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 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."