The 'ecstacy' case of drug abuse

These were the facts: Seven years ago, Brian Michael Gall was a second-year student at the University of Iowa. He was then 20 years old. Justice John Paul Stevens explains:

"In February or March 2000, petitioner Gall joined an ongoing enterprise distributing a controlled substance popularly known as 'ecstasy.' He was then a user of ecstasy, cocaine and marijuana. During the ensuing seven months, Gall delivered ecstasy pills to other conspirators, who then sold them to consumers. He netted over $30,000."


Then young Gall had second thoughts: He stopped using ecstasy. He withdrew from the conspiracy.

Justice Stevens: "He has not sold illegal drugs of any kind since. He has, in the words of the District Court, 'self-rehabilitated.' He was graduated from the University of Iowa in 2002, and moved first to Arizona, where he obtained a job in the construction industry, and later to Colorado, where he earned $18 per hour as a master carpenter. He has not used any illegal drugs since graduating from college."

The evil that men do lives after they reform. Federal agents tracked Gall down. He freely admitted his former involvement in distribution of ecstasy. In April 2004, a grand jury indicted him with seven others for conspiracy to distribute illegal substances. He moved back to Iowa, surrendered to authorities, and started his own small construction business while he was out on bail. He was earning a modest $24,000 a year.

Gall accepted a plea agreement with the government in which federal authorities acknowledged that he had not played any recent role in drug traffic. A probation officer first agreed that the young man had turned his life around, but then concluded that his testimony was not really critical to the government's case. The officer suggested a prison term of about three years.

The trial court held a sentencing hearing in May 2005. It produced, in Justice Stevens' account, a "small flood" of letters from Gall's friends, his parents, his fiancee and his business associates, "uniformly praising his character and work ethic." The U.S. attorney was only moderately impressed: He seconded the probation officer's proposal. The sentencing "guidelines" would thus be served.

The district judge had a better idea of what to do with Gall: He concluded that any term of imprisonment "would be counter-effective." Clearly, Gall "understands the consequences of his criminal conduct and is doing everything in his power to start a new life." Thus the defendant had earned his freedom — but under strict probation: No alcohol, no drugs, no significant changes in residence or employment without permission from his parole officer. If Gall violates the terms of his probation, he will face "harsh consequences."

Differences of opinion are the mark of poker hands, buy orders and appellate jurisdiction. The 8th Circuit, in slavish obedience to the sentencing guidelines, reversed the trial court's reasoned judgment. Now Justice Stevens' opinion again sets Brian Gall free, but back under strict probation.

The Supremes should have stopped with simple reversal and said no more. Regrettably, Stevens was in his garrulous mode.

As I read Stevens' opinion for the court, the famous — or infamous — sentencing guidelines are still operative, so to speak, most of the time, more or less, whatever, it all depends. Let us be clear: Lower courts must determine sentences ipso facto and e pluribus unum, but with regard to the rule of post hoc, ergo propter hoc. It is true that omnia gallia is still in tres partes divisi. Ergo, prison sentences must be not only "substantively reasonable" but also reasonably substantive. Generally speaking, or speaking generally, appellate courts must affirm the sentences imposed by trial judges, or at least must give "due deference" to the trial courts, unless the totality of circumstances indicates a justifiable deviation. The guidelines on third Mondays are substantially the same.

Justice Clarence Thomas filed one crisp sentence in dissent. Justice Samuel Alito dissented at much greater length. They thought the court should stick to its guidelines, willy-nilly, right or wrong, let the kid rot, redemption is for sissies, next case! As a reporter, I do love to cover this crowd.

(Letters to Mr. Kilpatrick should be sent by email to kilpatjj@aol.com.)

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