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.
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