A Bad Day for Drug Warriors at the Supreme Court

In three cases decided today, the Supreme Court sided with criminal defendants convicted for drug-related crimes. But warning to readers: Drugs are still illegal, so don't start taking your bong hits (4 Jesus or anyone else) just yet. Here's my summary:

1) In Watson v. United States, the Court held that someone who receives a gun in exchange for drugs (here OxyContin) does not thereby illegally "use" a firearm during and in relation to a drug trafficking offense. Justice Souter so wrote for the Court despite the fact that in an earlier case, Smith v. United States (1993), the Court had held what in Watson it termed the converse: that someone who trades a gun for drugs does thereby use the gun. This distinction reminds me of nothing so much as the argument that when Monica Lewinsky performed oral sex on Bill Clinton, she had sex but he didn't.

2) In Kimbrough v. United States, the Court held that a district judge is entitled to depart downward from the (now just advisory) Federal Sentencing Guidelines' sentencing range for crack cocaine on the ground that the 100/1 ratio of severity/weight assigned by the Guidelines for crack and powder cocaine respectively is disproportionate. For years, the disparity has been criticized and the Sentencing Comm'n itself has tried to do away with it, only to be stymied by Congress. In Kimbrough, that very fact was used by Justice Ginsburg as a reason to justify denying the Guidelines the deference to which they might otherwise be entitled.

3) In Gall v. United States, the Court, per Justice Stevens, reversed an Eighth Circuit ruling that had invalidated a sentence outside the Guidelines range---probation rather than 3 years in prison for a college student convicted of conspiring to distribute ecstasy but withdrew from the conspiracy before selling any---on the ground that the departure wasn't justified by extraordinary circumstances.

Notably, in Kimbrough and Gall, the only party poopers to vote for the harsher sentences were Justices Thomas and Alito.

Posted by Mike Dorf