Apprendi revisited

Blakely v. Washington

By G. Patrick Callahan, Prisoner of the Drug War

Just when you thought Apprendi was dead and stinking comes the latest attempt at CPR of the American criminal justice system. If you're like me, you are sick and tired of hearing about the "landmark" Apprendi v. New Jersey(1) case in 2000, which should have blown open the doors on the essential farce called the Federal Sentencing Guidelines.

Apprendi opened no doors -- not after the circuit judges got through twisting it out of shape. They put Apprendi through the blender and shredded it so as to afford no relief to the million-plus inmates sentenced too harshly under the scheme. Scheme, by the way, is the operative word here.

Apprendi defends a core idea in United States law establishing that a trial jury must find all facts known to exist in order to subject a defendant to a legally prescribed punishment. Appallingly, one appellate court after the next squeezed Apprendi's rationale through the eye of a legal needle no argument could thread. It's what they do, these so-called Guardians of the Constitution. Add a pinch of Teague v. Lane and a dash of 'harmless error' and, voila; even if your argument, however valid, isn't barred by non-retroactivity, it wouldn't matter anyway because, well, it just doesn't, so there.

I'm not sure when the courts decided it was just peachy for the Bill of Rights to be applied intermittently, and that if by constitutionally aberrant decisions the defendant loses out, it's just too damned bad. It's one of the many reasons why this system has collapsed. Yet the legal mavens in federal courts - whether appellate or district - have enjoyed and prospered from the status quo.

State and federal courts have sentenced people to inordinate amounts of prison time, millions of years of prison time at astronomical expense, thus ruining millions of lives, without so much as batting a tear-filled eye. Many of these judges are political conservatives who deeply and sincerely feel that no amount of punishment can ever be enough. It's been the Republicans, especially, who have salted the federal judiciary with appointees bearing just this mindset.

President Reagan, alone, successfully installed five hundred federal judges. Other Robed Ones are simply craven -- they saw which way the river was flowing and just went downstream and down the drain, easier by far than bucking the system. "My hands are tied" is their worn out song, and when they finally 'cop it' in preparation to be judged by the Man In The Sky, do they think it would make a fine last ditty on their tombstones? Gee, my hands were tied. But no, they actually weren't.

Apprendi is arguably one of the most sensible decisions the Rehnquist court has made thus far and ought to have been broadened, not closed down by these most Supreme judges. Apprendi's principles are easily grasped: a defendant has a Fifth Amendment right to be charged -- by indictment -- for that which will abridge his liberty. He has a Sixth Amendment right to be notified of the charge in order that he may defend himself against it in court. He has the right to trial by jury and to have the jury make a finding beyond a reasonable doubt as to his guilt or innocence.

This isn't rocket science. There's nothing arcane or unintelligible about these mandates, but so-called "sentencing enhancements" written into the current Federal Sentencing Guidelines circumvent all of these basic rights which were placed into the Constitution in an era of common sense by Founders leery of unbridled power. Constitutional framers Jay, Madison and Jefferson, were they resurrected today and shown the current system, would no doubt dive back into their graves.

Under current Federal Sentencing Guidelines, once you are convicted of the predicate (underlying) offense, or if you have pled guilty to it, at sentencing the judge -- goaded by the prosecutor -- can "enhance" (that is, "increase") your sentence literally by decades. In the first place, in many categories and especially for drug offenses, the punishment level is already set far too high by a faulty system that incorporates easily manipulated drug quantity to "find" the level.

The jury doesn't do this, and even in a plea agreement it's very seldom written understanding that the defendant is going to be hit with an additional and often hypothetical drug amount after the jury is dismissed. After that, the courts pile it on with further enhancements such as role in the offense, obstruction of justice, and gun possession - on and on it goes.

Enhancements can and often do exceed the punishment for the predicate offense and are handed out without the defendant having been indicted for them. This violates the Fifth Amendment no matter what goofy, whimsical, transitory holdings the circuit judges adhere to about "sentencing factors" vs. "elements of the offense," distinctions difficult to make and which seem to be little more than nonsensical quibbling.

What is this arrogant and errant nonsense? Any official action which deprives a citizen of freedom, anything which increases one's punishment, must be held to the minimal constitutional standard of charge (indictment), notice of the charge and the chance to defend oneself in court.

My life's experience teaches me that the federal courts arrived where they are today through massive legal conceit, propagated in halls of justice manned by judges appointed for life, Harvard and Yale lawyers with a misplaced priestly pride that easily embraces all that is cynical and evil. The amount of word bending which has ensued since Apprendi promises to make anyone with a modicum of reading skill deeply contemptuous of the courts at every level. The Great Robed Ones could have hacked a legal, constitutional path out of the current wilderness many times -- and especially post -- Apprendi.

Enter the current case. In Ring v. Arizona(2), the Supreme Court utilized its Apprendi rationale to reason that after conviction of murder, it was improper for the judge, rather than the jury, to find mitigating or aggravating circumstances which would either keep the defendant off death row or place him there, waiting to die. The Supremes ruled that judges can no longer make these findings by the so-called "preponderance of the evidence" standard, but rather, it must be made by the "beyond a reasonable doubt" standard, by the jury, and based upon evidence admissible in court.

Hence, the US Supreme Court Justices stand once again for the public record in opposition to hearsay, innuendo, paid-for testimony and all the extra-judicial pollutants commonly ingested by a diligent judge, often just whatever is provided to him by the prosecutor and the probation office.

When the Ring decision was made, experienced jailhouse lawyers assumed the rationale must naturally and necessarily flow downward to all cases. We thought it wouldn't just be applied to death penalty cases. With Apprendi before, Ring now, was it irrational to expect that a judge finding someone "guilty" of sentencing enhancements would be barred from doing so under the 'preponderance of the evidence' standard?

Although the level of punishment is vastly different between death and a two-year addition to a sentence by enhancements, the Constitutional principle is, without a doubt, the same. Most of us who do legal research in prison can find many reported sentencing decisions based on judges currently, but improperly, using inadmissible information to make the enhancing decision. As we know, virtually anything can get into a Pre-Sentence Report, including outright perjury.

Blakely v. Washington(3) will address whether the principle in Ring applies broadly across the criminal justice system. I'm of the humble opinion that it obviously should apply, and any attempt to uncouple the principle from non-capital cases would be inconsistent and disingenuous. So here is the chance for Justice Anthony Kennedy to put his credibility, his personal integrity, where his mouth has been recorded over the last few months in national headlines.

Kennedy recently addressed an American Bar Association gathering, and from the podium assured his lawyerly listeners once and for all that the Sentencing Guidelines were too punitive. Kennedy said that if Congress wouldn't fix the problem, the courts would do so through case law. While I'm reasonably confident that Mr. Kennedy will line up in favor of Blakely, I'm less confident that lower-ranking, circuit judges will then grant any relief to petitioning prisoners.

There is the matter of retroactive effect. Foremost, the Supreme Court would have to make Blakely an unequivocal standard, a brightline rule of constitutional law or substantive rule. The Supreme Robed Ones should declare this standard plainly and unequivocally to cowering appellate judges since, for them, anything less than an outright statement to that effect will presumably let them continue to hedge and err out of fear of what's really expected of them. I'm not optimistic.

Perhaps the recent schism and sparring between John Ashcroft's Department of Justice and the courts might help crystallize the issue. If I was a federal judge, I'd be mighty upset knowing that Ashcroft's men were making a list of discretion using judges and checking it twice to see which ones are naughty and which ones are nice.

The Department of Justice has not only run defendants against the wall, but also plenty of learned jurists. But who really has the say here? Who will really shape the criminal justice system from this point on?

Personally, but regrettably, I'd bet on Ashcroft and his boys -- they really know how to stick it to everyone and damn the consequences. Odds don't favor this current gaggle of contented courtroom cluckers, many of whom quietly began ignoring, long ago, their 'third leg of government' duty to check the out-of-control Executive branch. We've seen that for fifteen years now.

Footnotes:

1. Apprendi v. New Jersey, 530 US 466 (2000)
2. Ring v. Arizona, 153 L. Ed 2d 556 (2002)
3. Blakely v. Washington, 02-1632

For recent Apprendi updates online, visit, www.famm.org, www.nacdl.org and www.fedcrimlaw.org.