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Evolving Issues in Criminal Defense
Federal Law The United States Sentencing Guidelines are no longer mandatory. Until January 2005, the United States Sentencing Guidelines were mandatory, and, except for extremely unusual circumstances, federal judges had no choice but to impose a sentence from within the Guideline range. United States v. Booker, decided by the United States Supreme Court, held that the mandatory nature of the Guidelines violated the Sixth Amendment right to trial by jury. The remedy was to make the Guidelines advisory rather than mandatory. Many circuit courts have held that sentences which fall within the “advisory” Guideline range are presumptively correct. The Supreme Court agreed to hear a case addressing this presumption in Rita v. United States, No. 06-5754, and it was argued in February 2007. To follow this case or any other in the Supreme Court, go to www.supremecourtus.gov. Separation of Powers: A Booker Challenge to Statutory Minimum Sentences The Booker decision has opened the door to challenge mandatory minimum sentences required by certain federal statutes, including drug and gun offenses. One argument presented in several appellate courts is that mandatory minimum sentences violate the Separation of Powers required by the Constitution. Consider this: a prosecutor, representing the Executive Branch of the government, may choose to charge you with being a felon in possession of a handgun and possessing that handgun during a drug transaction. If you have three prior drug felonies or violent crime convictions, you may qualify as an “Armed Career Criminal,” which means a mandatory minimum sentence of 15 years for being a felon in possession of a firearm. Added to that 15 years is an additional mandatory minimum sentence of 5 years for possessing that same gun in that same moment during the drug transaction. The mandatory minimum sentences are products of Congress, the Legislative Branch of the government. Under this scenario, the judge, representing the Judicial Branch of the government, has no authority whatsoever to impose a sentence shorter than 20 years–despite Booker’s insistence that judges consider various factors, including the history and characteristics of the defendant, and impose sentences “sufficient but not greater than necessary” to satisfy the goals of sentencing. Appellate courts which have considered post-Booker challenges to statutory mandatory minimum sentences have rejected the Separation of Powers argument. Until the Supreme Court decides the issue, however, it remains an issue to consider raising. The Crack Cocaine and Powder Cocaine 100:1 Disparity: Under federal law, drug offenses involving 5 kilograms or more of powder cocaine carry a mandatory minimum sentence of 10 years. Drug offenses involving 50 grams of crack cocaine carry that same mandatory minimum of 10 years. Five grams of crack requires a 5-year sentence, while it takes 500 grams of powder to trigger a 5-year mandatory minimum. This disparity has been challenged in the courts numerous times, frequently under the Equal Protection Clause of the Fifth Amendment, and each challenge has failed. There is now bipartisan interest in Congress in reducing the sentencing disparity. Particularly notable is H.R. 460, the Crack Cocaine Equitable Sentencing Act introduced by Representative Charles Rangel, D-NY, in January 2007. Until Congress acts, however, the disparity will remain.
Tennessee Law Cunningham v. California’s Effect on Tennessee Sentencing In January 2007, the United States Supreme Court held in Cunningham v. California, 127 S.Ct. 856 (2007) that a state sentencing law that allowed judges, rather than juries, to find aggravating circumstances that would expose a defendant to an elevated upper term sentence violated the right to a trial by jury. Following that decision, the Supreme Court vacated the judgment in State of Tennessee v. Gomez, in which the Tennessee Supreme Court had held that Tennessee’s sentencing scheme is constitutional. Gomez has been remanded for resentencing in light of Cunningham, but with no specific instructions on curing Tennessee’s sentencing law. Expungement of Criminal Records Under current Tennessee law, certain criminal convictions may be expunged, but only if expungement upon completion of the sentence was part of the plea agreement. In the 2007 session of the Tennessee legislature, bills were introduced in both the House and the Senate which would allow expungement of certain criminal convictions even if expungement is not part of the plea bargain. If any of the multiple versions of the proposed law passes, defendants will have an opportunity for a true “fresh start” after completing their sentences. Tennessee Considers Law Requiring Mandatory In the Tennessee legislature’s 2007 session, several bills were introduced which would increase the punishment for certain gun crimes. One proposed law would require a five-year mandatory minimum sentence for convicted felon who possesses a handgun. Under the proposal, judicial diversion or probation would not be permitted. The proposal also calls for a 12-year mandatory minimum sentence for a felon who possesses a handgun with the intent to use it in the commission of another offense or to escape from an offense. If the gun is actually used in the commission of, or escape from, an offense, the bill calls for a mandatory minimum sentence of 20 years. If this bill is passed into law in its present form, Tennessee would punish certain gun crimes more severely than does federal law.
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Decisions by the courts and the legislatures, both federal and state, impact the criminal justice system in both positive and negative ways. In the last two years, we have seen the United States Supreme Court issue decisions which better protect a defendant’s right to confront witnesses (Crawford v. Washington) and a defendant’s right to trial by jury on certain sentencing enhancements (United States v. Booker, Blakely v. Washington). Creative defense lawyers use these decisions–and any others that stem the erosion of our constitutional rights–to challenge laws and procedures that threaten to take away our clients’ freedom. The following summarizes a few issues of interest which are evolving in both state and federal law.