In a little-noticed ruling with potentially huge ramifications for the hundreds of thousands of people imprisoned under state and federal drug laws, the Supreme Court has restricted judges' ability to increase sentences based on facts never prosecuted or weighed by a jury.
The decision and subsequent rulings in the federal courts threaten to bury prosecutors and courts under a wave of appeals from prisoners whose sentences were increased by judges under determinate sentencing schemes. These include federal drug laws, under which juries determine only guilt or innocence and judges determine sentence lengths based on findings of drug quantities or types involved.
The case, Apprendi v. New Jersey, slipped by the mass media when it was decided on June 26, during the same week as heavily anticipated Supreme Court rulings on Miranda rights, the Boy Scouts, and partial birth abortion. But the case, along with a subsequent ruling from the 8th Circuit Court of Appeals that extended Apprendi to thousands of federal drug cases, is calling into question the entire federal sentencing structure. In the wake of its Apprendi decision, the Supreme Court also reversed a Colorado drug case and sent it back to the 10th Circuit Court for reconsideration, lending more hope to the 61,000 thousand persons held under federal drug laws.
"Everybody and their brother is going to challenge their sentence, as well they should," University of Texas law professor Susan Klein told the Washington Post. She told the Post that she and a colleague have identified 39 federal and 20 state laws that may be unconstitutional under Apprendi. "It's going to be a disaster," she said.
Still, defense attorneys do not expect a sudden exodus of drug war prisoners from behind the razor wire. Carmen Hernandez, co-chair of the National Association of Criminal Defense Lawyers' Post-Conviction Relief committee, told DRCNet that the decision's effects are just beginning to be felt.
"There have been only a handful of cases so far, and the courts are applying Apprendi in a very narrow sense," Hernandez said. "In the few cases that have come down, Apprendi didn't alter the sentence at all because the sentences didn't exceed the statutory maximum."
And, warned Hernandez, "If you are charged with multiple counts, judges can get around Apprendi by running sentences consecutively instead of concurrently."
Christopher Warnock, a Washington, DC, defense attorney, also sees practical limits to Apprendi's impact. "If your case has already been appealed, then the courts won't let you raise it. If you are on appeal now, you absolutely need to raise it as an issue," he told DRCNet.
"Apprendi is a very important case, said Warnock. "There has been a basic assault on civil liberties from all directions, but the Apprendi decision says 'wait a minute, we're going too far, we're trashing basic institutions.' Apprendi restores the power of the jury. The jury is the premier fact-finding mechanism in our system of justice, and we should respect it, not undermine or erode its power."
The ruling had its genesis in a New Jersey hate crime. In December 1994, Apprendi fired shots at the house of his African-American neighbors and told arresting officers he didn't want blacks in his neighborhood. The state of New Jersey charged him with some 22 counts, including a hate crime charge. He eventually accepted a plea bargain in which he pled guilty to three counts, not including the hate crime count, which would have allowed the judge to "enhance" Apprendi's sentence if, "by a preponderance of evidence," he found that the shooting was racially motivated. Apprendi faced a 10-year maximum sentence on the most serious count, a weapons charge.
During the sentencing phase of his trial, however, the state introduced a motion to enhance the sentence on the grounds that the shooting was a hate crime. The judge agreed and sentenced Apprendi to 12 years on the firearms count, two more years than the law otherwise allowed.
Apprendi appealed, arguing that the 14th Amendment's due process clause, which applies the federal Bill of Rights to state criminal courts, required New Jersey to honor the Sixth Amendment's injunction that only a jury can find a defendant guilty of a felony.
The Supreme Court agreed in a 5-4 vote, notable for finding Justices Antonin Scalia and Clarence Thomas on the side of a criminal defendant. Both authored separate concurring opinions that may undercut the mandatory sentencing guidelines used in federal drug cases. Both jurists wrote that they want juries to rule on all facts that increase prison time, not just those that enhance a sentence past its statutory maximum.
The majority opinion explicitly chose not to address sentencing guidelines, but with only three additional votes, Scalia and Thomas could invalidate most federal sentences handed down since 1987.
In the majority opinion, Justice John Paul Stevens wrote: "The Fourteenth Amendment right to due process and the Sixth Amendment right to trial by jury, taken together, entitle a criminal defendant to a jury determination that he is guilty of every element of the crime with which he is charged, beyond a reasonable doubt."
Thus, wrote Stevens: "The Constitution requires that any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction, must be submitted to a jury and proved beyond a reasonable doubt."
It's only fair, say defense attorneys. "Right now, you can be sentenced for conduct you've been acquitted of if the judge rules it is true by the preponderance of the evidence," Alexandria, VA, attorney James Clark told the Post.
But defenders of the status quo are worried. Justice Stephen Breyer, who helped craft the federal sentencing guideline system, seemed particularly shrill in his dissent. Looking down from the heights, Breyer scoffed at the notion that juries should find the elements of a crime, calling it "a procedural ideal." Worse still in Breyer's view, which apparently places a higher constitutional premium on efficiency than on common ideas of fairness, the ruling was "impractical."
"[T]he real world of criminal justice cannot hope to meet any such ideal. It can function only with the help of procedural compromises, particularly in respect to sentencing," wrote the jurist.
In his concurring opinion, Justice Scalia scolded Breyer, writing that his dissent "proceeds on the erroneous and all-too-common assumption that the Constitution means what we think it ought to mean. It does not; it means what it says. And the guarantee that "[i]n all criminal prosecutions, the accused shall enjoy the right to... trial, by an impartial jury" has no intelligible content unless it means that all the facts which must exist in order to subject the defendant to a legally prescribed punishment must be found by the jury."
Breyer's plaints also earned the ire of DC defense attorney Warnock. "Liberals like Breyer are more concerned with the smooth functioning of the machinery then they are with democracy," he told DRCNet. "This shows a fundamental disrespect for democracy. If efficiency is the highest value, we may as well dispense with the court system altogether and just let the cops arrest and imprison people."
In her dissenting opinion, Justice Sandra O'Connor also raised alarm about the ruling's potential impact on the federal sentencing structure. Calling the ruling "a watershed change in constitutional law," O'Connor complained that the principle enunciated in Apprendi would wreak havoc with federal drug sentencing guidelines.
Its effect on sentences under the guidelines would be "unsettling," wrote O'Connor. The decision implies that such determinate sentencing schemes would be unconstitutional, she added, and concluded with a dire warning: "Thus... the Court's decision threatens to unleash a flood of petitions by convicted defendants seeking to invalidate their sentences in whole or in part on the authority of the Court's decision today."
Citing the 57,691 federal criminal cases and more than 14 million state criminal cases filed in 1998 and noting that many states have determinate-sentencing schemes, O'Connor concluded that the number of appeals based on Apprendi would be "colossal."
Hernandez is not so sure. "If Apprendi is saying this system is improper, then the whole notion of guideline sentencing goes out the window," she told DRCNet. "But that hasn't happened yet. Right now, the courts are continuing to say that as long as they are imposing a sentence lesser than the statutory maximum, they can do that."
"The real story with Apprendi is whether its notion of what is just and what the Constitution requires, whether those guarantees will be extended," Hernandez continued. "If they are, a lot of the concepts under which the guidelines operate will no longer be upheld."
The Department of Justice, meanwhile, has convened an emergency meeting to examine Apprendi's ramifications, and US Attorneys are beginning to take the ruling into account as they prosecute new cases. In a case reported by the Washington Post, three weeks ago prosecutors in Alexandria, VA, asked a US District Judge to instruct jurors that they needed to decide specifically whether the defendant possessed more than five grams of cocaine.
That does not surprise Hernandez. "I'm sure the Department of Justice is responding to this, especially in deciding how to charge cases in the future," she told DRCNet.
But, Hernandez continued, "Even though some of the judges' and US Attorneys' power may have been taken away, the horror of this whole system remains intact. The government still has the power to threaten defendants with harsh penalties to encourage plea bargains. People have pled guilty because they were looking at life without parole if they lost. You're seeing examples of that right now in the Rampart [Los Angeles] corruption scandal."