Mandatory Minimum Sentencing Laws Under Threat

The 9th U.S. Circuit Court of Appeals in San Francisco ruled it is unconstitutional for judges to add more years to drug traffickers' sentences based on post-conviction hearings. This may mean that mandatory minimum sentencing will be repealed.
A three-judge panel of the 9th US Circuit Court of Appeals in San Francisco ruled that it is unconstitutional for judges to add more years to drug traffickers' sentences based on post-conviction hearings not heard by a jury. In a 2-1 ruling on August 9, the panel struck down sentencing provisions in the 1984 Controlled Substances Act. Under the act, prosecutors could present evidence of the quantity of drugs in question during post-conviction hearings subject to a lower standard of proof than required for convictions. Judges -- not juries -- would add time to sentences based on the amount of drugs prosecutors claimed were involved.

Mandatory minimum sentences are included in those provisions of the law struck down by the federal appeals panel.

The ruling came in the case of US v. Buckland. Calvin Buckland of Tacoma, Washington, was convicted of possession of methamphetamine with intent to distribute. Under federal law, the maximum sentence for most trafficking cases is 20 years, but the trial judge in Buckland's case sentenced him to 27 years after finding in a post-conviction hearing that he possessed 17 pounds of the drug.

"The Constitution says we have a right to trial by jury, to have decisions that affect penalties determined beyond a reasonable doubt," Buckland's attorney, Zenon Olbertz told the Associated Press.

The 9th US Circuit Court of Appeals panel agreed, relying on a case decided by the Supreme Court last year, Apprendi v. New Jersey, which struck down a sentence enhanced by a post-conviction finding. In Apprendi, the court ruled that sentencing enhancements exceeding statutory maximum sentences must be proven by a jury

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"The District Court erred by sentencing Buckland on the basis of a drug quantity finding that was not submitted to a jury and established beyond a reasonable doubt," said the appeals court opinion.

"This affects thousands of cases ... which otherwise would be charged with higher penalties," San Francisco federal public defender Barry Portman told the AP.

The 9th US Circuit Court of Appeals ruling holds for the states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. But it also puts the 9th Circuit in conflict with rulings from four other circuits, which have upheld the 1984 sentencing provisions despite Apprendi. Such conflicts are typically resolved by the Supreme Court.

But before that happens, the 9th Circuit ruling must survive a challenge from the federal government. Moving quickly, US Solicitor General Theodore Olson late last week authorized federal prosecutors to seek a rehearing of the panel's ruling.

Ironically, the 9th Circuit panel made use of Justice Sandra Day O'Connor's dissent in Apprendi to extend Apprendi's logic beyond where the Supreme Court has so far been willing to go. In her dissent, O'Connor wrote that, in Apprendi, the majority opinion's "reasoning strongly suggests" that mandatory minimum sentence schemes are unconstitutional and that "in light of the adoption of determinate sentencing [mandatory minimum] schemes by many States and the Federal Government, the consequences of the majority's rule in terms of sentencing schemes invalidated by today's ruling will likely be severe."

Citing O'Connor, as well as a similarly anguished dissent by Justice Breyer (who sat on the panel that drafted the original sentencing guidelines in the mid-1980's), the 9th Circuit panel noted: "[W]e agree with Justice Breyer and O'Connor that the majority rule in Apprendi renders the sentencing scheme in 841 (b) [the controlled substances act] unconstitutional."

Mandatory minimums, as well as as post-conviction sentencing enhancements, are now on increasingly shaky constitutional ground.Ma