Slim
Supreme
Court
Majority
Upholds
But
Also
Criticizes
Mandatory
Minimum
Sentencing
6/28/02
(press release from Families Against Mandatory Minimums, http://www.famm.org) A divided Supreme Court, noting the evils of mandatory minimum sentencing, signaled Monday (6/24) that Congress should abandon such laws in the face of widespread criticism. By a close vote, however, the Court upheld the constitutionality of a mandatory minimum scheme in a federal gun statute. The 5-4 decision came in Harris v. United States, No. 00-10666. "We are disappointed with this outcome, but it underscores the need for Congress to act decisively to end mandatory minimum sentencing, a practice that while arguably constitutional, is widely condemned as unjust," said Mary Price, general counsel of Families Against Mandatory Minimums (FAMM), a national sentencing reform group that filed a amicus curiae (friend-of-the-court) brief in Harris. Mr. Harris was found guilty of a drug trafficking offense and also convicted for violating section 924 (c)(1)(A) of the federal criminal code. That statute provides a minimum sentence of five years and a maximum sentence of life for using a firearm in furtherance of a drug trafficking offense. If the firearm is "brandished," the mandatory minimum sentence increases to seven years and if discharged, to ten years. The jury convicted Harris of the charge of using or carrying a firearm in connection with a drug offense. The judge then found, in a separate sentencing proceeding, that Harris "brandished" the firearm and sentenced him to the mandatory minimum sentence of seven years. Harris argued that "brandishing" was an element of a separate, more serious statutory offense of which he was not charged and convicted. He also urged the Court to find the gun statute unconstitutional following the Court's landmark 2000 decision in Apprendi v. New Jersey, if the gun statute assigned the job of finding the mandatory minimum triggering fact of brandishing to the judge and not the jury. In rejecting Harris' claims, Justice Kennedy, writing for the Chief Justice, and Justices Scalia and O'Connor (and for Justice Breyer in parts), concluded: (1) the fact of "brandishing" that triggers a mandatory minimum sentence of seven years if found by the judge, was intended by Congress as a "sentencing factor" and not an element of the offense. (Offense elements must be stated in an indictment and found beyond a reasonable doubt by a jury, while sentencing factors need not be stated in the indictment and need only be found by a judge by applying a lower standard of proof); (2) that legislatures may constitutionally define such sentencing factors and assign them specific, mandatory minimum sentences that need not be charged in an indictment or proved to a jury so long as they do not increase the sentence beyond the maximum authorized by Congress; and (3) that the decision in McMillan v. Pennsylvania, 477 US 79 (1986), permitting lawmakers to assign to judges the job of determining the facts that trigger mandatory minimum terms, survives the Court's ruling in Apprendi v. New Jersey, 530 US 466 (2000). (Apprendi requires any fact that increases a sentence beyond that authorized by the statute be treated as an element of the offense by being stated in the indictment and found beyond a reasonable doubt by the jury.) The Court also rejected Harris' argument that Apprendi overruled McMillan, noting that the mandatory minimum sentence of seven years was within the maximum sentence authorized by Congress -- life in prison. Justice Kennedy wrote: "Apprendi said that any fact extending the defendant's sentence beyond the maximum authorized by the jury's verdict would have been considered an element of an aggravated crime -- and thus the domain of the jury -- by those who framed the Bill of Rights. The same cannot be said of a fact increasing the mandatory minimum (but not extending the sentence beyond the statutory maximum), for the jury's verdict has authorized the judge to impose the minimum with or without the finding." The dissent, authored by Justice Thomas on behalf of himself and Justices Ginsburg, Stevens and Souter, argued that the sentence is unconstitutional and that McMillan should be overturned following Apprendi. The rule from Apprendi and its precursors, the dissent argued, is that it is unconstitutional to remove from the jury the determination of facts that "increase the prescribed range of penalties to which a criminal defendant is exposed." The fact of brandishing "indisputably alters the prescribed range of penalties" to which the defendant is exposed by raising the minimum from five to seven years. While disagreeing with the outcome of today's Supreme Court decision, FAMM notes the opinion's observation that mandatory minimum sentences are roundly criticized: "The Court is well aware that many question the wisdom of mandatory minimum sentencing. Mandatory minimums, it is often said, fail to account for the unique circumstances of offenders who warrant a lesser penalty. See, e.g., Brief for Families Against Mandatory Minimums Foundation as Amicus Curiae 25, n. 16... These criticisms may be sound, but they would persist whether the judge or the jury found the facts giving rise to the minimum. We hold only that the Constitution permits the judge to do so, and we leave the other questions to Congress, the States, and the democratic processes." The cited footnote from FAMM's briefs told the Court that FAMM's files "are filled with transcripts of sentencings and letters from sentencing judges expressing deep remorse, frustration and regret over having to impose mandatory minimum terms which are objectively unreasonable and inapt in particular cases." The FAMM brief had argued that "the core principle of Apprendi -- that facts which justify and authorize particular levels of punishment must be proved beyond a reasonable doubt to a jury -- applies not only where the legislature authorizes the sentencing court to exceed what would otherwise be the statutory maximum, but also where the court is prohibited from sentencing below a mandatory minimum." Price noted, "The Court clearly signaled its concern with the rigidity of mandatory minimum sentencing and called on Congress to address the problem. Both the majority opinion and Justice Breyer's partial concurrence -- a ringing critique of mandatory minimums -- echo FAMM's own condemnation of mandatory minimums. Such blind justice is, in the words of Justice Breyer, "'fundamentally inconsistent with Congress' simultaneous effort to create a fair, honest, and rational sentencing system.'" The Supreme Court decision
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