Pubdate: Sun, 06 Aug 2000 Source: St. Petersburg Times (FL) Copyright: 2000 St. Petersburg Times Contact: http://www.sptimes.com/ Forum: http://www.sptimes.com/Interact.html Author: Robyn E. Blumner COURT SAYS JURIES, NOT JUDGES, MUST DECIDE THE CRIME Just say "criminal procedure" to most people and, as if through autonomic function, their eyes start to glaze over. The field can be duller than spectator golf and as hard to follow as Newt Gingrich's code of marital fidelity. But if ever you or someone you care about is falsely accused of a crime, the constitutional protections for criminal defendants become very relevant. This past term, the U.S. Supreme Court decided a case with such far-reaching implications that it could force the reconsideration of prison sentences for tens of thousands of convicted drug dealers. Why haven't you heard of it? Well, first, the case came down the same week the court ruled on explosive issues over partial-birth abortion and gay Boy Scouts. And, second, the ruling ran 106 pages long and involved the complex, arcane world of sentencing law. Lawyers are struggling to understand the case's consequences, most reporters are understandably clueless. The case, Apprendi vs. New Jersey, involves an incident that took place in the wee hours of the morning, Dec. 22, 1994, when Charles Apprendi Jr. fired several gunshots into the home of a black family living in his otherwise all-white neighborhood of Vineland, N.J. While no one was hurt in the shooting, Apprendi was indicted on multiple firearms charges. One of the three counts to which he eventually pleaded guilty -- possessing a firearm for an unlawful purpose -- carried a prison term of up to 10 years. So far this is pretty straightforward, right? Here's the snag: New Jersey also has a hate crime statute that allows the trial judge to enhance the sentence for certain crimes motivated by racial prejudice. At the prosecutor's prompting, just before sentencing, the judge considered whether Apprendi's actions were intended to intimidate blacks. The judge concluded they were and gave Apprendi an enhanced sentence of 12 years in prison. Why would this additional hate crime sentence concern the U.S. Supreme Court? Because the Sixth Amendment guarantees defendants notice of the accusations against them and that a jury, not a judge, determines guilt. By a vote of 5 to 4, the court said the enhanced penalty violated due process because Apprendi wasn't initially charged with a hate crime, a judge ruled him guilty of it, and he was given a prison term beyond the range available to the judge for the initial firearm violation -- meaning he was punished for a crime he wasn't properly convicted of. Susan Klein, a professor at the University of Texas Law School and a former federal prosecutor, said she has identified at least 40 federal criminal statutes that appear to be unconstitutional under these new rules. "And there are similar statutes in every state," she said. Prosecutors should be waking up at night in a cold sweat: Virtually every conviction under a federal drug statute is now at risk. Federal drug statutes ask the jury only to determine whether the defendant has possessed, manufactured or sold illicit drugs. Judges are then given the job to decide the type and volume of drugs sold and to sentence accordingly. When a judge considers these extra facts and then punishes the defendant with more prison time than one would get for trace amounts, the defendant's constitutional right to have his guilt judged by a jury of his peers is infringed. Just like the severity of physical contact can run the gamut from simple battery to murder, so, too, the severity of a drug offense depends upon the volume and type of drugs sold. But by lumping all drug offenses together, without reference amounts, Congress has effectively elbowed the jury out of the most integral decisions of the trial. Taking it to an extreme is the best way to illustrate why this violates fair trial principles. Suppose, says Milton Hirsch, Miami-based criminal defense attorney, "the state has only one crime: doing harm to others. Otherwise everything else is for the judge to decide." The judge determines the actual offense (larceny, murder, etc.), the intent of the accused in committing the crime, and then imposes a sentence. This setup is unconstitutional, Hirsch says, because it defines away a jury's role. It strips the jury of its traditional function of deciding the nature and quality of the offense and how much to stigmatize the defendant – a legislative end run around the jury system. Congress and the state legislatures have barred juries from deciding important aspects of a defendant's guilt because they want to stack the deck against the accused. The less say the jury has, the better it is for the prosecution. Juries must decide each element of the offense beyond a reasonable doubt, whereas judges only have to apply a preponderance of the evidence standard when they are considering factors relevant to sentencing. Juries also sometimes use their power to nullify the law by refusing to convict when they think the charges are unjust or too severe. Apprendi has everyone in the criminal justice system scrambling. Courts are already getting appeals based on the ruling and expect a future barrage. An emergency committee at the Department of Justice has been formed to study the case's aftermath, since there are 61,000 people in federal prison on drug-related convictions, all of whom could potentially challenge their sentence. These days, prosecutors are rarely the ones to sweat a Supreme Court decision. Too often, the Rehnquist court has willingly shunted aside civil liberties concerns in favor of expedience. It's nice to see our rights win a big one for a change. And, if there ever comes a time when you need the Constitution's protections for the accused, you'll be grateful, too. - --- MAP posted-by: Don Beck