The Washington Post is one of the few media sources pointing out the seeming contradiction between two of yesterday's Supreme Court decisions.

In Ring, the death penalty decision, the Court said juries, not judges, must make the decision to impose death sentences. Allowing a judge to impose a sentence by considering facts not brought before or ruled on by a jury violates a defendant's constitutional right to a jury trial. We agree.

But in the Harris decision yesterday, the Court upheld a judge's imposition of a higher sentence on a defendant who possessed a gun during the course of the crime for which he was convicted--even though the defendant was never charged with a gun crime and the jury never considered the issue. We disagree.

The effect of the Harris ruling is to uphold thousands of mandatory minimum sentences around the country. Our friend FAMM (Families Against Mandatory Minimums) submitted a brief in the Harris case arguing that mandatory minimums are "expensive and inefficient, perpetuate unwarranted and unjust sentencing disparities, and transfer the sentencing function unwisely from the judiciary to the prosecution." So true. The FAMM Press Release on the Harris decision clearly points out the unfairness of the decision and the need for legislative reform for mandatory minimum sentences.

What's the difference between the two cases? Isn't the actual sentence in both cases being determined by judges based on facts not presented to the jury ? The Court says the issue in the mandatory minimum gun case does not involve an "element of the offense" but merely a "sentencing factor." Aggravating factors in death cases, on the other hand, are the "functional equivalent" of "an element of the offense." Elements of offenses must be submitted to juries. Sentencing factors do not.

In addition, the Court reasons that the death penalty case involves a determination of the maximum penalty while the mandatory minimum gun case involves a determination of the minimum penalty without affecting the maximum sentence. Got that?

While we don't often agree with Justice Thomas, he makes a good point in the Harris dissent when he says "Whether one raises the floor or raises the ceiling it is impossible to dispute that the defendant is exposed to greater punishment than is otherwise prescribed."