SUPREME COURT RETURNS TO MANDATORY SENTENCING

A wary Supreme Court heard oral arguments yesterday in a case that could
cast a long shadow of doubt over mandatory minimum sentences handed out to
thousands of state and federal defendants across the country.

An attorney for North Carolina pawnshop owner William Joseph Harris told
the court that his client's seven-year sentence for selling drugs should be
thrown out because a judge, employing a lower standard of proof than a jury
would have, found that Harris had "brandished" a gun during the drug deal.

Though identified in federal anti-drug trafficking law as a factor that may
result in a higher minimum sentence, brandishing a firearm is "an element
that has to be proven" beyond a reasonable doubt, federal public defender
William C. Ingram said.

Ingram's argument was met with skepticism from several justices who
appeared concerned that the case - Harris v. United States, No. 00-10666 -
is a follow-on to the court's decision two years ago in Apprendi v. New
Jersey. In that case, the court, by a 5 to 4 vote, struck down a judge's
decision to increase a New Jersey man's sentence beyond the maximum that
would otherwise have been allowable, based on the judge's finding that the
crime was racially motivated.

In Apprendi, the court held that the Constitution required a jury, not a
judge, to find beyond a reasonable doubt any fact that bumps up a maximum
sentence.

Apprendi sent a shock wave through the criminal justice system. It spawned
appeals and reversals of large numbers of sentences - and the justices are
still struggling to define the ruling's ultimate meaning.

Apprendi's implications will be debated in two more cases next month: U.S.
v. Cotton, No. 01-687, concerns Baltimore drug gang members' claim that
their sentences should be overturned because the precise amount of drugs
they sold was not specified in the indictment or determined beyond a
reasonable doubt by a jury. And Ring v. Arizona, No. 01-488, poses the
question of whether states may permit judges rather than juries to impose
the death penalty instead of life imprisonment.

But if Apprendi was concerned with the ceiling beyond which maximum
penalties may not rise, the issue yesterday was the floor beneath which a
punishment may not drop. Justices who had opposed the original Apprendi
decision suggested that Harris's claim demonstrates that Apprendi placed
the court at the top of a slippery slope.

Ingram repeatedly tried to assure the court that a victory for his client
would create only modest changes in the law. But Justice David H. Souter,
who voted in the Apprendi majority, told him at one point that "I don't see
your argument as being sort of a slam dunk."

Deputy Solicitor General Michael R. Dreeben, arguing for the United States,
said that Apprendi has triggered "judicial chaos," and that its extension
could create "practical problems" for states - which have made heavy use of
mandatory minimum sentences in reliance on a 1986 Supreme Court ruling that
upheld them.

Mandatory minimums were adopted in response to public anger at lenient
sentences meted out by judges under previous law. However, mandatory
minimums have themselves sparked debate, as many people have been locked up
for long periods for relatively minor offenses such as possession or sale
of a small quantity of drugs.

In a friend-of-the-court brief in yesterday's case, Families Against
Mandatory Minimums, representing 24,000 current inmates or family members
of inmates, urged the court to overrule its 1986 holding in the light of
Apprendi.

Mandatory minimums "are expensive and inefficient, perpetuate unwarranted
and unjust sentencing disparities, and transfer the sentencing function
unwisely from the judiciary to the prosecution," the organization's brief said.

But a brief submitted by 25 state governments, including Maryland's, noted
that "countless state prisoners will be subject to early release" if the
court overrules its past approval of mandatory minimums.