The Meaning of Fifth and Sixth Amendment Rights: Sentencing in Federal Drug Cases After Apprendi v. New Jersey and Harris v. United States

• Jurisdiction: United States,Federal
• Publication year: 2010
• Citation: Vol. 20 No. 3

The Meaning of Fifth and Sixth Amendment Rights: Sentencing in Federal Drug Cases after Apprendi v. New Jersey and Harris v. United States

Derrick Bingham

Introduction

In June of 2000, the U.S. Supreme Court dramatically altered the sentencing practices of both state and federal courts for many offenses with its five-to-four decision in Apprendi v. New Jersey.[1] Commentators hailed the decision as revolutionary and speculated about the effect it would have on sentencing in a broad range of cases. [2] In Apprendi, the Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."[3] Apprendi joined a long line of cases in which the Court has struggled to give meaning to the word "crime" and what constitutes its elements.[4] More specifically, the case seemingly "put to rest" the debate over the legislature's power to diminish criminal defendants' constitutional rights through labeling certain findings as "sentencing factors."[5] However, the Court left open several loopholes through which legislatures could evade Apprendi's constitutional protections by creatively redrafting statutes.[6] For example, Justice O'Connor argued in her dissent in Apprendi that legislatures could circumvent the rule simply by redrafting statutes to include higher maximum penalties and utilizing mandatory minimums to control the judge's discretion.[7]

Almost two years later, in Harris v. United States,[8] the Court was presented with an opportunity to close the very loophole Justice O'Connor spoke of by extending Apprendi to mandatory minimum sentences, thus overruling its pre-Apprendi decision in McMillan v. Pennsylvania[9] in the process.[10] In McMillan, the Court held that it was constitutionally permissible for a judge to find at sentencing, by a preponderance of the evidence, the facts necessary for imposition of the mandatory minimum sentence.[11] In Harris, however, the Court refused to extend the scope of Apprendi to mandatory minimum sentences and limited Apprendi's application to the letter of its holding; thus, the Court arguably rejected a logical extension of Apprendi and allowed this particular loophole to remain open.[12]

Regardless of whether Apprendi, as understood in light of Harris, has proven to be as revolutionary as some expected, its effect on sentencing in federal drug cases under 21 U.S.C. Sec. 841 is undeniable. [13] Section 841 functions well as a case study because it contains sentencing factors that implicate increases in both the maximum sentence and the mandatory minimums.[14] The statute is one of graduated sentences; it creates a base offense and punishment and then increases the punishment based upon aggravating circumstances.[15]

The structure of the statute is as follows: Section 841(a)(1) makes it a crime "to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance."[16] Section 841(b)(1)(C) sets "[t]he default maximum prison term . . . for [most] Schedules I and II controlled substances [at 20] years,"[17] meaning that the judge, guided by the Federal Sentencing Guidelines, may sentence an offender for only up to 20 years without a finding of (1) the type and quantity of the drug possessed, (2) serious injury caused by the drug, or (3) certain prior convictions.[18] The default maximum prison term for possession of marijuana, hashish, and similar drugs, as well as most Schedule III drugs, is five years under Sec. 841(b)(1)(D).[19] Section 841(b)(2) and paragraph (3) set out the maximum penalties for Schedule IV controlled substances[20] and Schedule V controlled substances.[21] Under Sec. 841(b)(1)(A) to subparagraph (D), as well as subsection (b)(2) to paragraph (3), the convicted offender can receive more prison time based on three factors: the type and quantity of the drug possessed,[22] a prior conviction for a "felony drug offense,"[23] or serious injury to another person caused by the drug.[24]

"Prior to Apprendi, the circuit courts consistently held that the sentencing schemes set out in Sec. 841 were ‘sentencing enhancements' and not elements of the offense."[25] Thus, the jury only had to find beyond a reasonable doubt "whether the defendant [had] possessed, manufactured, or distributed a controlled substance," and the judge could determine, by a preponderance of the evidence, the type and quantity of the drug.[26]

For example, assume a defendant had a prior felony drug conviction and the government believed that the defendant had possessed with intent to distribute one kilogram of heroin. Assume further that the person to whom the defendant distributed the heroin died as a result of taking it. Applying the pre-Apprendi law under Sec. 841, the following could happen: (1) The jury convicts the defendant of possession with intent to distribute a Schedule I controlled substance, meaning that the maximum time the defendant could spend in prison without additional findings is 20 years; [27] (2) The judge finds by a preponderance of the evidence that the defendant possessed one kilogram of heroin invoking the Sec. 841(b)(1)(A) range of ten years to life in prison;[28] (3) The judge finds by a preponderance of the evidence that the defendant had a previous felony conviction, which raises the minimum to 20 years;[29] or (4) Finally, the judge determines by a preponderance of the evidence that the defendant's customer died after taking the defendant's drugs, which invokes a mandatory life sentence. [30] Consequently, the defendant went from a maximum of 20 years in prison to a mandatory life sentence without the benefit of a jury finding or a finding based on a beyond a reasonable doubt standard.[31]

This Note explores the importance of the issue of legislative labeling of sentencing factors and elements, and the Court's attempts alternately to control it and expand it through constitutional and statutory interpretation, especially in the recent cases of Apprendi and Harris. This Note illustrates the issue by examining how courts have applied these decisions to sentencing under Sec. 841 and how sentencing practices changed after Apprendi and Harris. Part I will review the pre-Apprendi cases that continue to affect the Court's policy on sentencing factors in general, by illustrating the Court's dynamic view of the discretion legislatures should be given in defining elements of crimes.[32] Part II will examine Apprendi itself and the approaches taken in applying it to drug cases in the Federal Courts of Appeals.[33] Part III will briefly look at two recent post-Apprendi decisions, Ring v. Arizona[34] and United States v. Cotton,[35] leading up to a discussion in Part IV of Harris v. United States and its controversial, contradictory, and important holding.[36] Part IV will also observe the impact Apprendi and its progeny have had on sentencing under Sec. 841 after Harris, as well as what impact these cases could have had if the Court had decided Harris differently.[37] This Note will conclude that Apprendi fundamentally changed sentencing in federal drug cases, but the Court's later decision in Harris weakened the impact.[38]

I. Before Apprendi: Winship to Jones

A. Laying the Foundation: The Due Process Clause, In re Winship, and the Problem of Legislative Labeling

The Fifth Amendment to the United States Constitution guaranties that "[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . . nor be deprived of life, liberty, or property without due process of law."[39] The Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . ."[40] Exactly what these constitutional guarantees mean to sentencing has been a source of controversy in the Court for decades.[41]

Every discussion of Supreme Court sentencing jurisprudence must begin with In re Winship,[42] which began as a simple juvenile court case but became the constitutional foundation of modern sentencing practices.[43] The question presented in Winship was whether the law entitles a juvenile to proof of delinquency beyond a reasonable doubt when the act charged "would constitute a crime if committed by an adult."[44] However, before holding that the law entitles a juvenile to such a finding, Justice Brennan, writing for the majority, found it necessary to erase any doubt as to the constitutional importance of the beyond a reasonable doubt standard.[45] The Court explicitly held that "the Due Process Clause [of the Fourteenth Amendment] protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged."[46] This was the first time that the Court explicitly held that the Constitution required the beyond a reasonable doubt standard.[47]

After Winship, a question remained as to what extent a legislature could circumvent the Winship rule by redefining via statute what constitutes a "fact necessary to constitute [a] crime."[48] The Court weighed in on this question in Mullaney v. Wilbur.[49] There, the Court unanimously struck down a Maine statute that created a base offense of "homicide" and a presumption that any intentional homicide the defendant committed was with "malice aforethought," and therefore murder, unless the defendant could prove that he committed it "in the heat of passion on sudden provocation," in which case the crime is manslaughter.[50] The State argued that Winship should be limited to facts that were required for the defendant to be guilty of any crime, not facts that simply raised or lowered the level of the offense.[51] The Court characterized the State's argument as reducing Winship to "formalism."[52] The Court recognized the constitutional...