- The Washington Times - Tuesday, August 8, 2000

Amid this summer's sound and fury many people may have missed that the Supreme Court may have revolution-
ized criminal sentencing in a narrow and virtually ignored 5-4 ruling in Apprendi vs. New Jersey (June 26, 2000). It could prove every bit as unsettling as Miranda vs. Arizona (1966), which rewrote the constitutional book on police interrogations.
A fragile majority held that a New Jersey statute, which doubled the maximum sentence for unlawfully possessing and using a firearm (to 20 years, from 10), violated the constitutional right to a jury trial and proof of guilt beyond a reasonable doubt. The New Jersey law applied to those guilty of breaking a firearms law while acting on hate. A judicial ruling would determine if the defendant acted on hate.
The odd voting alignments in the Supreme Court's decision resembled mixing oil and water. The media should have seen this and realized a dramatic decision had just been handed down. Liberal Justice John Paul Stevens wrote for the majority and was complimented in enthusiastic endorsements from conservative Justices Antonin Scalia and Clarence Thomas in their separate concurring opinions. Robust dissents were quilled by less antipodal Justices Sandra Day O'Connor and Stephen Breyer. The Apprendi upheaval against customary sweeping judicial discretion in sentencing is reminiscent of the exchange between the dull King Louis XVI and the acute La Rochefoucald after the storming of the Bastille: Question, "Is it a revolt?" Answer, "No, Sire, it is a revolution."
Justice Stevens celebrated the right to jury trial and proof of wrongdoing beyond a reasonable doubt as cherished bulwarks against government oppression. At the time of the nation's founding, he noted, the criminal jury trials determined both facts necessary to establish an offense and aggravating circumstances that would justify a stiff sentence. Pardons, not sentencing discretion, were employed to mitigate Rhadamanthine punishments.
He mystifyingly denied, however, that the Constitution's jury trial and reasonable doubt commands prohibited judicial sentencing discretion based on contested facts within a punishment range, which is established by the statute that defined the crime. For instance, if the New Jersey firearms law declared that the judge should impose a sentence close to the maximum of 20 years upon a guilty verdict and a finding that the defendant acted with bigotry or hate, then it would not run afoul of the Constitution. Justice Stevens thus concluded unalarming to the status quo: "Other than the fact of a prior conviction [which has already been proved to a jury beyond a reasonable doubt], any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt."
If that were the whole story, Apprendi would be relatively inconsequential, like a pebble splashing into the ocean. Congress and state legislatures could preserve sentencing discretion by prescribing for all crimes a punishment range from a small fine to life imprisonment accompanied by a specification of facts (e.g., commission of unindicted crimes or even charged crimes that occasioned not-guilty verdicts wanton behavior, malicious motives or illegal narcotics possession above a specified quantity) that, if found by a preponderance of the evidence by the sentencing judge, would direct a penalty in the upper range. But Justice Stevens cryptically warned that Apprendi would not tolerate such exaltation of form over substance; thus, legislatures would be constitutionally prohibited from circumventing the precedent by fragmenting the customary elements of crimes such as murder or robbery with a handful triable to a jury beyond a reasonable doubt under a "guilt" banner and the remainder triable by a judge using a preponderance standard under a "sentencing" rubric.
Further arresting was Justice Stevens' refusal to endorse the constitutionality of longstanding federal sentencing guidelines used by judges to punish within a statutory range with the noncommital observation: "The guidelines are … not before the court."
And Justice Thomas added in a concurring opinion that a "crime" for purposes of the Constitution "includes every fact that is by law a basis for imposing or increasing punishment … Thus, if the legislature defines some core crime and then provides for increasing the punishment of that crime upon a finding of some aggravating fact … the core crime and the aggravating fact together constitute an aggravated crime, just as much as grand larceny is an aggravated form of petit larceny." Justice Thomas also explicitly declined to bless the constitutionality of the federal sentencing guidelines.
Over the past two decades, both Congress and the states were swept by a tide of public disgruntlement with lenient sentencing to enact determinate rules to replace open-ended discretion that enhanced baseline punishments if enumerated aggravating factors relating to the crime or the criminal were found by the sentencing judge under a preponderance test. All of those statutes now sit under a cloud. Further, if Apprendi is applied retroactively, which is a genuine possibility, countless federal and state prisoners would require resentencing. Applied prospectively, the case is likely to prompt unbending sentencing schemes and the ending of judicial discretion in toto, which would migrate to chief executives in the exercise of pardon prerogatives.
Some would deplore such a harsh sentencing revolution. But isn't there something instinctively shocking in the prevailing system that empowers judges (not a jury of peers) to find defendants guilty of uncharged crimes or to second-guess acquittals without proof beyond a reasonable doubt and markedly stiffen punishments and social stigma accordingly? Doesn't that invite an abuse of authority that the rights to jury trial and proof beyond a reasonable doubt were written into the Constitution to prevent?

Bruce Fein is a lawyer and free-lance writer specializing in legal issues.

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