JUSTICES WEIGH HOW FAR TO TAKE A SENTENCING REVOLUTION

ASHINGTON, March 25 -- The Supreme Court unleashed a potential revolution
in criminal sentencing two years ago when it ruled that only the jury, and
not a judge, could find a defendant eligible for a sentence above the range
the legislature had specified for a crime.

The decision, Apprendi v. New Jersey, not only invalidated New Jersey's
hate-crime law but also called into question the basic sentencing system
the federal government and many states use, in which the jury determines
guilt but judges make the crucial factual findings -- the quantity of
drugs, for example -- that determine the sentence.

Now the justices have to decide what happens next. The proceeding in the
courtroom this morning was labeled an argument, and technically it was. But
in contrast to the typical argument, an often dizzying hour in which the
justices interrupt each other as often as they hurl questions at the
lawyers, this hour more resembled a high-level seminar in which the
justices and the lawyers were engaged with utmost seriousness in figuring
out what the Apprendi revolution meant and how far it would go.

The session was as riveting as it was unusual, with the justices treating
the lawyers as essential partners in the common enterprise of translating
theory into practice.

At issue was a seven-year federal sentence a pawnbroker in Albemarle, N.C.,
received for "brandishing" a gun while he sold four ounces of marijuana to
undercover officers. Carrying a gun during a drug transaction violates a
federal law, Section 924(c), and yields a sentence of five years to life in
prison.

"Brandishing" a gun, as opposed to simply carrying one, brings a mandatory
minimum sentence of seven years.

The federal indictment charged William J. Harris only with carrying a gun,
a 9-millimeter handgun that he wore, unconcealed, in a holster. The finding
that he had brandished the weapon was made by the judge, after the jury
found Mr. Harris guilty of the underlying offense.

On appeal to the United States Court of Appeals for the Fourth Circuit, in
Richmond, Va., Mr. Harris argued that the judge's role violated the rule of
the Apprendi decision. But the Fourth Circuit, along with every other
federal appeals court to consider the issue, held that because the maximum
sentence was life in prison, the seven-year minimum was obviously within
the statutory range and did not violate the Apprendi principle.

His Supreme Court appeal, Harris v. United States, No. 00-10666, therefore
raises the important question that the Apprendi decision left hanging: if a
judicial finding cannot be allowed to pierce the sentencing ceiling, can it
logically be permitted to raise the sentencing floor, through the
imposition of a mandatory minimum sentence?

Ordinarily, the Supreme Court would not even agree to hear a case in which
all the lower courts were in agreement, particularly on the government's
side. Simply by taking this case, and two other Apprendi-related cases that
it will hear next month, the court was sending a signal on the importance
of the issue.

Mr. Harris's lawyer, William C. Ingram, a federal public defender from
Greensboro, N.C., told the court that the logic was inescapable.

"Mandatory minimums add additional deprivations of liberty" based on facts
"that should be found by a jury beyond a reasonable doubt," Mr. Ingram
said. "The constitutional underpinning of Apprendi was that any fact that
increases the sentencing range" had to be found by the jury, whether it
raised the ceiling or the floor, he added.

Under the New Jersey hate-crime law that the Apprendi decision invalidated,
the jury determined guilt of the basic offense and the judge then decided
whether the defendant should receive an enhanced sentence based on a
finding that the crime was motivated by bias.

The Supreme Court held that as a matter both of constitutional due process
and of the right to trial by jury, the element that converted an ordinary
crime into a hate crime had to be charged in the indictment and proven to a
jury beyond a reasonable doubt.

Representing the government, Deputy Solicitor General Michael R. Dreeben
conceded that it was "obvious" that within the Apprendi decision "there
were seeds of a more fundamental change." But Mr. Dreeben said the court
should not feel compelled by logic to extend it to mandatory minimum sentences.

While the focus of the Apprendi decision was on the role of the jury, Mr.
Dreeben said, "mandatory minimums take away judicial discretion, not jury
discretion" by limiting the judge's ability to give a lower sentence.

He continued: "That is not an interest that was at stake in Apprendi.
Defendants have never been able to rely on not getting a stiffer sentence
within the maximum, and we believe the court should adhere to that
tradition today."

Apprendi v. New Jersey was a 5-to-4 decision that fractured the court's
usual ideological alliances: Justice John Paul Stevens wrote the majority
opinion, joined by Justices Antonin Scalia, David H. Souter, Clarence
Thomas and Ruth Bader Ginsburg. The dissenters were Justices Sandra Day
O'Connor, Stephen G. Breyer and Anthony M. Kennedy, along with Chief
Justice William H. Rehnquist.

The dissenters warned that the decision would have unknown and far-reaching
consequences.

So in many ways the most interesting aspect of the argument today was the
justices' effort to use the two lawyers as, in effect, expert witnesses to
help answer the question of how Apprendi was playing in the real world. To
that end, the justices treated the lawyers with unusual respect.

Addressing Mr. Ingram, the public defender, Justice Breyer referred to "the
defense bar, of which you are an important part." And the justices let Mr.
Dreeben speak for long uninterrupted minutes.

Mr. Dreeben said that while the Apprendi ruling had caused "a considerable
amount of judicial chaos," the government had adapted by charging and
submitting to the jury those facts that could raise the maximum sentence.
If mandatory minimums also fell within Apprendi, the government could
handle it, he said, adding that the states, which have more mandatory
minimum sentences, would have more difficulty.

But Mr. Dreeben said that in extending Apprendi to mandatory minimums, the
court would almost inevitably be raising questions about the federal
sentencing guidelines. "If the court rules against the government, we'll be
back" to argue that the guidelines, which leave more discretion for judges,
should survive, he said.

Mr. Ingram sought to allay the court's concerns over the guidelines and
over the prospect of a flood of even more cases.

"But if the Constitution demands it, so be it," he said, adding that
mandatory minimum sentences were more important to most defendants than
theoretical increases in the maximum sentence.

The court heard another criminal case today, in which the question was
whether a federal appeals court had properly ordered a new sentencing
hearing for a Tennessee death row inmate whose lawyer had failed to present
mitigating evidence or to make a closing argument.

In Bell v. Cone, No. 01-400, Tennessee was appealing on the ground that the
United States Court of Appeals for the Sixth Circuit, in Cincinnati, had
exceeded its authority in granting a writ of habeas corpus.

Nearly all the justices indicated by their questions that they agreed with
the state that the lawyer's performance, while problematic, was not
constitutionally deficient.