SENTENCING REVOLUTION?

Amid this summer's sound and fury many people may have missed that the
Supreme Court may have revolutionized criminal sentencing in a narrow and
virtually ignored 5-4 ruling in Apprendi vs. New Jersey (June 26, 2000). It
could prove every bit as unsettling as Miranda vs. Arizona (1966), which
rewrote the constitutional book on police interrogations.

A fragile majority held that a New Jersey statute, which doubled the
maximum sentence for unlawfully possessing and using a firearm (to 20
years, from 10), violated the constitutional right to a jury trial and
proof of guilt beyond a reasonable doubt.

The New Jersey law applied to those guilty of breaking a firearms law while
acting on hate. A judicial ruling would determine if the defendant acted on
hate.

The odd voting alignments in the Supreme Court's decision resembled mixing
oil and water.

The media should have seen this and realized a dramatic decision had just
been handed down. Liberal Justice John Paul Stevens wrote for the majority
and was complimented in enthusiastic endorsements from conservative
Justices Antonin Scalia and Clarence Thomas in their separate concurring
opinions.

Robust dissents were quilled by less antipodal Justices Sandra Day O'Connor
and Stephen Breyer. The Apprendi upheaval against customary sweeping
judicial discretion in sentencing is reminiscent of the exchange between
the dull King Louis XVI and the acute La Rochefoucald after the storming of
the Bastille: Question, "Is it a revolt?" Answer, "No, Sire, it is a
revolution."

Justice Stevens celebrated the right to jury trial and proof of wrongdoing
beyond a reasonable doubt as cherished bulwarks against government
oppression. At the time of the nation's founding, he noted, the criminal
jury trials determined both facts necessary to establish an offense and
aggravating circumstances that would justify a stiff sentence.

Pardons, not sentencing discretion, were employed to mitigate Rhadamanthine
punishments.

He mystifyingly denied, however, that the Constitution's jury trial and
reasonable doubt commands prohibited judicial sentencing discretion based
on contested facts within a punishment range, which is established by the
statute that defined the crime.

For instance, if the New Jersey firearms law declared that the judge should
impose a sentence close to the maximum of 20 years upon a guilty verdict
and a finding that the defendant acted with bigotry or hate, then it would
not run afoul of the Constitution. Justice Stevens thus concluded
unalarming to the status quo: "Other than the fact of a prior conviction
[which has already been proved to a jury beyond a reasonable doubt], 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."

If that were the whole story, Apprendi would be relatively inconsequential,
like a pebble splashing into the ocean.

Congress and state legislatures could preserve sentencing discretion by
prescribing for all crimes a punishment range from a small fine to life
imprisonment accompanied by a specification of facts (e.g., commission of
unindicted crimes or even charged crimes that occasioned not-guilty
verdicts — wanton behavior, malicious motives or illegal narcotics
possession above a specified quantity) that, if found by a preponderance of
the evidence by the sentencing judge, would direct a penalty in the upper
range.

But Justice Stevens cryptically warned that Apprendi would not tolerate
such exaltation of form over substance; thus, legislatures would be
constitutionally prohibited from circumventing the precedent by fragmenting
the customary elements of crimes such as murder or robbery with a handful
triable to a jury beyond a reasonable doubt under a "guilt" banner and the
remainder triable by a judge using a preponderance standard under a
"sentencing" rubric.

Further arresting was Justice Stevens' refusal to endorse the
constitutionality of longstanding federal sentencing guidelines used by
judges to punish within a statutory range with the noncommital observation:
"The guidelines are . . . not before the court."

And Justice Thomas added in a concurring opinion that a "crime" for
purposes of the Constitution "includes every fact that is by law a basis
for imposing or increasing punishment . . . Thus, if the legislature
defines some core crime and then provides for increasing the punishment of
that crime upon a finding of some aggravating fact . . . the core crime and
the aggravating fact together constitute an aggravated crime, just as much
as grand larceny is an aggravated form of petit larceny." Justice Thomas
also explicitly declined to bless the constitutionality of the federal
sentencing guidelines.

Over the past two decades, both Congress and the states were swept by a
tide of public disgruntlement with lenient sentencing to enact determinate
rules to replace open-ended discretion that enhanced baseline punishments
if enumerated aggravating factors relating to the crime or the criminal
were found by the sentencing judge under a preponderance test. All of those
statutes now sit under a cloud.

Further, if Apprendi is applied retroactively, which is a genuine
possibility, countless federal and state prisoners would require
resentencing. Applied prospectively, the case is likely to prompt unbending
sentencing schemes and the ending of judicial discretion in toto, which
would migrate to chief executives in the exercise of pardon prerogatives.

Some would deplore such a harsh sentencing revolution. But isn't there
something instinctively shocking in the prevailing system that empowers
judges (not a jury of peers) to find defendants guilty of uncharged crimes
or to second-guess acquittals without proof beyond a reasonable doubt and
markedly stiffen punishments and social stigma accordingly? Doesn't that
invite an abuse of authority that the rights to jury trial and proof beyond
a reasonable doubt were written into the Constitution to prevent?

Bruce Fein is a lawyer and free-lance writer specializing in legal issues.