- The Washington Times - Tuesday, December 25, 2001

Faster than a Yehudi Menuhin cadenza, criminal justice gallops from a procedural oasis to a wasteland between trial and sentencing. During trial, a defendant enjoys a queenly array of procedural safeguards pedestaled on our moral conviction that enabling some of the guilty to go free is preferable to risking conviction of the innocent: the right to jury trial and unanimity with jurors a cross section of community peers; proof beyond a reasonable doubt; the right to confront accusers and to call exculpatory witnesses; and the right against compulsory self-incrimination.

Sentencing, in stunning contrast, characteristically witnesses law in freestyle. Judges routinely make findings of fact by a preponderance of shaky evidence that escapes a defendant's cross-examination. Those facts are then employed to transform punishments from mild to Rhadamanthine. For instance, federal judges entrusted with sentencing pursuant to sentencing guidelines regularly find defendants guilty of the crimes of perjury or obstruction of justice in summary proceedings to enhance punishments above statutory baselines.

The arresting incongruence between the opulence of safeguards during trial but a penury during sentencing occasioned the Supreme Court's decision last week to review the ruling of the 4th U.S. Circuit Court of Appeals in William J. Harris vs. United States.

The federal criminal code prohibits carrying a firearm in connection with a drug trafficking offense. Further, if the firearm is “brandished,” a minimum prison term of seven years is mandated. Harris was indicted, tried and convicted beyond a reasonable doubt of the code crime. At sentencing, the judge determined that Harris was also guilty of “brandishing” a gun, and thus saddled him with the mandatory minimum prison term. The court of appeals denied that the judge's finding violated the defendant's constitutional rights to a jury trial and proof beyond a reasonable doubt. The Supreme Court has agreed to review those twin issues.

The stage was set for the Harris case by the Supreme Court itself in Apprendi vs. New Jersey (2000). There, a razor-thin 5-4 majority held that any fact, other than a prior conviction, that increases a legislatively prescribed maximum punishment to which a defendant can be exposed must be found by a jury and proven beyond a reasonable doubt. In Apprendi, for example, New Jersey statutes capped punishment for possessing a firearm with an unlawful purpose at 10 years in prison. But the cap could be doubled if a judge found by a preponderance of the evidence that the defendant was also guilty of a hate crime, i.e., inspired to intimidate an individual or group because of race, color, sex, handicap, religion, sexual orientation or ethnicity. Justice John Paul Stevens, writing for the majority, declared the post-trial hate crime accusation tantamount to a new criminal charge that unconstitutionally circumvented a defendant's jury trial and due process rights if determined by a judge and without proof beyond reasonable doubt. The post-trial proceeding was akin to a jury conviction for petty larceny followed by a hearing before a judge who finds grand larceny by a preponderance, including hearsay and other dubious evidence escaping cross-examination, that rockets punishment from probation to long years behind bars.

Justice Stevens' opinion was no liberal lark. Associate Justices Antonin Scalia and Clarence Thomas penned concurring opinions highly skeptical of penalty enhancements under the federal guidelines.

They are sparked by findings of adverse conduct by a defendant, including crimes uncharged in the indictment and unproven to a jury, made by a judge without trial safeguards, such as the reasonable doubt standard of guilt.

The Scalia-Thomas skepticism seems persuasive. We demand a jury trial and overwhelming proof of guilt in criminal cases to prevent government oppression, persecution or harassment. The twin rights of the defendant operate by requiring each element of a crime to be found by a cross-section of his peers in the vicinage; and, by defining a criminal element as any fact that substantially increases the community stigma or punishment of the misconduct, like raising a crime from a misdemeanor to a felony, or from negligent homicide to first degree murder.

The federal guidelines and sister state sentencing rules, however, bristle with punishment enhancements pivoting on allegations of grave criminal wrongdoing that are tried by judges in proceedings denuded of procedural protections. Take the following vignette. A defendant, indicted and convicted of possessing obscenity, is accused by the prosecutor during sentencing of obstruction of justice. It is charged in affidavits submitted by several neighbors that countless obscene photographs in the car trunk of the accused were burned to hide the crime. The judge believes the affidavits, declares that the defendant's courtroom demeanor and denial of the neighbors' accusations prove a shifty and treacherous character. The judge thus toughens the punishment for obscenity possession from 90 days in jail to five years in prison.

Aren't such sentencing-enhancement hearings new criminal trials traveling incognito? Why shouldn't they command the same constitutional protections for the defendant? And what is the sense of procedurally scrupling over a defendant's guilt or innocence of crime, yet turning procedurally nonchalant over whether the punishment is trivial or harrowing?

Bruce Fein is general counsel for the Center for Law and Accountability, a public-interest law group headquartered in Virginia.

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