Pubdate: Sat, 15 Jan 2005
Source: Register-Herald, The (Beckley, WV)
Copyright: 2005 The Register-Herald
Contact:  http://www.register-herald.com/
Details: http://www.mapinc.org/media/1441
Author: Mark Burnette

SUPREME COURT SLOW, LIKE SOCIETY

The U.S. Supreme Court issued a landmark ruling last week that essentially
struck down the federal criminal sentencing guidelines. The Supreme Court
ruled that parts of the guidelines are unconstitutional and that they are
now advisory instead of mandatory. I wonder what took the Supreme Court so
long to realize this.

The sentencing guidelines were enacted in 1986 for the stated purpose of
making more uniform the prison sentences that convicted criminals receive in
federal courts across the country. For the most part, the guidelines
achieved this goal. The only problem I had with the guidelines was the part
called "relevant conduct." This allowed the government to dramatically
enhance someone's sentence after the conviction by informing the judge of
everything else the person had done wrong in his or her life. The government
did not have to prove this beyond a reasonable doubt, and it did not have to
present evidence to a jury. This allowed the government to convict people,
or entice pleas, for more minor criminal conduct, and then enhance the
sentence without proving the more serious criminal conduct.

In 1996, I represented a 22-year-old Charleston man in an appeal of a
24-year prison sentence he had received in federal court in Charleston. The
man had purchased about 17 ounces of crack cocaine in New York with the
intent to distribute it in Charleston. He pleaded guilty and cooperated with
the U.S. attorney's office in its investigation. Under the guidelines,
sentences in drug crimes are primarily based on the amount of the drug
involved. Accordingly, my client expected a sentence in the range of 108 to
135 months, or nine to 11 years.

At sentencing, the government presented a witness who testified that my
client had bought and sold drugs on numerous other occasions. This witness
had a long criminal history, including a conviction for killing a man, and
he was testifying to satisfy his obligations as part of a sweetheart plea
bargain he had received in another case. My client had no prior criminal
record. This testimony was not presented to a jury and was not proved other
than by the testimony of this one convicted felon. Furthermore, my client
had received no notice that the government was going to present this
evidence until after he had already pleaded guilty to the other charge. The
sentencing judge accepted the felon's testimony and sentenced my 22-year-old
client to more than 24 years in prison, without parole. This was more than
twice the sentence that he should have received.

I appealed, arguing that the sentence violated the U.S. Constitution for
several reasons, including the Fifth Amendment right to fair notice of the
charges by presentment or indictment, the Sixth Amendment right to be
informed of the nature and cause of the accusation, the Sixth Amendment
right to trial by jury, and the Fifth Amendment right to due process of law.
These were not novel arguments. They had been made by many lawyers before
me, and they have been made by many lawyers since my case. The appeals court
and Supreme Court didn't want to hear it in 1996, but this week they finally
listened.

Why does it take the U.S. Supreme Court 19 years to realize that a law is
blatantly unconstitutional? Why do they ignore the arguments of hundreds of
lawyers before they finally get it? Some would instinctively reply that the
court has changed, and the more liberal members struck down the guidelines
this week. Not so. Seven of the nine current justices were appointed by
Republican presidents, and the two most conservative justices, Scalia and
Thomas, voted with the majority to strike down the guidelines. No new
justices have been appointed since the Supreme Court rejected my similar
appeal in 1996.

I believe the slow action by the Supreme Court reflects more of a societal
problem. A counselor at the federal prison in Beckley once told me that
nearly all of their inmates were young black men doing more than 20 years
for drug crimes. The guidelines punish crack cocaine 100 times more severely
than powder cocaine, even though the drugs are chemically the same. Crack is
cheaper and is the drug more likely to be used by minorities and poor
whites. Powder cocaine is more expensive and more likely to be used by
affluent white people. If the drugs carried the same punishment, and our
federal prisons had filled up over the years with rich white kids doing long
sentences, I suspect that it would not have taken the Supreme Court as long
to strike the law down.

- -

On a less serious note, the other day I asked my 2-year-old son what he was
going to be when he grew up. His response: "Happy."

- - Burnette, a Lewisburg attorney, is a former 11th District state senator.
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