Pro Bono Work by Baylor Law Professor, Student and Graduate Impacts U.S. Supreme Court Cocaine Sentencing Case

December 13, 2007

Contact: Mark Osler, Professor of Law, Baylor Law School, Former Assistant United States Attorney, Detroit, (254) 710-4917

When the U.S. Supreme Court issued its ruling Monday, Dec. 10, in the case of Kimbrough v. United States - effectively giving more sentencing power to federal judges in cocaine cases - Baylor Law Professor Mark Osler, Baylor law student Matt Acosta and former Baylor law student Dustin Benham, now an associate with the large Dallas firm of Carrington, Coleman, Sloman & Blumenthal LLP, were overjoyed and felt some amount of vindication.

The three from Baylor Law School had a vested interest in the outcome of the case having worked on an Amici Curiae (friend of the court) brief in support of Kimbrough and on behalf of the Federal Public and Community Defenders and the National Association of Federal Defenders.

Kimbrough addresses whether a sentencing judge can vary from the guideline's 100:1 ratio between powder and crack cocaine simply because she disagrees with it. Osler, Benham and Acosta, along with appellate attorneys Brett Sweitzer and David McColgin of San Antonio, argued that a judge should have the ability to impose a sentence that fits the seriousness of possessing crack cocaine but should not have to adhere to the sentencing guidelines, which are often much longer sentences than the mandatory minimum sentence. In Kimbrough's case, the sentence imposed was 15 years, but the guidelines called for a 19-22 year sentence.

The Kimbrough case was not the only one that had raised this issue of a lower court judge not following sentencing guidelines. Osler had argued this very issue in five different cases in front of five U.S. Circuit Courts of Appeals: the 1st, 2nd, 3rd, 8th and 9th. Other cases also were heard by the other four Circuit Courts.

In all the cases, the circuit courts ruled against the lower court's sentencing. Benham, who was Osler's research assistant while in law school, got involved with the issue while helping with research on the case of Spears v. United States, a case nearly identical to the Kimbrough case and one that Osler argued in front of the 8th Court of Appeals. Osler and Denham lost their argument but petitioned for a Writ of Certiorari to the Supreme Court. (A Writ of Certiorari is a common law writ issued by a superior court to one of inferior jurisdiction demanding the record of a particular case.)

"By the time the Circuit Court issued an opinion, I was working in Dallas," Benham said. "It was frustrating that the court didn't find in our favor, but I told Professor Osler that he should take Spears up on certiorari. I work in the appellate section of Carrington, Coleman, and I had their full support to help with this pro bono. I wrote part of the certiorari and Professor Osler wrote another part."

Their petition ended up in conference, but the court granted certiorari in the Kimbrough case. However, since the Spears case focused on the same issues, the National Association of Federal Defenders approached Osler and Denham to write a "friend of the court" brief in support of the petitioner. That brief used many of the arguments put forth in Spears and it also featured some legal research and writing by Matt Acosta, who will graduate from Baylor Law School in February 2008. Acosta wrote the beginning section of the brief, which provided a summary of the argument, which examined the trial judge and what he did and why he sentenced the way he did.

Acosta knew nothing of the issue until Osler asked him to help with some of the writing. The professor soon instilled his passion for the issue in his student.

"I met with Professor Osler, who laid out the history of the issue to me," Acosta said. "I knew nothing about it until then. Once I started researching and writing, I became a believer in what we were trying to do. I really believe it was bad policy to begin with - very reactionary - but it is difficult for Congress to undo something they have set in motion.

"I enjoyed my work," he added. "It was collaborative, targeted and the preparation was immense. But it was inspiring, and made me realize that when something gets wrong in the rulebook, it gets very wrong."

Osler, Acosta and Benham traveled to Washington, D.C., to watch as the case was argued before the Supreme Court in early October.

"I felt hopeful when Chief Judge Roberts adopted one of our arguments - that if Congress wanted to mandate the 100:1 ratio, then it should do it through law and not inference," said Osler, who served as counsel of record in the "friend of the court" brief supporting the petitioner in Kimbrough. "This was the exact argument that we used in Spears and later incorporated into Kimbrough petitioner's brief.

"Also, in opinion, Justice Ginsburg employed one of our arguments that Congress's silence has meaning," Osler said.

Osler said it is important that law students participate in work at this level. "They need to learn to take the risk with the chance that they might look great or they might look terrible," he said. "I also was able to prove to some of my colleagues how prepared Baylor law students are and that they can work on this level."

Benham concurred. "Because Baylor is small, students can work closely with faculty as research assistants," he said. "You get to know the faculty and they employ very hands-on teaching methods. The writing and research skills I learned there got me the job I have now - one where I can get involved in pro bono work like this case. Helping with this case has been an experience of a lifetime and one I wouldn't have had without my Baylor education. I learned that although I am a young attorney that I can make a difference."

Also let no one think that although he has argued for years about the sentencing disparity that Osler is soft on crime. A former federal prosecutor, he handled a fair share of drug trafficking cases, including crack cocaine cases, while working in Detroit.

"I don't have a problem with sending people who deserve it to prison. What I have a problem with is that the sentencing scheme wasn't working," he said. "The person who deals crack is the last person on the food chain. We made tons of arrests, but we weren't affecting the supply chain at all."

In the latest news on the sentencing guidelines, Osler said the Sentencing Commission's unanimous vote on Dec. 11 will make the "new, more reasonable" crack guidelines retroactive.

"This change means that those who were sentenced under the old, harsher guidelines can be re-sentenced under the new standard," Osler said. "The new rule will go into effect on March 8, 2008. I suspect that the delay is to allow courts to get ready, for defense attorneys and others to identify those affected, and to allow time for Congress to decide whether or not they want to veto this decision."

Osler also took his impressions of the Kimbrough opinion to the well-known SCOTUSblog. His commentary on the "winners and losers" in Kimbrough is available at: