It must feel pretty lonely sitting on the 9th US Circuit Court of Appeals. The court, which has jurisdiction over ten western states, has often been accused of "judicial activism" and is overturned by the Supreme Court more often than any other circuit. Now it finds itself isolated from the other circuits on a crucial sentencing ruling and under pressure from outraged federal prosecutors. At the same time, the Supreme Court has decided to review the 9th Circuit's ruling barring the Oakland Housing Authority from evicting residents because their guests or relatives had drugs on the property.
Both cases are of national importance, and the fact that the Supreme Court has accepted the public housing case does not bode well for the rights of public housing tenants. "The common wisdom usually is they take cases where they're dissatisfied with the result so far," said Paul Renne, attorney for the plaintiffs. "I hope that isn't the reason," he told the Oakland Tribune.
Now, urged on by the Bush administration, the Supreme Court will weigh in on the case, setting a precedent that will affect every public housing resident in the country. The case originated when the Oakland Housing Authority moved to evict four elderly residents because of minor drug infractions by their guests or relatives. The housing authority was following the lead of the Department of Housing and Urban Development (HUD), which had promulgated a "one-strike" rule for drug offenses in public housing. The 9th Circuit blocked the move in a January ruling, saying tenants could not be evicted for behavior over which they had no control (http://www.drcnet.org/wol/171.html#hudeviction).
Catherine M. Bishop, an attorney with the National Housing Law Project in Oakland, told the Tribune she is worried about the case given the current political context. She feared the national mood may be swinging toward sacrificing some civil rights in an effort to gain a sense of security.
Renne disagreed. "The issue here isn't one that goes to national security -- it goes to fundamental fairness of whether someone in public housing can be evicted without them having any control over the events causing the eviction, or even any knowledge of those events."
Meanwhile, in a Wednesday hearing, the full 11-judge panel of the 9th Circuit heard arguments about a decision by a three-judge panel in Buckland v. Washington, where the circuit found non-jury sentence enhancements unconstitutional. Differing from five other US circuit courts, however, the three-judge panel not only threw out the sentencing enhancements, but also invalidated the 1984 sentencing law that created mandatory minimum sentences for drug offenses (http://www.drcnet.org/wol/202.html#9thcircuit). Such a ruling, if it stands, could impact the cases of thousands of drug defendants in areas covered by the 9th Circuit.
That ruling sent federal prosecutors and the Justice Department into a tizzy. Every federal prosecutor in the circuit asked the full panel to review the decision, which would have removed a potent weapon from their prosecutorial arsenals. The case is seen as so potentially important that once the 9th Circuit decided to review its decision, every federal defender in the circuit submitted briefs asking the court to stand by its earlier ruling.
The 9th circuit based its decision on last year's Supreme Court ruling in Apprendi v. New Jersey, where the court found that extending a sentence beyond the statutory maximum in post-conviction hearings not submitted to jury was unconstitutional. Since then, the case's ramifications have spilled over into drug prosecutions, and appeals courts in five circuits have ordered federal prosecutors to prove to a jury the amount of drugs in question. Those rulings still allowed judges to enhance a sentence -- all the way to life -- based on the quantity of drugs proven to a jury.
But the 9th Circuit, based in San Francisco, went even further. It declared the entire sentence enhancement statute unconstitutional. The effect was to limit drug sentences to the 20-year maximum allowed under federal sentencing guidelines because no enhancements for large quantities of drugs can be allowed.
The panel listened to heated arguments from prosecutors and federal defenders, and engaged in a spirited discussion on the bench, but given the split among the various circuits, Circuit Judge Stephen R. Reinhardt's wish will probably turn out to be true. "Maybe the Supreme Court can decide this," he said.