Supreme Court Roundup

COURT TO WEIGH CRIMINAL SENTENCING

WASHINGTON -- The Supreme Court took a long-awaited next step today in its
continuing re-examination of the respective roles of judges and juries in
criminal sentencing, accepting a case that could call into question several
important federal sentencing provisions and perhaps the federal sentencing
guidelines themselves.

On the surface, the question in the case is a narrow one: whether a jury,
rather than a judge, must make the finding that a defendant was
"brandishing" a gun -- and not just carrying it -- in the course of
committing a drug offense. Under a federal law known as Section 924(c),
"brandishing" leads to a seven-year mandatory minimum sentence, while
carrying a gun brings a minimum sentence of five years.

So this new case, Harris v. United States, No. 00-10666, puts in play a
question that the Supreme Court did not reach in June 2000 when it declared
New Jersey's hate-crime statute unconstitutional in a surprising decision
that sent shock waves through the criminal justice system.

In that case, Apprendi v. New Jersey, the court ruled that under the Sixth
Amendment guarantee of trial by jury, any factor that increased the
statutory maximum sentence had to be proved to a jury beyond a reasonable
doubt rather than determined by the judge. Under New Jersey's hate-crime
law, it was the judge who made the crucial finding that a crime had been
motivated by bias, leading to a sentence of 12 years rather than 10 in the
particular case the court decided.

The Apprendi case did not give the court the occasion to consider whether
the same principle applies to the more common situation in which some
separate factor does not result in piercing the ceiling of a maximum
sentence but rather raises the sentencing floor by establishing a mandatory
minimum. Left for another day was the question of whether such a factor --
most commonly, the precise quantity of drugs involved in a narcotics
transaction -- must be charged in the indictment and proved to a jury
beyond a reasonable doubt rather than left to a judge's determination after
conviction.

Defendants subject to mandatory minimum sentences have been arguing in
their appeals that the logic of the Apprendi decision makes their sentences
invalid as well. Dozens of such cases have reached the Supreme Court in
recent months, and the justices have spent the last several weeks deciding
which case to use for examining the issue.

The defendant in the selected case, William J. Harris, was convicted in
1999 for selling four ounces of marijuana to undercover officers in his
pawnshop in Greensboro, N.C. During the transaction, Mr. Harris carried a
9-millimeter handgun, unconcealed in a holster. The federal indictment
charged him with distributing marijuana and violating Section 924(c), which
makes it a separate crime to carry a gun during a drug transaction.

But the indictment did not specify whether Mr. Harris was brandishing the
gun, a finding that the judge made after conviction on the basis of the
government's presentence report. Mr. Harris was sentenced to time served on
the drug conviction, which amounted to the two days he had spent in
pretrial detention, and the required minimum of seven years for brandishing
a gun.

The United States Court of Appeals for the Fourth Circuit, in Richmond,
Va., said that the Apprendi decision did not render his sentence invalid,
because since the maximum sentence under Section 924(c) was life in prison,
the mandatory minimum of seven years remained well within the permissible
sentencing range.

Like the Fourth Circuit, every other appeals court to consider the Section
924(c) issue has also upheld the government, due in part to a reluctance to
take the Apprendi decision further than the Supreme Court itself has taken
it and also because doing so would mean overturning a 1986 Supreme Court
precedent that held that judicial discretion in selecting a sentence within
the available range was not subject to constitutional attack.

In the Apprendi case, three justices, John Paul Stevens, Antonin Scalia and
Clarence Thomas, said this precedent, McMillan v. Pennsylvania, should be
overruled, and few people would be surprised if a majority of the court
held this view.

There is one way the court might avoid reaching the constitutional issue in
the new case. If the court held that Congress intended the brandishing
question to be a sentencing factor, rather than a separate element of the
Section 924(c) offense, the validity of the judge's role would not be in
question, and the Apprendi debate would have to wait, although probably not
for long, for another statutory context.

There were these other developments at the court today:

Plant Patents

The court upheld the longstanding view of the United States Patent and
Trademark Office and ruled that sexually reproduced plants and their seeds
could be patented.

The patent office has issued some 1,800 patents on plants, plant parts and
seeds in the 21 years since the Supreme Court ruled, in Diamond v.
Chakrabarty, that living things are patentable, so a decision that plants
could not be patented would have been surprising and unsettling.

The 6-to-2 decision, J.E.M. Ag Supply Inc. v. Pioneer Hi-Bred International
Inc., No. 99-1996, affirmed a ruling last year by the United States Court
of Appeals for the Federal Circuit, a court here with nationwide
jurisdiction over patent appeals.

The Supreme Court appeal was brought by an agricultural supply company that
challenged the validity of Pioneer Hi-Bred's patent on a variety of hybrid
corn. J.E.M., which does business as Farm Advantage Inc., argued that the
existence of two federal laws, the Plant Patent Act of 1930 and the Plant
Variety Protection Act of 1970, meant that the general federal patent law,
which offers patent holders more protection, did not apply to plants.

The court's opinion today by Justice Thomas said the two plant-specific
laws were alternatives, not substitutes, for protection under the general
federal law. Justices Stevens and Stephen G. Breyer dissented; Justice
Sandra Day O'Connor did not participate in the case.

Probationers' Rights

The court ruled unanimously that the police do not need a warrant or
probable cause for searching the home of a person on probation who has
agreed as part of the probation order to submit to a search of his home or
personal effects "at any time, with or without a search warrant."

Such an agreement is standard in California, where this case arose when
deputy sheriffs in Napa County searched the home of Mark J. Knights to look
for evidence of vandalism of a nearby power plant. They had reason to
suspect Mr. Knights, who was on probation for a drug offense, but lacked a
warrant or probable cause. The Federal District Court and the United States
Court of Appeals for the Ninth Circuit, both in San Francisco, ruled that
the search was invalid because it was for "investigatory" rather than
"probationary" purposes.

Writing for the court today in United States v. Knights, No. 00-1260, Chief
Justice William H. Rehnquist said the search was reasonable because under
his agreement, Mr. Knights had "significantly diminished privacy
interests." He said that given the greater likelihood that people on
probation would commit crimes, the government "may therefore justifiably
focus on probationers in a way that it does not on the ordinary citizen."

Government Information

The court agreed to hear an appeal by Warren Christopher, the former
secretary of state, and six other former federal officials from a ruling
that permitted Jennifer K. Harbury, the widow of a Guatemalan rebel leader,
Efrain Bamaca-Velasquez, to sue them for failing to tell her the truth
about her husband's fate after his disappearance in Guatemala in 1992.

Although facts of the case remain in dispute, and are not before the court,
it is not disputed that Mr. Bamaca remained alive for months after his
capture by the Guatemalan army. Ms. Harbury, a lawyer who staged a hunger
strike in front of the White House in 1995 in an effort to shame the
government into telling her what had happened, asserts that Central
Intelligence Agency operatives took part in her husband's torture and
murder and that she would have gone to court had she known he was alive.

Although the Federal District Court here dismissed the suit, the United
States Court of Appeals for the District of Columbia Circuit ruled last
year that the officials were not immune from suit on Ms. Harbury's theory
that they had deprived her of her constitutional right to access to the
courts. In their appeal, Christopher v. Harbury, No. 01-394, the officials
argue that the decision "will chill both the speech and the discretion of
government officials."