JUSTICES DEFINING SCOPE OF SENTENCING RULING

Supreme Court's Earlier Decision Had Far-reaching Implications

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. A proceeding in the
courtroom Monday was labeled an argument, and technically it was. But in
contrast to the typical argument, an often dizzying hour in which the
justices interrupt one another 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 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.

Courts Uphold Decision

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?

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.

Harris' 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," 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.

Hate Law Invalidated

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 proved 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 he 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, he
said, "mandatory minimums take away judicial discretion, not jury
discretion" by limiting the judge's ability to give a lower sentence.

Dreeben 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."