Pubdate: Tue, 08 Aug 2000
Source: Washington Times (DC)
Copyright: 2000 News World Communications, Inc.
Contact:  http://www.washtimes.com/
Author: Bruce Fein
Note: Bruce Fein is a lawyer and free-lance writer specializing in legal 
issues.
Related: http://www.mapinc.org/drugnews/v00/n1034/a02.html

SENTENCING REVOLUTION?

Amid this summer's sound and fury many people may have missed that the 
Supreme Court may have revolutionized criminal sentencing in a narrow and 
virtually ignored 5-4 ruling in Apprendi vs. New Jersey (June 26, 2000). It 
could prove every bit as unsettling as Miranda vs. Arizona (1966), which 
rewrote the constitutional book on police interrogations.

A fragile majority held that a New Jersey statute, which doubled the 
maximum sentence for unlawfully possessing and using a firearm (to 20 
years, from 10), violated the constitutional right to a jury trial and 
proof of guilt beyond a reasonable doubt.

The New Jersey law applied to those guilty of breaking a firearms law while 
acting on hate. A judicial ruling would determine if the defendant acted on 
hate.

The odd voting alignments in the Supreme Court's decision resembled mixing 
oil and water.

The media should have seen this and realized a dramatic decision had just 
been handed down. Liberal Justice John Paul Stevens wrote for the majority 
and was complimented in enthusiastic endorsements from conservative 
Justices Antonin Scalia and Clarence Thomas in their separate concurring 
opinions.

Robust dissents were quilled by less antipodal Justices Sandra Day O'Connor 
and Stephen Breyer. The Apprendi upheaval against customary sweeping 
judicial discretion in sentencing is reminiscent of the exchange between 
the dull King Louis XVI and the acute La Rochefoucald after the storming of 
the Bastille: Question, "Is it a revolt?" Answer, "No, Sire, it is a 
revolution."

Justice Stevens celebrated the right to jury trial and proof of wrongdoing 
beyond a reasonable doubt as cherished bulwarks against government 
oppression. At the time of the nation's founding, he noted, the criminal 
jury trials determined both facts necessary to establish an offense and 
aggravating circumstances that would justify a stiff sentence.

Pardons, not sentencing discretion, were employed to mitigate Rhadamanthine 
punishments.

He mystifyingly denied, however, that the Constitution's jury trial and 
reasonable doubt commands prohibited judicial sentencing discretion based 
on contested facts within a punishment range, which is established by the 
statute that defined the crime.

For instance, if the New Jersey firearms law declared that the judge should 
impose a sentence close to the maximum of 20 years upon a guilty verdict 
and a finding that the defendant acted with bigotry or hate, then it would 
not run afoul of the Constitution. Justice Stevens thus concluded 
unalarming to the status quo: "Other than the fact of a prior conviction 
[which has already been proved to a jury beyond a reasonable doubt], any 
fact that increases the penalty for a crime beyond the prescribed statutory 
maximum must be submitted to a jury and proved beyond a reasonable doubt."

If that were the whole story, Apprendi would be relatively inconsequential, 
like a pebble splashing into the ocean.

Congress and state legislatures could preserve sentencing discretion by 
prescribing for all crimes a punishment range from a small fine to life 
imprisonment accompanied by a specification of facts (e.g., commission of 
unindicted crimes or even charged crimes that occasioned not-guilty 
verdicts — wanton behavior, malicious motives or illegal narcotics 
possession above a specified quantity) that, if found by a preponderance of 
the evidence by the sentencing judge, would direct a penalty in the upper 
range.

But Justice Stevens cryptically warned that Apprendi would not tolerate 
such exaltation of form over substance; thus, legislatures would be 
constitutionally prohibited from circumventing the precedent by fragmenting 
the customary elements of crimes such as murder or robbery with a handful 
triable to a jury beyond a reasonable doubt under a "guilt" banner and the 
remainder triable by a judge using a preponderance standard under a 
"sentencing" rubric.

Further arresting was Justice Stevens' refusal to endorse the 
constitutionality of longstanding federal sentencing guidelines used by 
judges to punish within a statutory range with the noncommital observation: 
"The guidelines are . . . not before the court."

And Justice Thomas added in a concurring opinion that a "crime" for 
purposes of the Constitution "includes every fact that is by law a basis 
for imposing or increasing punishment . . . Thus, if the legislature 
defines some core crime and then provides for increasing the punishment of 
that crime upon a finding of some aggravating fact . . . the core crime and 
the aggravating fact together constitute an aggravated crime, just as much 
as grand larceny is an aggravated form of petit larceny." Justice Thomas 
also explicitly declined to bless the constitutionality of the federal 
sentencing guidelines.

Over the past two decades, both Congress and the states were swept by a 
tide of public disgruntlement with lenient sentencing to enact determinate 
rules to replace open-ended discretion that enhanced baseline punishments 
if enumerated aggravating factors relating to the crime or the criminal 
were found by the sentencing judge under a preponderance test. All of those 
statutes now sit under a cloud.

Further, if Apprendi is applied retroactively, which is a genuine 
possibility, countless federal and state prisoners would require 
resentencing. Applied prospectively, the case is likely to prompt unbending 
sentencing schemes and the ending of judicial discretion in toto, which 
would migrate to chief executives in the exercise of pardon prerogatives.

Some would deplore such a harsh sentencing revolution. But isn't there 
something instinctively shocking in the prevailing system that empowers 
judges (not a jury of peers) to find defendants guilty of uncharged crimes 
or to second-guess acquittals without proof beyond a reasonable doubt and 
markedly stiffen punishments and social stigma accordingly? Doesn't that 
invite an abuse of authority that the rights to jury trial and proof beyond 
a reasonable doubt were written into the Constitution to prevent?

Bruce Fein is a lawyer and free-lance writer specializing in legal issues.
- ---
MAP posted-by: Jo-D