Washington Post: Supremo busca mayor uniformidad en sentencias de delitos por drogas

Court Revisits Sentencing Guidelines
Increased Penalties for Crack Cocaine Disproportionately Affect Blacks

By Robert Barnes
The Supreme Court yesterday struggled with how to give judges discretion in imposing sentences while still maintaining guidelines that seek to minimize disparities in justice.
The arguments received special attention because they marked the first time the court has considered Congress's 1986 decision to punish users and suppliers of crack cocaine more severely than those involved with powder cocaine.

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The "100 to 1" disparity -- trafficking in 5 grams of crack cocaine triggers a mandatory five-year sentence, the same punishment imposed for 500 grams of powder cocaine -- results in higher sentences for African Americans, who are more likely to use that form of the drug, than for whites and Hispanics, who are more likely to use powder cocaine.

The larger question of judicial discretion is a quandary that is partly of the court's own creation, as the justices ruled in 2005 that federal sentencing guidelines must be advisory, not mandatory. Since then, federal appeals courts have sought to come up with standards for reviewing sentences that stray from what the guidelines recommend.

"What are the words that should be written, in your opinion, by this court that will lead to considerable discretion on part of the district judge but not totally, not to the point where the uniformity goal is easily destroyed?" Justice Stephen G. Breyer asked one of the lawyers arguing the cases.

After two hours of arguments, such a standard seemed elusive.
The crack case involves Congress's decision, in response to a rising crack epidemic and the death of University of Maryland basketball star Len Bias, to impose dissimilar treatment for the drugs in 1986.

Derrick Kimbrough, a Gulf War veteran and construction worker, was arrested in Norfolk with 56 grams of crack cocaine and 92.1 grams of powder cocaine, as well as with a firearm. Under the guidelines, Kimbrough faced a sentence 19 to 22 1/2 years, driven by the increased penalties for crack.

Kimbrough's lawyer noted repeated calls from the U.S. Sentencing Commission to reduce the disparity, and U.S. District Judge Raymond A. Jackson agreed, labeling the longer sentence "ridiculous." He sentenced Kimbrough to 15 years, which he said was "long enough."
But the U.S. Court of Appeals for the 4th Circuit reversed that decision.

"Judge Jackson did it right in this case," said Michael Nachmanoff, a federal public defender from Alexandria who represents Kimbrough. He said the sentence honors Congress's intent but creates a just punishment.

But Deputy Solicitor General Michael R. Dreeben said the judge substituted his judgment for Congress's intent and that was a "textbook example of an unreasonable sentencing factor."
It appears that the crack cocaine sentencing guidelines will change regardless of the court's decision. The Sentencing Commission voted in April to reduce the federal minimum sentence for crack, a decision that will go into effect Nov. 1 unless Congress intervenes.

Another sentencing case involves Brian Michael Gall, a former dealer of the drug ecstasy who quit the business and had established a different life by the time he was arrested. A judge gave him probation instead of the three-year prison term called for in the sentencing guidelines.
An appeals court overturned the sentence, saying such an "extraordinary reduction must be supported by extraordinary circumstances."

The cases are Kimbrough v. United States (06-6330) and Gall v. United States (06-7949).

The Wall Street Journal: Demanda por inversiones en "subprime mortgages"

Prudential Sues State Street Over Losses
Move Shows RisksIndividual InvestorsFace in Credit Mess

By GARY PUTKA
A unit of Prudential Financial Inc. sued State Street Corp. subsidiaries over $80 million in losses ascribed to "undisclosed, highly leveraged" investments by State Street that included subprime mortgages.

Prudential said the losses were suffered in accounts held by 28,000 individuals in 165 retirement plans that it markets. These accounts held funds that were managed by State Street, a Boston bank and money manager.

Although Prudential, a big insurer based in Newark, N.J., said it would reimburse its clients for the $80 million they lost, the lawsuit showed that individual investors may be facing some hidden risks from the subprime meltdown in the form of retirement funds that are supposed to be safe, conservative choices.

Prudential said it had placed its clients in two State Street funds -- the Intermediate Bond Fund and the Government Credit Bond Fund -- that the Boston money manager had marketed as investments that would provide "stable, predictable returns" in line with an index of U.S. government and corporate bonds.

Instead, it said State Street changed its investment strategy over the summer without notification and devoted a large portion of the funds' investments into financial instruments that included "asset-based securities that overwhelmingly derived their value" from home-equity loans, mortgage-backed securities swaps, derivatives and other exotic fare. The suit said the bank recently informed Prudential it held a position in "a synthetic index whose returns are linked to 20 subprime U.S. mortgage pools."

Hannah Grove, a State Street spokeswoman, said the company was "extremely disappointed" by Prudential's actions and "we intend to vigorously defend ourselves. The recent market conditions and lack of liquidity were unprecedented," she said. "An unfortunate result of such market events is that some funds lost value."

State Street's shares came under pressure in late August when it disclosed to the Securities and Exchange Commission that it could face liabilities from off-balance-sheet "conduit" entities that it backs. At the time, the bank said the conduits, which also invest in securities backed by assets including mortgages, were sound and having no trouble financing their operations.

At the time, concern was also focused on State Street's management of bond and short-term debt funds that had taken sharp drops in value. One, the Limited Duration Bond Fund, appears to have been included in 401(k) retirement plans offered through State Street's Target Date Funds offerings. The other was the SSgA Yield Plus Fund, which had fallen 7.6% on the three months through the end of August.

Prudential said State Street's management of the funds named in the lawsuit misrepresented their investment strategy and exposed them to undue risk.
--Rachel Zimmerman contributed to this article.
Write to Gary Putka at gary.putka@wsj.com

The Wall Street Journal: Buhs veta proyecto de ley para expandir seguro médico infantil

Bush Vetoes Bill to ExpandChildren's Insurance Program

By SARAH LUECK
WASHINGTON -- President Bush issued the fourth veto of his presidency Wednesday, effectively blocking a bill that would increase funding for a children's health insurance program.
Democrats in Congress vowed to try to override the veto, though it appears unlikely that the House will have the necessary two-thirds support to do so. While House Democrats say they are within about 13 to 15 votes of being able to override the veto, top Republicans in the chamber say they are confident they will be able to stop the effort.

The House showdown is planned for the week after next, in part because Democrats want Senate Republicans to be present to help lobby their House colleagues. Next week, the Senate is on recess, so House Democrats are holding off until the lawmakers return. But, by all accounts, the vote will be one of several battles in a debate over CHIP that's expected to stretch until the end of the year.

The legislation Mr. Bush vetoed is the product of bipartisan negotiations in the Senate, though most Republicans in both chambers have opposed it. The bill would spend an additional $35 billion over five years on the Children's Health Insurance Program, in which the federal government provides capped grants to states to help cover low-income children. The new spending would be funded with an increase in the federal tobacco tax amounting to 61 cents per pack of cigarettes. The bill would phase out coverage of childless adults now covered in some states, and it would reduce funding available to states that include families with incomes over 300% of poverty, or about $60,000 a year for a family of four.

Mr. Bush and most House Republicans have criticized the bill for spending too much on subsidies for families that could be helped to by private coverage outside of the government program. House Republicans complained that they were left out of the negotiations on the legislation, and they and the White House said the veto will open a chance to revisit the specific provisions.
Still, opponents of the legislation have been at pains to say they are not against the children's health program, amid charges by Democrats that Republicans --and Mr. Bush in particular -- are insensitive to the health needs of low-income children. Groups affiliated with Democratic causes plan to drive that message home in coming days. MoveOn.org, along with labor groups, plan rallies in more than 200 congressional districts Thursday, to urge action on the legislation. The groups' message was clear in the headline of a press release from Americans United for Change shortly after the veto: "Bush Shafts Kids." (Health Blog: Kids' Health Advocates Vow to Fight Veto).

Democrats "made their political point" by sending Mr. Bush a bill they knew he would veto, said White House spokeswoman Dana Perino. "What the President said is, look, send me the bill, I will veto it, and then we will get about the business of trying to find some common ground and reach an agreement on a way forward."

For at least the next two months, however, there's little chance of a breakthrough between the two sides. Democrats show little interest in making big changes to a bill on which they already made huge compromises with Senate Republicans to get the bill to Mr. Bush's desk. And they see political advantages ahead of the 2008 elections in a drawn-out debate.

Plus, substantive policy differences remain. Mr. Bush has drawn his line for CHIP eligibility at 200% of the poverty level, or about $40,000 a year for a family of four, while the bill passed by Congress would allow states to receive funding for covering people at higher income levels, provided the federal government approves the plans. State flexibility to cover people at higher income levels has been part of CHIP since it was created 10 years ago, Democrats say. But now Mr. Bush sees a chance to regain the confidence of conservatives by tightening his views on spending. He and other Republicans say the program should be geared toward covering the poorest children first. Supporters of the legislation Mr. Bush vetoed said it would begin to do that.
Write to Sarah Lueck at sarah.lueck@wsj.com

Disponible en The Wall Street Journal