Pubdate: Sun, 06 Aug 2000
Source: St. Petersburg Times (FL)
Copyright: 2000 St. Petersburg Times
Contact:  http://www.sptimes.com/
Forum: http://www.sptimes.com/Interact.html
Author: Robyn E. Blumner

COURT SAYS JURIES, NOT JUDGES, MUST DECIDE THE CRIME

Just say "criminal procedure" to most people and, as if through autonomic
function, their eyes start to glaze over. The field can be duller than
spectator golf and as hard to follow as Newt Gingrich's code of marital
fidelity. But if ever you or someone you care about is falsely accused of a
crime, the constitutional protections for criminal defendants become very
relevant.

This past term, the U.S. Supreme Court decided a case with such far-reaching
implications that it could force the reconsideration of prison sentences for
tens of thousands of convicted drug dealers. Why haven't you heard of it?
Well, first, the case came down the same week the court ruled on explosive
issues over partial-birth abortion and gay Boy Scouts. And, second, the
ruling ran 106 pages long and involved the complex, arcane world of
sentencing law. Lawyers are struggling to understand the case's
consequences, most reporters are understandably clueless.

The case, Apprendi vs. New Jersey, involves an incident that took place in
the wee hours of the morning, Dec. 22, 1994, when Charles Apprendi Jr. fired
several gunshots into the home of a black family living in his otherwise
all-white neighborhood of Vineland, N.J. While no one was hurt in the
shooting, Apprendi was indicted on multiple firearms charges. One of the
three counts to which he eventually pleaded guilty -- possessing a firearm
for an unlawful purpose -- carried a prison term of up to 10 years.

So far this is pretty straightforward, right? Here's the snag: New Jersey
also has a hate crime statute that allows the trial judge to enhance the
sentence for certain crimes motivated by racial prejudice. At the
prosecutor's prompting, just before sentencing, the judge considered whether
Apprendi's actions were intended to intimidate blacks. The judge concluded
they were and gave Apprendi an enhanced sentence of 12 years in prison.

Why would this additional hate crime sentence concern the U.S. Supreme
Court? Because the Sixth Amendment guarantees defendants notice of the
accusations against them and that a jury, not a judge, determines guilt. By
a vote of 5 to 4, the court said the enhanced penalty violated due process
because Apprendi wasn't initially charged with a hate crime, a judge ruled
him guilty of it, and he was given a prison term beyond the range available
to the judge for the initial firearm violation -- meaning he was punished
for a crime he wasn't properly convicted of.

Susan Klein, a professor at the University of Texas Law School and a former
federal prosecutor, said she has identified at least 40 federal criminal
statutes that appear to be unconstitutional under these new rules. "And
there are similar statutes in every state," she said.

Prosecutors should be waking up at night in a cold sweat: Virtually every
conviction under a federal drug statute is now at risk. Federal drug
statutes ask the jury only to determine whether the defendant has possessed,
manufactured or sold illicit drugs. Judges are then given the job to decide
the type and volume of drugs sold and to sentence accordingly. When a judge
considers these extra facts and then punishes the defendant with more prison
time than one would get for trace amounts, the defendant's constitutional
right to have his guilt judged by a jury of his peers is infringed.

Just like the severity of physical contact can run the gamut from simple
battery to murder, so, too, the severity of a drug offense depends upon the
volume and type of drugs sold. But by lumping all drug offenses together,
without reference amounts, Congress has effectively elbowed the jury out of
the most integral decisions of the trial.

Taking it to an extreme is the best way to illustrate why this violates fair
trial principles. Suppose, says Milton Hirsch, Miami-based criminal defense
attorney, "the state has only one crime: doing harm to others. Otherwise
everything else is for the judge to decide." The judge determines the actual
offense (larceny, murder, etc.), the intent of the accused in committing the
crime, and then imposes a sentence. This setup is unconstitutional, Hirsch
says, because it defines away a jury's role. It strips the jury of its
traditional function of deciding the nature and quality of the offense and
how much to stigmatize the defendant – a legislative end run around the jury
system.

Congress and the state legislatures have barred juries from deciding
important aspects of a defendant's guilt because they want to stack the deck
against the accused. The less say the jury has, the better it is for the
prosecution. Juries must decide each element of the offense beyond a
reasonable doubt, whereas judges only have to apply a preponderance of the
evidence standard when they are considering factors relevant to sentencing.
Juries also sometimes use their power to nullify the law by refusing to
convict when they think the charges are unjust or too severe.

Apprendi has everyone in the criminal justice system scrambling. Courts are
already getting appeals based on the ruling and expect a future barrage. An
emergency committee at the Department of Justice has been formed to study
the case's aftermath, since there are 61,000 people in federal prison on
drug-related convictions, all of whom could potentially challenge their
sentence.

These days, prosecutors are rarely the ones to sweat a Supreme Court
decision. Too often, the Rehnquist court has willingly shunted aside civil
liberties concerns in favor of expedience. It's nice to see our rights win a
big one for a change. And, if there ever comes a time when you need the
Constitution's protections for the accused, you'll be grateful, too.
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