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Undoing Twenty Years of Unconstitutional
Prosecutorial Conduct
The U.S. Supreme Court
Corrects Long-standing Problem
By Terry Brown
Prosecutorial Conduct
The U.S. Supreme Court
Corrects Long-standing Problem
By Terry Brown
The United States justice system is one of the best in the world. The checks and balances truly work to assure that wrongs are eventually made right. That fact has never been clearer than in the light of Wednesday’s opinion of the U.S. Supreme Court in two federal drug cases, U.S. v. Booker and U.S. v. Fanfan in which our nation’s highest court made several holdings that will dramatically change the way justice is meted out at the federal level and will ultimately filter down to the State levels.
In 1984, Congress overhauled the federal justice system with sweeping legislation known as the Sentencing Reform Act, which abolished parole and implemented what became known as Truth in Sentencing laws. A major piece of this legislative effort was the implementation of Mandatory Minimum sentencing for certain crimes and other pieces of legislation meant to be used in what politicos passionately termed the War on Drugs.
Particularly important to this reform was the creation of what many have viewed as a third legislative body – The United States Sentencing Commission, a body consisting largely of federal judges, prosecutors, and others involved in the Justice Department. This new body was given power to create a new mechanism known as The United States Sentencing Guidelines, U.S.S.G., which is a rule book that all parties involved in the U.S. justice system must follow. The key ingredient in this guide is the sentencing grid consisting of base offense levels and criminal history points which determine roughly a six month window within which a federal judge must sentence a defendant.
The stated goal for creating this mechanism was to reduce the disparity in imposed sentences such that criminals involved in the same levels of crime would be given relatively similar sentences – and thus meet the widely held school of thought that the punishment should fit the crime. The elimination of parole was designed to further this leveling of the playing field, because under the old system two defendants who received the same ten year sentence could end up serving dramatically different prison terms. This all made sense at the surface.
The problems began when federal prosecutors began using the new mechanisms within the Sentencing Guidelines in such a way that ultimately the U.S. Constitution’s Sixth Amendment guarantees - that a person charged with a high crime must be found guilty by a jury of his/her peers to every element of the crime and that the burden of proof must be beyond a reasonable doubt – were effectively eliminated.
In other words, if a person kills another person they may be charged with several different crimes each of which allow dramatically different sentences. The facts which differentiate those crimes are called the elements of the crime and each fact must be proven beyond a reasonable doubt in order for a jury to make a guilty finding. An example of such a fact would include whether the act was committed with premeditation – that is to say that the person planned ahead of time to commit the offense – or whether it was done in the heat of the moment. Such a fact would differentiate whether the crime was Murder in the First Degree rather than Murder in the Second Degree and may ultimately mean the difference between life and death for the defendant.
The United States Attorney’s Office began using this new rule book to shift the burden of proof away from “beyond a reasonable doubt” findings by a jury to “by a preponderance of the evidence” findings by a judge. The importance of this paradigm shift can be understood clearly only by looking at a real-life example.
Bob was a successful owner of a small trucking company in Minnesota. Bob also had a wife who was a heavy drug user. Bob, being a successful business man, had a sort of “Sam’s Club” mentality – that it was much smarter to buy his wife’s drug supply in bulk thus eliminating 1) the risk of numerous drug purchases from local street dealers, and 2) the higher cost of buying in small quantities. Bob found a supplier in another state who could provide drugs in bulk at reduced prices. Bob’s dealer was eventually busted and in order to receive a greatly reduced sentence turned over the names of the majority of those who purchased drugs from him. Bob was arrested and charged with possession with intent to distribute, a charge that – depending on the type and quantity of drug would result in a sentence of anywhere between 1 year to life in prison. Bob had been found to be in possession of a small quantity of marijuana – a crime which would have resulted more than likely with a sentence of probation. Bob went to trial in federal court and the prosecutor presented evidence of the marijuana and gave the jury instructions that they must simply make a finding that Bob was found to have “possessed a measurable quantity of a controlled substance.” The jury was specifically instructed that they need not be concerned with the type of drug or quantity involved in the case. The jury convicted Bob of Possession of a Controlled Substance with Intent to Distribute. The U.S. Probation office then submitted to the court the presentence investigation report which made various statements about shipping receipts that demonstrated the weights of packages received by Bob. The report stated that the contents of the packages was cocaine rather than marijuana and even though the weights represented on the packing slips could have represented 90% packaging and 10% drug the report gave the total weight as drug quantity. The statements in the report were routinely adopted by the court under the preponderance standard. Today Bob is in the seventh year of a 22 year sentence. The problem in Bob’s case is that the jury should have been allowed to make findings of the drug type and quantity because those are the elements of the crime which determined his appropriate sentencing range.
These two opinions eliminate the mandate that a federal judge sentence a defendant within a specific Sentencing Guideline range but rather must impose a sentence within the statutory range. These two decisions have no impact on Mandatory Minimum sentences which are statutorily derived. Most importantly, these two opinions restrict facts used to determine a sentence to those facts that were found by a jury beyond a reasonable doubt.
In the light of Booker and Fanfan Bob’s sentence is clearly unconstitutional. Unfortunately for Bob, he is no longer under his direct appeal and has exhausted all of his Habeas Corpus remedies, thus his unconstitutional sentence will be left standing. Bob will die in prison.
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