Supreme
Court
to
Hear
Sentencing
Case,
Mandatory
Minimums
Could
Be
At
Risk
12/21/01
The Supreme Court has agreed to hear a sentencing case that could call into question federal sentencing provisions, including mandatory minimum sentences and even federal sentencing guidelines themselves. Building on last year's ruling in Apprendi v. New Jersey (http://www.drcnet.org/wol/202.html#9thcircuit), where the justices held that sentencing factors that could increase a prison sentence beyond the statutory maximum sentence must be proven beyond a reasonable doubt by a jury (and not merely found by the judge in a post-trial hearing), the Court is now poised to decide whether that same logic applies to any sentencing enhancements. The case in question, Harris v. United States, is relatively narrow, but gives the Court the opportunity to decide whether to extend Apprendi protections to the much larger set of cases -- primarily drug cases -- where sentencing factors lead not to sentences exceeding the statutory maximum but to mandatory minimum sentences. William J. Harris, a North Carolina pawnshop owner, was convicted in 1999 of selling four ounces of marijuana to undercover agents. Because he wore an unconcealed handgun in a holster on his hip during the transaction, his federal indictment charged him with both marijuana distribution and a violation of Section 924 (c)(1)(A) of the US criminal code, which makes it a crime to carry a weapon during a drug deal. Harris was convicted under the gun statute, which carries a five-year mandatory minimum, but in a post-trial hearing, the judge found that Harris had not only possessed but also "brandished" the weapon. Instead of the five-year sentence for the gun charge, the judge sentenced him to seven years, the mandatory minimum sentence for brandishing. Harris appealed to the 4th US Circuit Court of Appeals, but that court found that the sentence did not violate Apprendi because it did not exceed the statutory maximum. The 4th Circuit is not alone in its interpretation of Apprendi; only the 9th US Circuit Court has so far shown a willingness to extend Apprendi to cases not involving sentences that exceed statutory minimums (http://www.drcnet.org/wol/199.html#apprendicontinues). But now, the Supreme Court has shown a willingness to consider whether to extend Apprendi. The question before the court is whether "[g]iven that a finding of brandishing as used in USC 921 (c)(1)(A) results in an increased mandatory minimum sentence, must the fact of brandishing be alleged in the indictment and proved beyond a reasonable doubt?" For the Court to find in the affirmative, it will have to overturn a 1986 precedent, McMillan v. Pennsylvania, which held that judicial discretion in sentencing within the sentence range was not subject to constitutional challenge. But in Apprendi, Justices John Paul Stevens, Antonin Scalia and Clarence Thomas wrote that McMillan should be overruled. According to the New York Times, "few people would be surprised if a majority of the court held this view." The court could avoid the constitutional issue involved in overturning McMillan if it held that the brandishing question was a sentencing factor, such as criminal history, rather than an element of the offense itself. But since Apprendi, appeals from people doing mandatory minimum sentences who argue that Apprendi's logic invalidates their sentences as well, have steadily increased, and the court will have to deal with the issue sooner or later. "This is a signal that the court wants to revisit McMillan," said Mary Price, general counsel for Families Against Mandatory Minimums (http://www.famm.org), a group representing prisoners, their families and others interested in sentencing reform. "The 4th Circuit said the brandishing was a sentencing factor, not an element of the crime." FAMM will file an amicus curiae brief urging the court to overturn McMillan, said Price, who is cautiously optimistic that the court will rule favorably. "If mandatory minimums are overturned, that would be momentous," she told DRCNet. "There would be major implications for the tens of thousands of people affected by mandatory minimums." But, Price warned, even a favorable Supreme Court ruling could be undone by Congress. "Congress could redraft the sentencing laws," she said. "The fix would be to explicitly make these sentencing factors into elements of the offense instead." Also, Price noted, the legality of mandatory minimums in and of themselves is not in question. "Only those statutes that use sentencing factors -- almost entirely drug and gun statutes -- would be affected," she said.
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