JUSTICES CONSIDER SENTENCINGS

Case Concerns Jury Vs. Judge Term Decisions

WASHINGTON - 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 that the
legislature had specified for a crime.

The decision, Apprendi vs. New Jersey, not only invalidated New Jersey's
hate-crime law but called into question the basic sentencing system that
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 on Monday morning was labeled an argument but it 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.

At issue was a seven-year federal sentence that a pawnbroker in Albemarle,
N.C., received for "brandishing" a gun while he sold 4 ounces of marijuana
to undercover officers. Carrying a gun during a drug transaction violates a
federal law known as 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 mm 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
Harris guilty of the underlying offense.

On appeal to the 4th U.S. Circuit Court of Appeals, in Richmond, Va.,
Harris argued that the judge's role violated the rule of the Apprendi
decision. But the 4th 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 vs. 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?