal citation omitted), abrogated on other
grounds by United States v. Story, 635 F.3d 1241 (10th Cir. 2011); United States v.
Vandewege, 561 F.3d 608, 610 (6th Cir. 2009) (noting in a crack disparity case: “The
Supreme Court has made it clear that where a sentencing judge ‘varies from the
Guidelines . . . in a mine-run case’ based on a policy disagreement or consideration of §
3553 standards, ‘closer review may be in order.’” (quoting Kimbrough, 552 U.S. at
109)). But see Vandewege, 561 F.3d at 610 (Gibbons, J., concurring in the judgment)
(“Neither Kimbrough nor Spears authorized district courts to categorically reject the
policy judgments of the Sentencing Commission in areas outside of crack-cocaine
offenses, as the majority suggests.”); id. at 611 (Gibbons, J., concurring in the
judgment) (“Kimbrough has thus not ‘made it clear’ that district courts may vary from
the Guidelines based solely upon any policy disagreement.”); United States v.

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Judge Hardiman observed that defense lawyers will increasingly
raise policy disagreements to “every policy underlying every
challenged Guideline.”220 He then writes: “This enterprise runs the
risk of asking district judges to opine on broad policy questions as
they seek to impose just sentences . . . .”221 Judge Hardiman then
warns, as did his colleague, Judge Fisher before, that if policy
disagreements with the crack/powder and other guidelines become
the “norm” then “Congress might impose new, detailed statutory
penalties that will leave district judges with even less discretion than
they possessed in the mandatory Guidelines era.”222 While there may
be some truth to his declaration, I assert that this is exactly the type
of impermissible consideration for sentencing judges that deeply
troubled the Sixth Circuit in Kamper.223 In my view, district court
judges should sentence as the U.S. Supreme Court has commanded:
“hear arguments by [the] prosecution or defense that the Guidelines
sentence should not apply . . . because . . . the Guidelines sentence
itself fails properly to reflect § 3553(a) considerations.”224 No more or
less.
VI. THE CRESTING POINT
Predicting a cresting point for the arc of federal mass
incarceration is no easy task. But it will not likely come from federal
judges through significantly greater “Kimbrough justice.” While more
judges may find “policy disagreements” with the drug guidelines,
most judges seem far too wedded to the guidelines for this to have
any significant effect on federal mass incarceration. The more recent
appointees, even if they did federal criminal justice work in their
careers, likely know nothing but the guidelines. More critically, even
for federal judges trying to do more “Kimbrough justice,” downward
variances are frequently trumped by mandatory minimum drug
Wellman, 716 F. Supp. 2d 447, 451 (S.D. W. Va. 2010) (“[N]o authority binding on this
Court has determined that a district court may vary from any other guideline [besides
the crack cocaine Guidelines] based solely on policy disagreements with them.”); id. at
451 n.7 (recognizing that “[t]hough no case decided by the Supreme Court has
determined that sentencing courts may vary from Guidelines other than crack cocaine
Guidelines based on categorical, policy-based disagreements with the Guidelines, the
Fourth Circuit has implied that they may.”). Research did not disclose an applicable
case from the D.C. Circuit.
220. Hardiman & Heppner, supra note 20, at 34.
221. Id.
222. Id.
223. See United States v. Kamper, 748 F.3d. 728, 743 (6th Cir. 2014) (“We have held
that, when a district judge explicitly acknowledges his authority to vary but also
makes ‘remarks about the proper role of courts [that] reveal his belief that a policy
disagreement is not a proper basis for a judge to vary,’ the resulting sentence is
procedurally unreasonable.” (quoting United States v. Johnson, 407 Fed. App’x 8, 10
(6th Cir. 2010))).
224. Rita v. United States, 551 U.S. 338, 351 (2007).

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sentences.
Thus, long term prospects of reducing federal mass incarceration
likely will depend on the ability of Congress to repeal the mandatory
minimums or at least reduce their harsh impact on so many
offenders. It will also depend on the ability of the Commission to
lessen the harsh impact of the drug trafficking guidelines. Strong
winds of change are undeniably blowing in Washington, D.C.
Whether it is more hot air in the nation’s capital or a harbinger of
real significant change is yet unknown. On April 10, 2014, the
Commission voted unanimously to approve an amendment to the
guidelines “to lower the base offense levels in the Drug Quantity
Table across drug types.”225 “If Congress does not act to disapprove”
this amendment, it “will go into effect November 1, 2014.”226 The socalled All Drugs Minus Two amendment “drew more than 20,000
letters during a public comment period, including letters from
members of Congress, judges, advocacy organizations, and
individuals.”227 Chief Judge Patti B. Saris, Chair of the Commission,
and one of the most influential individuals on federal sentencing in
the nation, noted in her published remarks for the Commission
public meeting on April 10:
Reducing the federal prison population has become urgent, with
that population almost three times where it was in 1991. Federal
prisons are 32% overcapacity, and federal prison spending exceeds
$6 billion a year, making up more than a quarter of the budget of
the entire Department of Justice and reducing the resources
available for federal prosecutors and law enforcement, aid to state
and local law enforcement, crime victim services, and crime
prevention programs – all of which promote public safety.228

Why did it take the Commission so long? The Commission could
have accomplished the identical reduction in the All Drugs Minus
Two amendment on the day the original drug guidelines became law
on November 1, 1987, or at any time after that. It took the
Commission nearly 30 years to do this.
Moving from the Commission to Congress—there is even greater
hope for more significant changes, especially to the brutal mandatory
minimum regime that has fueled mass incarceration since the

225. Press Release, U.S. Sentencing Comm’n, U.S. Sentencing Comm’n Votes to
Reduce
Drug
Trafficking
Sentences
(Apr.
10,
2014),
available
at
http://www.ussc.gov/sites/default/files/pdf/news/press-releases-and-newsadvisories/press-releases/20140410_Press_Release.pdf.
226. Id.
227. Id.
228. Chief Judge Patti B. Saris, Chair, U.S. Sentencing Comm’n, Remarks for
Public
Meeting
(April
10,
2014),
http://www.ussc.gov/sites/default/files/pdf/amendment-process/public-hearings-andmeetings/20140410/Chairs-Remarks.pdf.

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passage of the ADAA of 1986. On August 1, 2013, U.S. Senators Dick
Durbin and Mike Lee introduced the bi-partisan Smarter Sentencing
Act of 2013.229 Senator Lee declared: “Our current scheme of
mandatory minimum sentences is irrational and wasteful.”230
Senator Durbin stated:
Mandatory minimum sentences for non-violent drug offenses have
played a huge role in the explosion of the U.S. prison population.
Once seen as a strong deterrent, these mandatory sentences have
too often been unfair, fiscally irresponsible and a threat to public
safety. Given tight budgets and overcrowded prison cells, judges
should be given the authority to conduct an individualized review
in sentencing certain drug offenders and not be bound to outdated
laws that have proven not to work and cost taxpayers billions.231

The Smarter Sentencing Act (S.1410) passed the Senate
Judiciary Committee on January 30, 2014.232 It would expand the
“safety valve” in 18 U.S.C § 3553(f); allow 8,800 federal prisoners
convicted of crack cocaine offenses, 87% of whom are black, to seek
retroactive application of the FSA; reduce drug mandatory minimum
sentences from 20, 10, and 5 years to 10, 5, and 2 years—saving
billions of dollars on incarcerating non-violent drug offenders; and, to
protect public safety, impose new mandatory minimum sentences for
sexual abuse and terrorism offenses.233 When highly regarded
lawyer-Senators like Durbin and Lee, both on the Senate Judiciary
Committee, with widely acknowledged incredibly diverging
philosophies on most issues of U.S. Senate concern, come together to
sponsor The Smarter Sentencing Act of 2013—hopes are raised for
significant reform.
Several other important mass incarceration reform bills have
also been introduced in Congress. There is a House companion bill to
The Smarter Sentencing Act, H.R. 3382, which was introduced by
Representatives Raul Labrador (R-ID) and Bobby Scott, (D-VA)).234

229. Press Release, Durbin and Lee Introduce Smarter Sentencing Act, Bill
Modernizes Drug Sentencing Policy, Focuses Resources on Violent Offenders and
Public Safety Risks, Promotes Consistency with Fair Sentencing Act (Aug. 1, 2013),
http://durbin.senate.gov/public/index.cfm/pressreleases (use “Jump to month”
application for press releases from August 2013; then follow “Durbin and Lee
Introduce Smarter Sentencing Act” hyperlink).
230. Id.
231. Id.
232. The Smarter Sentencing Act of 2013, S.1410, 113th Cong. (2013); S.1410 –
Smarter
Sentencing
Act
of
2014,
CONGRESS.GOV,
https://beta.congress.gov/bill/113th-congress/senate-bill/1410/all-actions (last visited
Oct. 14, 2014).
233. The Smarter Sentencing Act of 2013, S.1410, 113th Cong. (2013); S.1410, The
Smarter Sentencing Act, FAMM, http://famm.org/s-1410-the-smarter-sentencing-act/
(last visited Sept. 10, 2014)..
234. The Smarter Sentencing Act of 2013, H.R. 3382, 113th Cong. (2013).

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The Justice Safety Valve Act of 2013,235 S. 619, 113th Cong. (2013–
2014), bipartisan legislation, was introduced by Senator Rand Paul
(R-KY) and Senate Judiciary Committee Chairman Patrick Leahy
(D-VT) and, in the House, a companion bill was introduced by
Representatives Robert C. “Bobby” Scott (D-VA) and Thomas Massie
(R- KY).236 These bills propose a broad “safety valve” that applies to
all federal crimes carrying mandatory minimum sentences. If passed,
the Justice Safety Valve Act would allow judges to sentence federal
offenders below the mandatory minimum sentence whenever the
mandatory minimum does not promote the goals of punishment and
other sentencing criteria listed at 18 U.S.C. § 3553(a).237
The Recidivism Reduction and Public Safety Act of 2013, is
bipartisan legislation introduced by Senators Portman (R-OH) and
Whitehouse (D-RI) which allows federal inmates to earn seven days
more “good time credit” each year for good behavior and obeying
prison rules.238 This is a technical fix to 18 U.S.C. § 3624(b), which
the U.S. Supreme Court has interpreted to limit good time credit to
47 days per year, not the 54 days of credit most believe Congress
intended.239 The Act also allows federal inmates to earn up to 60 days
off their sentences for each year they participate in recidivism
reduction or recovery programs, in addition to their good time
credits.240 Finally, the Act gives the Bureau of Prisons 3 years to
ensure that all prisoners in need of the Residential Drug Abuse
Program enter the program in sufficient time to finish it and receive
the full one-year sentence credit off their sentence for completion of
the program.241
Perhaps the strongest national force for reversing and reducing
this nation’s mass incarceration crisis has been the chief law
enforcement officer in the country—U.S. Attorney General Eric H.
Holder, Jr. In written comments to the Commission submitted on
March 6, 2014, the U.S. Department of Justice made clear in
supporting the All Drugs Minus Two amendment:
That “such extensive use of imprisonment as our first line of
defense against crime is unsustainable.”242

235. The Justice Safety Valve Act of 2013, S. 619, 113th Cong. (2013-2014).
236. The Justice Safety Valve Act of 2013, H.R. 1695, 113th Cong. (2013-2014).
237. S. 619; H.R. 1695.
238. Recidivism Reduction and Public Safety Act of 2013, S. 1675, 113th Cong.
(2013-2014).
239. See Barber v. Thomas, 560 U.S. 474, 480-83 (2010) (agreeing with the Bureau
of Prison’s method of calculating good time credit based on time served rather than
time sentenced).
240. S. 1675, 113th Cong. § 2 (2013-2014).
241. Id. at §§ 3, 5.
242. Letter from Jonathan J. Wroblewski, Director, Office of Policy and Legislation,
U.S. Dep’t of Justice, to Hon. Patti B. Saris, Chair, U.S. Sentencing Comm’n 16 (Mar.

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That “[s]tate and federal governments spent a combined $80 billion
on incarceration in 2010 alone.” 243
That “[p]rison overcrowding and insufficient investment in effective
reentry programming must both change if we are to continue to
push crime rates lower.”244
“Of the more than 216,000 federal inmates currently behind bars,
almost half are serving time for drug-related crimes.”245
That “strategically revising the ways in which we address this
particular group of offenders—maintaining strong penalties but
reserving the longest ones for repeat and dangerous drug
offenders—will measurably improve our overburdened system.”246
That “socioeconomic realities of life after prison have had
particularly devastating effects on disadvantaged populations and
communities of color. This has only helped to perpetuate the cycle
of poverty, criminality, and incarceration that has isolated such
individuals from the prospects of upward mobility.”247
That in August of 2013 Attorney General Holder “announced his
‘Smart on Crime’ initiative, which among other things changed the
Department’s charging policies to ensure people accused of certain
low-level federal drug crimes will face sentences appropriate to
their individual conduct while reserving more stringent mandatory
minimum sentences for the most serious offenders.”248

A week later, following the above written comments to the
Commission, Attorney General Holder’s testimony before the
Commission on March 13, 2014, expressed his view that the
Department of Justice strongly supported the All Drugs Minus Two
proposed amendment to the drug guidelines.249 Attorney General
Holder indicated that this amendment would “send a strong message
about fairness of our criminal justice system;” would “help to reign
[sic] in federal prison spending;” would “further our ongoing effort to
advance common sense criminal justice reforms;” and “would deepen
the Department’s work to make the federal criminal justice system
both more effective and more efficient.”250
6,
2014),
available
at
http://www.ussc.gov/sites/default/files/pdf/amendmentprocess/public-comment/20140326/public-comment-DOJ.pdf.
243. Id.
244. Id.
245. Id. at 17.
246. Id.
247. Id.
248. Id.
249. Eric H. Holder, Attorney General, Transcript of Public Hearing before the U.S.
Sentencing Comm’n on Proposed Amendments to the Federal Sentencing Guidelines at
12-13
(Mar.
13,
2014),
available
at
http:/www.ussc.gov/
sites/default/files/pdf/amendment-process/public-hearing-and-meetings/20140313/
transcript.pdf.
250. Id. at 13-14.

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Attorney General Holder also testified that drug cases “result in
too many Americans going to prison for too long, and at times, for no
truly good law enforcement reason.”251 He reiterated that while “the
United States comprises just [five] percent of the world’s population,
we incarcerate almost a [quarter] of the world’s prisoners” and that
“[o]ne in twenty-eight American children currently has a parent
behind bars.”252
Attorney General Holder also endorsed moving forward with
other reforms to reduce mass incarceration. These include supporting
pending legislation to give federal judges more discretion to
determine appropriate sentences, evidence based diversion programs,
and reducing “unnecessary collateral consequences for formerly
incarcerated individuals seeking to rejoin their communities.”253
Attorney General Holder also reinforced his commitment to
changing charging policies in drug trafficking cases, a key component
of his August 2013 announcement of his new Smart on Crime
Initiative.254 Attorney General Holder testified that:
Now, among the key changes that I mandated as part of this
initiative is a modification of the Justice Department’s charging
policies to ensure that people convicted of certain low-level, nonviolent, federal drug crimes will face sentences appropriate to their
individual conduct, rather than stringent mandatory minimums,
which will now be applied only to the most serious criminals.255

The change in the Department of Justice charging policies in
drug trafficking cases, although recent, has the potential to do more
to reduce mass incarceration by the federal courts than any other
single current action. However, there has been no transparency as to
its implementation, public disclosure of implementing policies or
guidelines, or methods used to uniformly apply the charging
policies.256 Will this reform suffer the same fate of irrational
application as the Department’s Section 851 enhancements? More
importantly, because it can change at the whim of the Attorney
General or a new Attorney General, will it have significant long term
staying power? Short of Congress modifying the harsh impact of the
current mandatory minimum regime that has reigned since the
passage of the ADAA of 1986, will this charging change have a
significant and lasting impact on reducing federal mass
incarceration?

251.
252.
253.
254.
255.
256.

Id. at 14.
Id. at 14 -15.
Id. at 19.
Id. at 16-17.
Id. at 17.
See Osler & Bennett, supra note 4, at 163-77.

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VII. CONCLUSION
There is no conclusion. There are no conclusions. There are only
questions. Are we truly at a cresting point in the nation’s quest for
mass incarceration? Will the growing public forces against mass
incarceration influence the decision makers? Will the rising cost of
mass incarceration lead to its reduction? Will Congress act to reduce
mass incarceration? Will Congress reduce the harshness of our
current mandatory minimum regime? Will Congress expand the
application of the “safety valve”? Will Congress fund drug re-entry
programs? Will Congress fund more drug treatment programs? Will
the Commission do more to lessen the harshness of the guidelines?
Will federal judges exercise more “Kimbrough justice?” Will federal
judges exercise more discretion under the Section 3553(a) factors?
Will there be a “legislative backlash” to federal judges doing
“Kimbrough justice” and variances under the Section 3553(a) factors?
Will the Attorney General’s efforts to reform mass incarceration
succeed? Will future Attorney Generals follow the path blazed by
Attorney General Holder or reverse course? Will the efforts to reduce
mass incarceration endanger public safety?