The National Pulse

Menu: Wine, Beef and Pot


The U.S. Supreme Court opens its term in October with wine, beef and marijuana on the fall menu.

And if that is not enough to raise eyebrows, the justices will also be pondering wheth­er a drug-sniffing police dog should be seen as a snooping officer or just a curious animal with an acute sense of smell.

But before getting to those boutique cases, the court will focus on two pressing matters of criminal law: the fate of federal sentencing guidelines and the future of capital punishment for teen-age murderers.

On the first Monday in October, the justices will hear two cases to decide whether the 20-year-old U.S. sentenc­ing reform law is unconstitutional because it allows judges, acting alone, to find the defendant guilty of a more serious crime and to add to the prison term. The court’s June 24 ruling in Blakely v. Washington, No. 02-1632, has forced a major rethinking of sentencing guide­lines. Until recently, the tradi- tional view has been that prosecutors charge a defendant with a crime, the jury decides whether he or she is guilty, and if so, the judge imposes a sentence.

But in Blakely, the 5-4 majority said the right to a jury trial goes beyond the simple question of guilt or innocence. Other than a prior conviction, any fact that increases the penalty for a crime must be proven before a jury or specifically admitted by the defendant, the court said, voiding the state’s sentencing system.

That simple statement has thrown a wrench into the machinery of the federal courts, and many state courts as well. Each week, about 1,200 defendants come before a federal judge for sentencing, and the federal guidelines say the judge should decide the aggravating factors that call for more prison time.

Consider the case of Ducan Fanfan, a drug dealer from Maine. He was arrested at a Burger King restaurant with more than 500 grams of cocaine for sale. A jury later convicted him of that offense, which called for about six years in prison under the federal guidelines. On June 28, four days after the Blakely ruling, he came before U.S. District Judge D. Brock Hornby in Portland. Citing a pre-sentenc­ing report, the judge said Fanfan was the leader of a drug-selling gang and had far more cocaine–2.5 kilograms–than was reflected in the indictment.

Based on these factors, the U.S. sentencing guidelines said Fanfan deserved a 16-year term in prison. However, Hornby concluded it was unconstitutional for him to apply the federal guideline enhancements because they had not been proven before the jury, and he gave the defendant 6.5 years in prison based on his original conviction alone. The Justice Department appealed, and the court will now take up the case of U.S. v. Fanfan, No. 04-105, and a companion case, U.S. v. Booker, No. 04-104, to decide two questions: Is it un-constitutional for a federal judge to impose “an enhanced sentence?” And if so, are the U.S. Sentencing Guide-lines void entirely?

Usually, govern-ment lawyers try to save as much of a challenged statute as possible by arguing that the bad parts can be severed. In this case, however, government lawyers say they would prefer the court to strike down the sentencing guidelines entire-ly. The worst out-come would be to void only enhanced sentences, they say. That result “could produce absurdly low sen-tences for very serious conduct,” said acting Solicitor General Paul Clement.

For example, the guidelines say a simple fraud conviction would send the perpetrator to prison for no more than six months if the judge was not allowed to consider the magnitude of the losses that resulted from the fraud, Clement said. This makes a mockery of the sentencing reform law, he said, adding that it would be better to free judges entirely from the guidelines and go back to pre-1984. Then the judge would be free to impose a sentence somewhere between the minimum and maximum set by underlying criminal law, he argues.

How Young Is Too Young?

Also coming before the court this fall will be the issue of imposing the death penalty for juvenile murderers. Four justices–John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer–have already said that executing a youthful murderer is “shameful” and “a relic of the past.” The case of Roper v. Simmons, No. 03-633, to be heard Oct. 13, tests whether one or more of their colleagues will join them and forbid capital punishment for those who were under age 18 at the time of their crime.

“The United States is the only country in the world that regularly executes juvenile offenders,” Amnesty International told the court. Since 1990, only the Congo, Iran, Nigeria, Pak­istan, Yemen and Saudi Arabia have carried out executions of underage murderers, but all of them have since disavowed the practice. For its part, the Supreme Court in 1989 narrowly upheld capital punishment for 16- and 17-year-olds, with Justice Sandra Day O’Connor casting the deciding vote. Since then, 19 juvenile murderers have been put to death in this country, 11 of them in Texas.

Christopher Simmons, whose execution was blocked by the Missouri Supreme Court, was 17 when he plotted with two younger boys to rob and kill a woman in their neighborhood. In 1993, they took Shirley Crook from her home in the middle of the night, bound her in duct tape and threw her alive from a railroad bridge into a river. According to prosecutors, Simmons bragged they would “get away with it” because they were teen-agers. They didn’t. Now, the case will decide whether juvenile murderers are to be shielded from the death penalty.

Commerce, Free Speech Disputes

The wine case, fittingly, provides a pleasant respite from such life-and-death disputes. The owners of several small wineries and some of their most devoted customers are challenging the post-Prohibition-era laws that allow states to control all alcohol shipments across their borders. Most states say beer, wine and liquor may be sold only through licensed wholesalers, and direct shipments of alcohol to consumers are prohibited.

“This case will decide whether consumers or a cartel of billion-dollar distributors will determine what wine is available to consumers in New York or two dozen other states,” says Clint Bolick of the Institute for Justice. He represents a California vintner who wants to ship his zinfandels to interested New Yorkers. In defense of their bans on direct shipping, state lawyers from Michi­gan and New York say the entire structure of alcohol control will be endangered if it can be freely bought and sold over the Internet. Granholm v. Heald, No. 03-1116, and Swedenberg v. Kelly, No. 03-1274.

In the beef case, ranchers have a meaty dispute with a federal agriculture rule that requires them to pay $1 per head of cattle for ad campaigns such as, “Beef, It’s What’s for Din­ner.” They challenged the assessment as a First Amendment violation, arguing the government cannot force someone to pay for a message he or she opposes. Certainly they are not opposed to serving beef for dinner, but some ranchers prefer to promote their cattle as special and distinct, not generic.

In recent years, the Supreme Court has handed down two conflicting rulings on government-sponsored ad programs in the agriculture industry. One, involving California tree fruit, upheld such campaigns as economic regulation. A second, involving mushrooms, struck them down as a free speech viola-tion. The new case, Veneman v. Live­stock Marketing Asso­ciation, No. 03-1164, calls upon the court to decide which one it is.

Dealing with Drugs

The marijuana case tests whether federalism works for liberals. In 1995, the high court sided with gun owners when it struck down the Gun Free School Zones Act on the grounds that the federal commerce power did not reach “mere gun possession.”

How, then, does it reach mere drug possession? That’s the question posed by two California women who say they need medical marijuana to relieve their pain and nausea. Both rely on home-grown marijuana, and last year the 9th U.S. Circuit Court of Appeals agreed with them, ruling that “noncommercial cultivation and use of marijuana” is both protected by California law and beyond the reach of federal authority.

In Ashcroft v. Raich, No. 03-1454, the court will hear Attorney General John Ashcroft’s argument that “in all instances” marijuana is subject to federal control. The fall session’s search-and-seizure case is no dog, although it does have a canine element. At issue is whether police must have a reason to suspect a drug crime before they bring in a dog to sniff the area. Last year the Illinois Supreme Court said police cannot turn a routine “traffic stop … into a drug investigation” by calling in a sniffing dog. Prosecutors appealed, and in Illinois v. Caballes, No. 03-923, they urge the court to rule that a “dog sniff is not a search.”


David G. Savage covers the U.S. Supreme Court for the Los Angeles Times and writes regularly for the ABA Journal.


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