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. - --- MAP posted-by: Josh