Laying Down the Law

With the help of two students, a Baylor law professor made legal history. Mark Osler, a criminal and appellate law instructor at Baylor since 2000, and the lawyers-to-be were involved in appealing two key cases to the United States Supreme Court.

At stake was an injustice Osler had witnessed firsthand. While serving as a prosecutor in Detroit from 1995 to 2000, Osler realized there was a problem with sentencing guidelines that required a more severe punishment, based on a possession ratio of 100:1, for criminals caught with crack cocaine than for those arrested with powder.

"The thing that bothered me most was that it creates a law-enforcement incentive to get the lowest-level dealers," Osler said. He was also aware that the guidelines had no scientific basis to indicate that crack was more dangerous than powder. The guidelines were created, he said, in a political knee-jerk reaction to a high-profile case.

When Osler joined the Baylor law faculty, he began writing academically about the crack-powder ratio and arguing that judges should have the discretion not to follow the guidelines. In 2005, the Supreme Court said the guidelines were "advisory," Osler said, but several subsequent court rulings indicated that sentencing still had to follow the 100:1 ratio.

So Osler became involved in a string of appellate cases, writing amicus curiae—"friend of the court"—briefs on a pro bono basis to argue that judges should have more sentencing leeway.

"One day in sentencing class, Professor Osler asked if anyone would help him with some research, and I volunteered," said Dustin Benham, a 2006 law graduate who is now working at the Brown Law Firm in Dallas. "After we'd finish one case, he'd e-mail and ask, 'Do you want to work on the next one?'"

At first, things didn't go so well. Osler recounted, "We lost in Boston, we lost in New York, we lost in Philadelphia, we lost in San Francisco, and we lost in Omaha, which is the Eighth Circuit." The San Francisco and Omaha arguments were on back-to-back days, so Benham flew to Omaha to help Osler prepare for the argument.

The Omaha case, Spears v. United States, was at least a split decision, so they decided to appeal to the Supreme Court. Meanwhile, a similar case was already there. The case of Kimbrough v. United States also dealt with the crack-powder sentencing guidelines, and Osler and another Baylor student, Matt Acosta, JD '08, had written an amicus brief for that case at the request of the National Association of Federal Defenders. "They are a tough client," Osler said, "because they are all Supreme Court lawyers themselves. I asked Matt to draft a section of the brief, thinking I'd rewrite it, but it was so good, there was no need. And the clients, although they changed a lot of things I wrote, left Matt's the way it was."

When the Kimbrough case was argued before the Supreme Court, Osler took both Acosta and Benham with him to listen. The Supreme Court later ruled in the defendant's favor in the Kimbrough case. In the Spears case, the Court decided without hearing arguments to send it back to the Eighth Circuit for reconsideration. When the appellate court repeated its earlier decision, Osler and company appealed again. This time, the Supreme Court reversed the decision and made it clear that sentencing guidelines had now changed.