High Court Ruling May Rewrite Sentencing

by: Brooke A. Masters, Washington Post Staff Writer - Published in: The Washington Post
Sunday, July 23, 2000

A largely overlooked U.S. Supreme Court decision has called into question the sentences of tens of thousands of federal prisoners and threatens to swamp prosecutors and the court system with thousands of appeals.

The seemingly isolated ruling struck down a New Jersey hate crimes law that increased prison time for conduct never considered by a jury. But last week, a U.S. appeals court ruled that the same principle applies in thousands of federal drug cases, and analysts believe that dozens of other state and federal statutes may be unconstitutional based on the ruling.

In the long run, some analysts and prosecutors say, the June 26 decision also could jeopardize federal sentencing guidelines and similar state systems.

"Everybody and their brother is going to challenge their sentence, as well they should," said University of Texas law professor Susan Klein, a former federal prosecutor. She and a colleague have identified 39 federal and 20 state laws that may be unconstitutional under the decision. "It's just going to be a disaster."

Indeed, the U.S. Department of Justice convened an emergency committee to study the ramifications, defense attorneys are using the case in their appeals, and federal circuit courts around the country are bracing for a flood of new cases.

At issue in the 5 to 4 decision in Apprendi v. New Jersey is how much leeway judges have in sentencing defendants to additional time based on facts that were not part of a criminal indictment and were never voted on by a jury. The court ruled that the Sixth Amendment bars judges from going above the statutory maximum sentence by using such extra evidence, which may include motive, weapon used or volume of drugs sold.

That case--and the high court's June 29 decision to send a Colorado drug case back for reconsideration--gives hope to many of the 61,000 federal prisoners serving drug-related sentences. Thousands of other state and federal sentences may be too long as well.

"It's a case of enormous potential importance and we're going to have to spend a lot of time dealing with it," said Edward R. Becker, chief judge of the U.S. Court of Appeals for the 3rd Circuit, which covers New Jersey, Delaware and Pennsylvania.

Locally, the 4th Circuit, which covers Virginia, Maryland and three other states, has at least five appeals under consideration based on the decision. Federal judges and prosecutors are beginning to handle jury instructions and grand jury indictments differently to take into account the new standard.

Helen F. Fahey, the U.S. attorney for Eastern Virginia, said she expects her office to handle an enormous number of so-called Apprendi appeals. "We'll be spending more time working cases that we have already done rather than new cases coming in the door," she said.

Nationally, the Justice Department is also assessing the impact.

The decision drew little public attention initially because it was handed down the same week as rulings in long-awaited cases such as the one that upheld Miranda warnings about the right to remain silent during police interrogation, one that rejected a Nebraska law prohibiting what opponents call "partial birth" abortions and a third that said the Boy Scouts of America have a right to bar gays.

In Apprendi, the Supreme Court found that, on its face, the New Jersey law was unconstitutional because it allowed a judge to give a defendant more time on a firearms charge than the statutory maximum after finding that the crime was racially motivated.

The implications are much broader, judges, lawyers and analysts agree. "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt," said the decision written by Justice John Paul Stevens.

That principle is only fair, say defense attorneys, who have argued for years that it is wrong to give their clients more time based on evidence never considered by a jury.

"Right now, you can be sentenced for conduct you've been acquitted of, if the judge rules it is true by preponderance of the evidence," said Alexandria lawyer James Clark. "The only thing that's a mystery to me is that the Supreme Court has taken so long to do something about it."

Last week, the 8th Circuit Court--the first federal appeals court to consider the issue--found that the new rules in Apprendi apply to federal drug cases. Under current practices, drug sentences are determined largely by the amount and kind of drugs involved, but juries usually decide only whether a defendant has sold or possessed drugs. A judge then decides the quantities based on a presentence report from a probation officer.

That system is unconstitutional when the drug amounts bump up the potential maximum sentence, the 8th Circuit Court found.

That could be good news for Marion Promise, 45, who is serving a 30-year sentence in a federal prison in South Carolina. Promise was convicted last year based on the testimony of other drug dealers and was never caught with cocaine, according to court records.

His attorney appealed based on a footnote in a 1999 Supreme Court carjacking case. "We argued that the amount of cocaine he was held responsible for was a jury issue," said attorney Gary Murphy.

The 4th Circuit rejected that claim in June--two weeks before the Supreme Court made that same footnote the centerpiece of the majority opinion in Apprendi. Now Murphy has asked the Richmond-based appeals court to reconsider.

Murphy isn't the only one jumping on the issue. Greenbelt lawyer Fred Warren Bennett said he recently received a call from a former client, now incarcerated, asking him to file an appeal based on the case. "It's spreading like wildfire in the federal prison system," Bennett said. "There's going to be a lot of litigation."

Virginia Beach lawyer Keith Kimball has filed Apprendi-related appeals on behalf of three clients, arguing that their convictions--as well as their sentences--are invalid because the jury never ruled on specific drug amounts.

Fahey, whose office is responding to Kimball's cases, said she believes that most drug sentences will eventually be upheld because relatively few sentences exceed the statutory maximums. She also said her office is taking steps to ensure that new cases conform to last month's decision.

Two weeks ago, prosecutors in Alexandria asked U.S. District Judge Leonie M. Brinkema to tell jurors that they needed to decide specifically whether Darwyn Payne possessed five grams or more of cocaine. The jury convicted him, and Brinkema publicly praised the prosecutors for addressing the issues raised by Apprendi.

The case will have less of an impact on state court cases in Maryland and Virginia, officials said. In Maryland, juries determine drug amounts, and Virginia is one of the few states where juries--rather than judges--set the maximum penalty. The District is awaiting guidance from the Justice Department on Apprendi's impact, said Channing Phillips, spokesman for the U.S. attorney's office.

Some legal scholars believe that the Apprendi case may be the beginning of a revolution in criminal sentencing.

At least two justices--Clarence Thomas and Antonin Scalia--said in concurrences that they want juries to rule on all facts that increase prison time, not just those that push a sentence past a statutory maximum. That position could undercut mandatory sentencing guidelines that provide for increased penalties based on factors determined by a judge rather than a jury.

The court majority specifically chose not to address the issue of sentencing guidelines, but if Thomas and Scalia can get three more votes, most federal sentences handed down since 1987--and many state sentences--could be invalid. Issues such as increased time for harming vulnerable victims and longer sentences for abusing a position of responsibility might then have to go to a jury rather than a judge, analysts said.

That would cause chaos, said the dissenting Supreme Court justices. "Jury determination of all sentencing related facts . . . unless restricted, threatens the workability of every criminal justice system . . . [and] threatens efforts to make those systems more uniform" with sentencing guidelines, wrote Stephen G. Breyer, an early member of the U.S. Sentencing Commission.

But William W. Wilkins Jr., the commission's first chairman, said he believes that the guidelines will survive. "My reading of Apprendi leads me to conclude this decision will not have a dramatic effect," said Wilkins, a 4th Circuit Court judge. "It does not apply to many factors found in the guidelines, such as role in the offense."

What happens next remains to be seen. "Maybe the justices have reached their fill just as the prisons have reached theirs," said Alexandria defense attorney John Zwerling. "They're starting to realize that you can't put everybody in prison for their rest of their lives."