Pubdate: Tue, 26 Mar 2002
Source: New York Times (NY)
Copyright: 2002 The New York Times Company
Contact:  http://www.nytimes.com/
Details: http://www.mapinc.org/media/298
Author: Linda Greenhouse
Bookmark: http://www.mapinc.org/find?199 (Mandatory Minimum Sentencing)

JUSTICES WEIGH HOW FAR TO TAKE A SENTENCING REVOLUTION

ASHINGTON, March 25 -- The Supreme Court unleashed a potential revolution 
in criminal sentencing two years ago when it ruled that only the jury, and 
not a judge, could find a defendant eligible for a sentence above the range 
the legislature had specified for a crime.

The decision, Apprendi v. New Jersey, not only invalidated New Jersey's 
hate-crime law but also called into question the basic sentencing system 
the federal government and many states use, in which the jury determines 
guilt but judges make the crucial factual findings -- the quantity of 
drugs, for example -- that determine the sentence.

Now the justices have to decide what happens next. The proceeding in the 
courtroom this morning was labeled an argument, and technically it was. But 
in contrast to the typical argument, an often dizzying hour in which the 
justices interrupt each other as often as they hurl questions at the 
lawyers, this hour more resembled a high-level seminar in which the 
justices and the lawyers were engaged with utmost seriousness in figuring 
out what the Apprendi revolution meant and how far it would go.

The session was as riveting as it was unusual, with the justices treating 
the lawyers as essential partners in the common enterprise of translating 
theory into practice.

At issue was a seven-year federal sentence a pawnbroker in Albemarle, N.C., 
received for "brandishing" a gun while he sold four ounces of marijuana to 
undercover officers. Carrying a gun during a drug transaction violates a 
federal law, Section 924(c), and yields a sentence of five years to life in 
prison.

"Brandishing" a gun, as opposed to simply carrying one, brings a mandatory 
minimum sentence of seven years.

The federal indictment charged William J. Harris only with carrying a gun, 
a 9-millimeter handgun that he wore, unconcealed, in a holster. The finding 
that he had brandished the weapon was made by the judge, after the jury 
found Mr. Harris guilty of the underlying offense.

On appeal to the United States Court of Appeals for the Fourth Circuit, in 
Richmond, Va., Mr. Harris argued that the judge's role violated the rule of 
the Apprendi decision. But the Fourth Circuit, along with every other 
federal appeals court to consider the issue, held that because the maximum 
sentence was life in prison, the seven-year minimum was obviously within 
the statutory range and did not violate the Apprendi principle.

His Supreme Court appeal, Harris v. United States, No. 00-10666, therefore 
raises the important question that the Apprendi decision left hanging: if a 
judicial finding cannot be allowed to pierce the sentencing ceiling, can it 
logically be permitted to raise the sentencing floor, through the 
imposition of a mandatory minimum sentence?

Ordinarily, the Supreme Court would not even agree to hear a case in which 
all the lower courts were in agreement, particularly on the government's 
side. Simply by taking this case, and two other Apprendi-related cases that 
it will hear next month, the court was sending a signal on the importance 
of the issue.

Mr. Harris's lawyer, William C. Ingram, a federal public defender from 
Greensboro, N.C., told the court that the logic was inescapable.

"Mandatory minimums add additional deprivations of liberty" based on facts 
"that should be found by a jury beyond a reasonable doubt," Mr. Ingram 
said. "The constitutional underpinning of Apprendi was that any fact that 
increases the sentencing range" had to be found by the jury, whether it 
raised the ceiling or the floor, he added.

Under the New Jersey hate-crime law that the Apprendi decision invalidated, 
the jury determined guilt of the basic offense and the judge then decided 
whether the defendant should receive an enhanced sentence based on a 
finding that the crime was motivated by bias.

The Supreme Court held that as a matter both of constitutional due process 
and of the right to trial by jury, the element that converted an ordinary 
crime into a hate crime had to be charged in the indictment and proven to a 
jury beyond a reasonable doubt.

Representing the government, Deputy Solicitor General Michael R. Dreeben 
conceded that it was "obvious" that within the Apprendi decision "there 
were seeds of a more fundamental change." But Mr. Dreeben said the court 
should not feel compelled by logic to extend it to mandatory minimum sentences.

While the focus of the Apprendi decision was on the role of the jury, Mr. 
Dreeben said, "mandatory minimums take away judicial discretion, not jury 
discretion" by limiting the judge's ability to give a lower sentence.

He continued: "That is not an interest that was at stake in Apprendi. 
Defendants have never been able to rely on not getting a stiffer sentence 
within the maximum, and we believe the court should adhere to that 
tradition today."

Apprendi v. New Jersey was a 5-to-4 decision that fractured the court's 
usual ideological alliances: Justice John Paul Stevens wrote the majority 
opinion, joined by Justices Antonin Scalia, David H. Souter, Clarence 
Thomas and Ruth Bader Ginsburg. The dissenters were Justices Sandra Day 
O'Connor, Stephen G. Breyer and Anthony M. Kennedy, along with Chief 
Justice William H. Rehnquist.

The dissenters warned that the decision would have unknown and far-reaching 
consequences.

So in many ways the most interesting aspect of the argument today was the 
justices' effort to use the two lawyers as, in effect, expert witnesses to 
help answer the question of how Apprendi was playing in the real world. To 
that end, the justices treated the lawyers with unusual respect.

Addressing Mr. Ingram, the public defender, Justice Breyer referred to "the 
defense bar, of which you are an important part." And the justices let Mr. 
Dreeben speak for long uninterrupted minutes.

Mr. Dreeben said that while the Apprendi ruling had caused "a considerable 
amount of judicial chaos," the government had adapted by charging and 
submitting to the jury those facts that could raise the maximum sentence. 
If mandatory minimums also fell within Apprendi, the government could 
handle it, he said, adding that the states, which have more mandatory 
minimum sentences, would have more difficulty.

But Mr. Dreeben said that in extending Apprendi to mandatory minimums, the 
court would almost inevitably be raising questions about the federal 
sentencing guidelines. "If the court rules against the government, we'll be 
back" to argue that the guidelines, which leave more discretion for judges, 
should survive, he said.

Mr. Ingram sought to allay the court's concerns over the guidelines and 
over the prospect of a flood of even more cases.

"But if the Constitution demands it, so be it," he said, adding that 
mandatory minimum sentences were more important to most defendants than 
theoretical increases in the maximum sentence.

The court heard another criminal case today, in which the question was 
whether a federal appeals court had properly ordered a new sentencing 
hearing for a Tennessee death row inmate whose lawyer had failed to present 
mitigating evidence or to make a closing argument.

In Bell v. Cone, No. 01-400, Tennessee was appealing on the ground that the 
United States Court of Appeals for the Sixth Circuit, in Cincinnati, had 
exceeded its authority in granting a writ of habeas corpus.

Nearly all the justices indicated by their questions that they agreed with 
the state that the lawyer's performance, while problematic, was not 
constitutionally deficient.
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