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*** Judicial Change On The Horizon

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    (Be sure to read the comments* below the article) High Court Ruling May Rewrite Sentencing http://washingtonpost.com/wp-dyn/articles/A28463-2000Jul22.html A
    Message 1 of 1 , Jul 24, 2000
      (Be sure to read the comments* below the article)
      High Court Ruling
      May Rewrite Sentencing
          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
          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."

      * Once JAIL becomes the law of this nation, there will be precedence set for juries, not judges, to be the sole determiner of sentences. JAIL specifically sets forth in paragraph (r) in relation to sentencing judges, "Indictment.  .... Upon conviction, the special trial jury shall have exclusive power of sentencing (limited to incarceration, fines and/or community service), which shall be derived by an average of the sentences of the trial jurors." Once the judges are sentenced by the jurors, not judges, in all states due to the passage of JAIL, the argument may be raised that citizens should also have the same right to be sentenced by the jurors, not judges.
      ** Branson's Predictions:  What we all are going to see happening is more and more decisions out of the courts that uphold the constitutional rights of the People. We shall also see more and more State Judiciary Commissions being judges up on misconduct charges. There records to date are atrocious. The reason for new the action is simple; because the judiciary is fast catching on that the People are indeed collectively gathering across this nation at an alarming rate for judicial accountability, and the judges know that the only way to attempt to disarm this rising movement in America is to show there is no need for it. JAIL will make all State Judicial Commissions as irrelevant as one asking if the moon is shining at 12 noon. Everyone please take note this day, 7/24/00, and see if Branson's predictions do not come to pass!
      J.A.I.L.  (Judicial Accountability Initiative Law)
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                                                       --Samuel Adams     
      "There are a thousand hacking at the branches of evil to one
      who is striking at the root."   -- Henry David Thoreau    <><
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