The past ten days have seen dramatic news from our nation's courts, the kind of news that could change everything. On June 23, an atypical majority of the Supreme Court led by Justice Antonin Scalia held that juries, not judges, must decide any fact of a case if it is to be used to increase the length of a convicted defendant's sentence, not merely enough facts to determine guilt on some of them.
Though the ruling was directed at the sentencing guideline system in use in Washington State, this week the highly conservative US District Court Judge Paul Cassell of Utah -- who clerked for then-Appeals Court Judge Scalia after graduating law school, in 1984 when the federal sentencing guidelines were being written -- relied on it to find the federal guidelines unconstitutional themselves. Cassell wrote that he intends to ignore the guidelines "until the constitutionality... has been definitely resolved by the Supreme Court."
And there was more... In Maine, US District Court Judge Brock Hornby reduced a defendant's sentence from 20 years down to 6½ years, calling the Scalia ruling's applicability to the federal guidelines "inevitable." And in Pennsylvania, an Assistant US Attorney reacted to the decision by asking the courts to put a hold on sentencing so his office could seek guidance from Attorney General John Ashcroft.
Interestingly, the sentencing ferment didn't wait for the Supreme Court ruling. A few days earlier, Senior District Judge William Young of Massachusetts had also found the federal guideline system unconstitutional, condemning it as "heavily rigged against the citizen" and castigating the Department of Justice for "callous indifference to innocent human life." Young noted the bizarre fact that "federal criminal sentences today may be based on conduct of which a defendant has been formally acquitted" -- an unfortunate procedure formulated by the original sentencing commission that crafted the guidelines, a group which included now-Supreme Court Justice Stephen Breyer.
Young is no wild-eyed radical, but a well respected jurist; he gained popular fame for patriotic words spoken to would-be shoe-bomber Richard Reid on sentencing him last December, published in news outlets around the country. Certainly Cassell and Scalia are not the traditional darlings of criminal justice reformers, our sorts of reforms at least. Two years ago Scalia drew criticism for insulting a high school student and plaintiff who had challenged a high school drug testing policy -- "the druggie school," Scalia dubbed a hypothetical institution of learning to which the parents of Tecumseh, OK, student Lindsay Earls would presumably prefer to send her. Neither Cassell's ruling nor Scalia's was made in the context of a drug case.
But if Scalia falls short on some of the issues we care about, he has held fast to one very important principle this time -- the right to a trial by jury, in the full spirit of what that should mean. And he has done so in the face of credible warnings from fellow conservative Justice Sandra Day O'Connor of the radical change, and considerable turmoil, that his finding is likely to presage.
Perhaps other justices will hold true to another principle of demonstrated importance to them, the notion that the Constitution's Interstate Commerce Clause does not authorize the federal government to do everything they might desire. Also in non-drug cases, a majority faction of the Supreme Court has rolled back federal power on this basis. Late last year the 9th Circuit applied that logic to throw out federal statute law criminalizing non-commercial, local medical use and distribution of marijuana in the historic Raich v. Ashcroft case. The Supreme Court has agreed to hear the Bush administration's appeal of that ruling. If five or more justices stay consistent to their previous views on the limits of federal power, the results will have serious political ramifications and potentially undermine drug prohibition at the federal level itself.
Only time will tell how the Supreme Court will decide on Raich v. Ashcroft, and discerning how much further a positive ruling could serve to undo drug laws would take even more time. And the ramifications of last week's ruling, while clearly major, are also uncertain in their extent. For example, the Court could decide in a future case that sentencing guidelines or mandatory minimum sentences, even harsh ones, can be constitutional if applied in a procedure that relies on juries to establish the facts as used during sentencing hearings. But that doesn't seem to be what experts are predicting from this, at least not all of them.
And even if that happens, it will also take time. In the meanwhile, judges around the country, already incensed by the undermining of their sentencing discretion and the sheer draconian length of many drug sentences, now have rulings from the highest levels of the bench to justify them not merely in departing from harsh guideline sentences, but even in ignoring them entirely. By the time a different ruling could be made to start to turn things back, literally tens if not hundreds of thousands of defendants could have challenged their sentences, and in many cases gained relief. As expensive and tumultuous as the ruling may be for the courts now, changing things back may turn out to be equally expensive and tumultuous by that time, and the actions of numerous judges responding to those petitions, and ruling in new cases, will have permanently altered the terms of the debate.
Other forces are also serving to alter the debate. Though last week's ruling saw the Court split 5-4, of the four justices taking the dissenting view, at least two of them have spoken out against mandatory minimum sentencing for reasons other than constitutionality, Chief Justice William Rehnquist and Justice Anthony Kennedy. Kennedy has become a veritable champion for ending mandatory minimums, most recently lending his name to an American Bar Association committee which last week called for that. Whether through judicial pronouncement or legislative reform, an overwhelming majority of the Court wants change.
Bad timing on the part of Rep. James Sensenbrenner, chairman of the House Judiciary Committee, who just offered a bill to seriously increase mandatory minimum sentencing 2½ weeks ago. He must feel on the backside of history this time. Given the serious constitutional questions the Supreme Court and other judges have raised since then about this kind of lawmaking, the responsible thing for him to do would be to withdraw his bill. Of course, if he were responsible about these things then he would have respected the views of judges and analysts more than he does, and never introduced it in the first place. But we'll let that go, if he'll let the bill go.
The conventional wisdom in drug policy reform has been that we won't win this in the courts, right as we may be, at least not at the federal level. The courts are to some degree political animals and are subject to the currents of popular opinion. I have largely ascribed to this in the past, even though I think the legal efforts are worthwhile and important, but now I'm rethinking that view. Though it's true that most judges, including most judges on the Supreme Court, will probably not stand up for all the necessary first principles at the level needed to undo the drug laws, maybe that much isn't necessary. Maybe it's enough for one or two key justices to stand up for one principle, and another one or two to stand up for a different one, for the whole thing to ultimately unravel. It may be that the drug war is so flawed in legal and ethical terms that it is inevitable for it to collapse under its own weight regardless.
Perhaps in the long run the Constitution will actually work -- even for drugs!