WINE, DOGS AND DRUGS ON HIGH COURT AGENDA

The cases are just some of those before the justices this session.
Other issues could have far-reaching effects on the legal system.

WASHINGTON - The Supreme Court justices, a solemn and sober lot,
will spend time this fall talking about wine, beef, marijuana and dogs, all
part of their wide-ranging duty to police the limits of the government's
power. They will also consider whether young murderers can be put to death
for their crimes. But when the court's term officially opens Monday, the
first order of business will be to answer a question raised at the end of
the last term: Is the federal sentencing system, which punishes 64,000
criminals a year, unconstitutional because it allows judges, acting alone,
to add to prison terms?

If they answer yes, the Supreme Court may force a profound shift in
how criminals are sentenced in America, one that will affect the state
courts in California and many other states as well as the federal system.

Until now, the general understanding has been that prosecutors charge
defendants with a crime, juries typically decide whether they are
guilty and, if so, judges impose the punishment. In recent rulings,
however, a narrow Supreme Court majority has said the right to a jury
trial also includes the right to have a jury decide the key facts that
determine a sentence.

Other than a prior conviction, "any fact that increases the penalty
for a crime" must be decided by the jury or admitted by the defendant,
Justice Antonin Scalia said for a 5-4 majority in the case of Blakeley
vs. Washington. That simple statement struck down the sentencing
system in Washington state, and it now threatens to do the same in the
federal system. In both, judges are authorized to decide the
"aggravating factors" that increase a prison term.

Take, for example, the case of Ducan Fanfan, who last year sold a
small bag of cocaine to an informer outside a Burger King restaurant
near Portland, Maine. A jury found him guilty as charged of selling at
least 500 grams of cocaine, a crime that called for six years in
prison under U.S. sentencing guidelines.

On June 28, four days after the Blakely ruling, Fanfan came before a
federal judge for sentencing. Prosecutors said the defendant was the
leader of a drug gang who had 2.5 kilograms of cocaine in his home and
car. Based on these allegations " which the judge found to be true " Fanfan
would go to prison for 16 years.

However, imposing such a stiff sentence would be unconstitutional
under the just-announced Blakely ruling, the judge concluded. So he
sent Fanfan to prison for six years based on just the jury's verdict.

Bush administration lawyers appealed Fanfan's case directly to the
Supreme Court. They argued that it made a "mockery" of the law by
permitting judges to give more lenient sentences based on certain
facts but forbidding them from increasing the sentences based on other
facts.

Fanfan's is one of two cases that will be heard Monday afternoon as
the justices debate what to do with the federal sentencing system. The
outcome is likely to affect most state courts. California does not
have a detailed set of sentencing guidelines like the federal system,
but state law calls for judges to increase a defendant's prison term
for certain "aggravating factors."

Those increased sentences now stand in doubt.

So does the future of the death penalty for young murderers.

Four liberal-leaning justices " John Paul Stevens, David H.
Souter, Ruth Bader Ginsburg and Stephen G. Breyer" have already
said they viewed such as executions as "shameful" and a "relic of the
past." If they are joined by Justices Sandra Day O'Connor or Anthony
M. Kennedy, the court would limit capital punishment to those who were
18 or older at the time of their crimes.

Since 1990, only Texas, Oklahoma and Virginia have carried out
executions of young murderers. The justices will take up a Missouri
case, Roper vs. Simmons, on Oct. 13 to decide the issue.

The wine and marijuana cases will come before the court in December.

As wine has grown in popularity, many wine drinkers have asked whether
they can order their favorite vintage from a distant vineyard and have
it shipped directly to them. The answer depends on state laws.

About half the states forbid all direct shipments of wine across their
borders. Only licensed wholesalers are permitted to import alcohol,
and they in turn sell it to retailers. The states rely on the 21st
Amendment, which repealed the prohibition on alcohol sales and was
approved in 1933, for this authority. The amendment states that
"importation into any state a of intoxicating liquors is hereby prohibited."

Although all states permit the sale of alcohol, they do so only
through their own sets of regulations.

Eleanor Heald, a wine critic from Troy, Mich., and David Lucas, the
owner of a small winery near Lodi, Calif., are challenging the bans on
wine shipments to Michigan and New York. In the case of Granholm vs.
Heald, they argue that the Constitution calls for a free flow of
commerce across state lines, including that of alcohol.

"This case will determine whether consumers or a cartel of
billion-dollar distributors will determine what wine is available to
consumers in New York or two dozen other states," said Clint Bolick of
the Washington-based Institute for Justice, who represents Lucas.

The case of John Ashcroft vs. Angel Raich may determine the fate of
the medical marijuana laws in California and eight other states.
Raich, who suffers from an operable brain tumor, uses homegrown
marijuana to relieve her pain. This is legal under the Compassionate
Use Act approved by California's voters.

However, Ashcroft, the U.S. attorney general, says that federal drug
laws forbid all use of marijuana. Federal agents raided the homes of
several Californian patients who grew their own.

The high court will decide whether the federal government has
overreached. That question may see the court's conservatives and
liberals trade places.

In the last decade, Chief Justice William H. Rehnquist, the
conservative leader, has insisted on limiting federal power.

For example, he spoke for a 5-4 majority that struck down the federal
Gun-Free Schools Zone Act on the grounds that mere gun possession did
not involve interstate commerce. The liberal dissenters said the court
should uphold the broad power of Congress.

Last year, the liberal U.S. 9th Circuit Court of Appeals in San
Francisco turned the tables. Relying on the logic of Rehnquist's
opinion, it ruled the use of homegrown marijuana was beyond federal
authority because it did not involve interstate commerce.

The court will also hear a challenge to a unique California prison
policy that segregates new inmates by race for as many as 60 days.
Prison officials say they seek to prevent gang violence while new
inmates are evaluated. Lawyers for Garrison Johnson, an African
American inmate, say racial segregation is unconstitutional in all
instances.

The court will also decide whether police can use drug-sniffing dogs
in routine traffic stops. Usually, officers need some evidence of a
drug crime before they search for narcotics. But prosecutors contend
that when a trained dog sniffs the air, it is not engaged in a search,
and therefore police may use dogs whenever and however they choose.

The agriculture industry will be closely watching a case about
government-sponsored ad campaigns. Cattlemen are challenging the fees they
must pay for ads such as "Beef: It's What's for Dinner."

Dozens of similar ad campaigns are sponsored by the U.S. Department of
Agriculture as well as California and other states. A ruling in the
case of Veneman vs. Livestock Marketing Assn. could free farmers from
having to pay for them.

On the docket
Key cases before the Supreme Court in the first half of its 2004-05 term,
which begins Monday:

Sentencing: Are the federal sentencing guidelines unconstitutional because
they allow judges, acting without juries, to add to the prison terms of
convicted criminals? (U.S. vs. Booker and U.S. vs. Fanfan. To be argued
Monday.)

Deportation: If immigrants drive drunk and injure another person,
have they committed a "crime of violence" that requires deportation?
(Leocal vs. U.S., Oct. 12.)

Executions: Can states impose the death penalty on murderers who
were under age 18 at the time of their crime, or is this cruel and
unusual punishment? (Roper vs. Simmons, Oct. 13.)

Segregation a: Can California prison authorities segregate new
inmates by race to avoid violence, or does all racial segregation
violate the Constitution? (Johnson vs. California, Nov. 2.)

Age: Do pay scales that favor younger workers violate the federal
law against age discrimination? (Smith vs. city of Jackson [Miss.].
Nov. 3.)

Dogs: May police officers who stop cars for traffic offenses use
a dog to sniff the vehicle for drugs, or do they first need evidence
of a possible drug crime? (Illinois vs. Caballes, Nov. 10.)

Marijuana: Can U.S. agents raid the homes of Californians who
grow and use marijuana to treat their pain, or does this exceed the
federal power to "regulate commerce among the states"? (Ashcroft vs.
Raich, Nov. 29.)

Wine: Can states bar consumers from buying wine out of state and
having it shipped to them, or does the Constitution protect the free
flow of all goods, including alcohol? (Granholm vs. Heald, Dec. 7.)

Beef: Can the government require cattlemen to pay for industry ad
campaigns such as "Beef, It's What's for Dinner," or do these forced
payments violate the free-speech rights of farmers? (Veneman vs.
Livestock Marketing Assn., Dec. 8.)

Property: Can cities seize private homes to make way for business
developments? (Kelo vs. New London, January.)
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Source: U.S. Supreme Court