The Supreme Court's little-noticed June 26th ruling in Apprendi v. New Jersey looms larger and larger by the week, and it is throwing an ever-deepening shadow over current federal sentencing structures.
As DRCNet previously reported, in the Apprendi case the Supreme Court struck down a hate-crime sentence enhanced beyond the statutory maximum by factors weighed by a judge instead of proven by a jury (http://www.drcnet.org/wol/147.html#fedstremble). But the decision's real impact is being felt in federal drug cases, where judges have traditionally enhanced sentences based on the amount of drugs in question.
In brief, Apprendi said any sentencing enhancements beyond the statutory maximum for a given crime must be proven before a jury. The federal courts have traditionally relied on juries to find defendants guilty of a drug offense, but then sentenced defendants based on drug amounts asserted by the prosecution but not weighed by the jury.
Apprendi has thrown this scheme into doubt. The Supreme Court has sent one case back to the 10th US Circuit Court of Appeals (the eastern Rockies and far Midwest) for reconsideration in light of Apprendi, and judges in the 3rd District US Court of Appeals (mid-Atlantic area) are already handing out lighter sentences in the wake of the decision. The 6th US Circuit Court of Appeals has already thrown out an enhanced sentence.
Even the Justice Department now concedes that Apprendi applies to sentencing calculations based on drug quantities, a spokesman told the San Francisco Examiner.
This week, the 9th US Circuit Court of Appeals, covering California and eight other Western states, joined the stampede. The court overturned marijuana grower Kayle Nordby's 10-year minimum sentence, holding that he was only eligible for a maximum of five years. In the Nordby case, the sentencing judge enhanced his sentence by finding that he was responsible for more than 1000 plants, a fact not proven by a jury.
The Nordby decision is binding throughout the 9th Circuit, but so far applies only to those defendants appealing their convictions and those who are yet to go to trial. Whether Apprendi will apply retroactively to those prisoners who wish to reopen their cases remains unsettled and will probably require another Supreme Court ruling. If Apprendi can be applied retroactively, it has the potential to affect nearly half a million federal drug cases filed since 1989.
Not all courts are interpreting Apprendi as the 6th and 9th Circuits have. University of Southern California law professor Erwin Chemerinsky told the Examiner that some 36 federal and state court decisions have grappled with Apprendi as of the end of August. In many of those decisions, said Chemerinsky, courts have ruled that violations of Apprendi were only "harmless error," usually because defendants had admitted the elements of the crime.
Still, the 9th Circuit's Nordby decision is already having an impact. Prosecutors in Sacramento this Friday will ask a judge to sentence defendant Javier Mora to a lesser sentence "in light of Apprendi." And federal drug prosecutors are now beginning to include drug quantities in indictments and will present them to be proven before juries.
Intentionally or not, the Supreme Court appears to have embarked on a course that could well result in the demolition of current federal sentencing structures and the reduction of sentences for tens of thousands of drug war prisoners.