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| 9th Circuit Airs Arguments on Drug Law Enhancement |
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Posted by FoM on September 27, 2001 at 09:27:34 PT By Jason Hoppin, The Recorder Source: Law.com 
Defending federal drug sentencing enhancements, Assistant U.S. Attorney J. Douglas Wilson was forced to run the gauntlet by several judges Wednesday. He likely emerged victorious, but the case heard en banc by the 9th U.S. Circuit Court of Appeals appears much closer than many anticipated. Three judges hammered Wilson for several minutes, while several others indicated they feel an earlier 9th Circuit decision holding the enhancements unconstitutional was wrongly decided. At issue is a federal drug sentencing law overturned last month by a three-judge 9th Circuit panel in U.S. v. Buckland, 99-30285. Under the U.S. Supreme Court's Apprendi v. New Jersey, 530 U.S. 466, only juries can decide factors which increase a sentence over the statutory maximums. The drug sentencing enhancement law doesn't explicitly say who decides the enhancements, but the 9th Circuit ruled that Congress intended judges to decide them, and so they were therefore unconstitutional. Recently, several other circuit courts allowed the enhancements to remain by shifting the decision to a jury. The 9th Circuit is the only one that did not. Calvin Buckland challenged his 27-year sentence for possession of methamphetamine, which was enhanced over the 20-year maximum by a trial judge. Since it was decided by the Supreme Court last year, Apprendi has provided the basis for many prisoners to appeal their sentences. If the government loses the appeal, its big mistake will likely be conceding that the 9th Circuit could sever Congress' intent from the statute. In its place then, would be a different procedure than what Congress intended -- a troubling proposition for several judges. "Isn't that up to Congress and not the courts?" asked Judge A. Wallace Tashima, the author of the three-judge panel's opinion. "It sounds to me like you're asking us to rewrite the statute," said Judge Stephen Trott, who earlier in the hearing seemed as if he sided with the government's position. "You're asking us to rewrite the statute, aren't you?" "You're severing something that doesn't appear in the language," suggested Judge Stephen Reinhardt, who initially cornered Wilson into the concession. Wilson defended himself. "Severing isn't really the right word to use because there's no explicit language," he said. A couple of judges defended the government's position. "So what? If it's decided by a jury it satisfies the statute," said Judge Ronald Gould, reasoning that since the sentencing enhancement provisions don't say who should decide, a jury could do so without violating the Constitution. Judge Andrew Kleinfeld also joined in, offering that Congress could have talked about requiring judges to handle the enhancements until it was blue in the face, but nevertheless did not write that provision into the law. "If it's not enacted into law, then why are we talking about severing at all?" Also on the panel were Chief Judge Mary Schroeder and Judges Procter Hug Jr., Diarmuid O'Scannlain, Thomas Nelson, Richard Paez and Richard Tallman. Tallman, considered a moderate, clearly sided with the government, consulting his laptop computer while vigorously questioning San Diego Federal Defender Benjamin Coleman. Coleman argued the constitutional issues which have inflamed the legal community, while Buckland's regular attorney, Tacoma, Wash., solo Zenon Olbertz, argued other issues. Tallman suggested several laws would be constitutionally questionable under the reasoning of the three-judge panel. "Counsel, if we rule in your favor, doesn't that call into question at least 40 or 50 other statutes that have a scheme similar to [Section] 841?" Tallman asked. Judge Nelson also appeared amenable to the government's argument. He got Coleman to acknowledge that he was arguing that the statute is "facially unconstitutional," under Apprendi. Then Nelson got Coleman to concede that the statute does not explicitly say that a judge is to decide -- implying that it isn't explicitly unconstitutional. "Isn't that facial?" Nelson asked. "It is overwhelmingly clear that quantity of drugs is meant to be a sentencing factor to be decided by a jury," Coleman said, later adding, "The fact that there is no specific language ... does not mean that Congress had no specific intent." Judge O'Scannlain offered a compromise. He asked whether the court could reduce Buckland's sentence to the statutory maximum of 20 years, and otherwise wait until Congress sorts out the mess itself. Coleman said the court could do that. However, if O'Scannlain, one of the court's more conservative members, refuses to join in deciding any constitutional issues presented in Buckland, it could further cloud the outcome. Related Articles: Reversal Sought on Drug Ruling America's 'War on Drugs' Looks Unfairly Warped Home Comment Email Register Recent Comments Help |
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| Comment #6 posted by bruce42 on September 28, 2001 at 08:09:38 PT |
| First, I would like to thank kapt and Dr. Russo for their eloquence. I do fear for the antis if they dared try an actual debate on these forums. Secondly, I think it is sad that true debate has really become a lost art. When was it only something reserved for a select few governmental elections, and then done only for appearance sake? As I recall, debate shaped the foundations of democracy in the world. Wasn't debate a crucial element of the ancient Greek republic? Maybe it's simply a matter of politics. I guess it is hard to pass anti-social and illogical laws and engage in socially and environmentally destructive policy if someone is constantly nagging you with "questions" and "arguements". There's always hope, I guess. http://www.nipissingu.ca/department/history/muhlberger/histdem/index.htm#chronpag [ Post Comment ] |
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Comment #5 posted by kaptinemo on September 28, 2001 at 07:29:47 PT:
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| "Forget random drug tests, we need random common sense evaluations. I seriously doubt that a majority of elected officials would be able to retain their positions if they actually had to make choices based on reason and fact rather than bribes from big business and religious right lobbies." And there's the rub; proving a lack of mental ossification. which, sadly, many pols never could pass; they are creatures of habit like the rest of us, but because of their positions, their negative habits cause even more widespread damage. Just look at ol' Asa; he's happy as Aristotle's pig to remain oblivious to the history of the DrugWar. He's sublimely ignorant, not even knowing the 'legal' basis for the position he was so generously 'rewarded' with. During the debate with Guv Johnson, Asa was asked about the Constitutionality of using the Commerce Clause to try to control illicit drugs; he hadn't a clue as what he was being asked about. Totally lost at sea, the sail is ripped and the rudder gone. Clueless As they used to say at Fort Gordon "'At poor bastid is just ate up with ignorance." And for them to become enlightened is for them to realize they've been wasting enormous amounts of time, effort and money - and ruining people's lives - in a fool's errand. Hence their adamant refusal to debate us in earnest; at DEAWatch they were absolutely livid that he would even 'stoop' to doing so. But behind their anger was the ice-cold, fast-running stream of fear: what if a real damaging (to them) debate did break out, and the call for review of the efficacy of the DrugWar...and DrugWarrior's efforts...were to catch on, and more people around the country demanded such debates? We know what would happen next, and why. And that's why they are moving Heaven and Earth to try to stick us with the unearned name of terrorist, and to claim that to even suggest reform is to exhibit traitorous behavior. They know it's do or die; they know that many pols are privately against the Drugwar, but because of the political capital and inertia that's been built up over the years, they dare not speak out now. But when the inevitable questions arise about the funding of terrorism via the drug trade, the antis may eventually be forced to explain their failures. At the risk of seeming Pollyanna-ish, we may yet see some good come from this awful tragedy in New York and DC. But as usual, not before lots more die un-necessarily [ Post Comment ] |
| Comment #4 posted by dddd on September 28, 2001 at 00:18:25 PT |
| .....Ethan,,,,,I'm giving you the Seven Hundred Thousand Dollar Award for Excellence in commentary!..You deserve more.........I hope you wont mind if I pay it to you later...The award fund has come up a bit short lately,,,................
..........
.......but seriously,,you are right on!..............Cheers..........dddd [ Post Comment ] |
| Comment #3 posted by Poisoned1528Days on September 27, 2001 at 23:30:18 PT |
| and jail conditions should be civilized.
In a civilized society you should only be able
to deny a man his freedom. Subjecting
a man to barbaric living conditions
is a form of torture. [ Post Comment ] |
| Comment #2 posted by bruce42 on September 27, 2001 at 20:28:54 PT |
| How can putting a man in a small room with other drug users for a third of his natural life be considered rational policy? And to think people actually consider this country to be civilized! Judge- "Well Cal, we're sorry, but you were caught with some drugs, and although you managed to not hurt anyone, including yourself, I just can't see 20 years of your life and hundreds of thousands of wasted tax dollars fixing the problem you have with holding drugs. We'd best make sure you get the help you need by exposing you to more drugs for a longer period and wasting an extra 100 grand. See you in 27 Cal! Be sure to write!" Forget random drug tests, we need random common sense evaluations. I seriously doubt that a majority of elected offcials would be able to retain their positions if they actually had to make choices based on reason and fact rather than bribes from big business and religious right lobbies. [ Post Comment ] |
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Comment #1 posted by Ethan Russo MD on September 27, 2001 at 10:05:38 PT:
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| This is an interesting legal discussion, but it is actually ignoring the more important issue. Until someone can demonstrate that keeping people in jail longer enhances public safety or has other tangible benefits to society, it is difficult to see how our society's situation will improve. Mandatory minimums are another "feel good" policy advanced by politicians in their perception that the public wishes to "get tough on crime." True reform requires that judges judge; that is, decide punishment based on the particulars of the case. That requires thought and reflection, two exercises in short supply in our government of late. Want to reduce crime? How about eliminating "crimes" that are not? This would eliminate most of the drug laws. Let the concept of personal responsibility reign supreme. Want to drink (over 18)? Sure, you can! Just don't plan on driving, or expect that to be an excuse when you mow down pedestrians. Want heroin? You can have that, too, but will have to get it from a medical facility where the supply is clean, and the needles are, too. Death, disease and crime will plummet. How about making prison for those violent offenders who actually need to be there a true vocational or educational experience? How about using the burgeoning incarceration budget for economic development of real jobs with a future? When society offers better opportunities to those who are desperate, fewer will choose to transgress. Refexively locking them up longer has been needlessly expensive and counter-productive. [ Post Comment ] |
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