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October 13, 2008

The little Ice case that could (but probably won't)...

Enginebe a major Sixth Amendment ruling.  As detailed here at SCOTUSblog, Tuesday afternoon the Supreme Court will hear argument in Oregon v. Ice, which explores whether the Apprendi/Blakely rule limiting judicial fact-finding at sentencing extends to determinations required under state law for the imposition of consecutive sentences.  I did a preview of this case for the ABA, which can be downloaded below.  Here is a snippet of my analysis from that preview:

Continued uncertainty about what the current Justices now think about the Sixth Amendment rule championed in Apprendi and Blakely increases the uncertainty over whether the Court’s decision in Ice will be bold and significant.  If a group of five or more Justices remains eager to limit certain judicial fact-finding at sentencing, the Court could produce a broad and consequential decision that not only favors the defendant, but also suggests that lower courts should be applying the Sixth Amendment in an array of new sentencing settings.  Conversely, if a group of five or more Justices is now eager to remove remaining constitutional uncertainty about what Blakely means for various forms of judicial fact-finding at sentencing, the Court could produce a broad and consequential decision that not only favors the state but also suggests that lower courts should not be too concerned about Sixth Amendment rights in various sentencing settings.

Tellingly, the Supreme Court has not taken up many post-Blakely issues in recent years, even though lower courts have frequently turned back arguments by defendants and defense counsels to apply and expand Blakely’s reach in a variety of new sentencing settings.  This reality perhaps suggests that the Court may be more inclined to limit than to expand the reach of Blakely in this case....

Because Chief Justice Roberts has publicly suggested he favors narrow constitutional rulings that produce more consensus than dissension within the Court, one might expect a relatively narrow ruling in Ice garnering the votes of most or all Justices.  The specific consecutive/concurrent sentencing issue in Ice could be resolved on relatively narrow grounds without requiring the Court to significantly expand or significantly limit the reach of the Sixth Amendment.  But, then again, one hallmark of the Apprendi and Blakely line of cases has been unpredictability.  Ice could be a sleeper case if a group of Justices prove eager to use the opinion in this case as an opportunity to champion again the importance of the jury in modern criminal justice settings.

Download aba_preview_of_ice.pdf

October 13, 2008 at 10:13 PM | Permalink


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Tracked on Oct 14, 2008 7:10:26 PM


Professor Berman, your succinct preview seems to support the state. Does amici Sentencing Law Scholars confirm that?

Posted by: | Oct 13, 2008 11:09:10 PM

I think it's an interesting issue. Many years ago, before I knew anything about the law, I'd always assumed that all sentences were served consecutively. The notion of concurrent sentences was a real eye opener to me. To me, the whole practice of concurrent vs consecutive sentences raises profound questions about the law and it's application in the sentencing context. For example, under the Oregon law I am not convinced that the incidents (as found by the judge) actually meet the statutory tests necessary to conclude that there were seperate courses of conduct and resulted in seperate harms. It's not at all obvious where one draws the line.

But the underlying issue is what disturbs me. It seems that the whole practice of concurrent vs consecutive sentences is really a way for the judge to do an end run around the system. The prosecutor charges six seperate crimes, the jury convicts, and now the judge has the option of sentencing the guy (under the guidlines) between a couple of years and 30 years all depending on whether he has the sentences run concurrently or consecutively. There seems to be something fundamentally wrong with that. Perhaps rather than trying to limit judicial discretion, it might be better off to limit prosecutor's discretion so we don't have six charges for one crime in the first place.

Posted by: Daniel | Oct 14, 2008 1:19:13 AM

Dear 11:09:10 PM,

I believe the amici Sentencing Law Scholars was filed in support of the state, but I did not join that brief because it is not fully reflective of my views. I still ascribe to an offense/offender distinction concerning the scope and reach of the Sixth Amendment, and I actually think that my approach is more supportive of the defendant in this particular case.

The ABA preview is meant to predict, not recommend, how the case may be resolved. I am predicting a win for the state here, but I will not put too much stock in that prediction until I see what happens at oral argument.

Posted by: Doug B. | Oct 14, 2008 6:55:15 AM

By no stretch is this one crime. There were two separate entries of the home to molest a child and two sexual acts on each occasion. The judge found the two sexual acts on each occasion to be one offense for this purpose, so they were sentenced consecutive. He found the burglaries to be separate crimes from the sex acts, and I agree. But beyond any question the two incidents are two crimes.

Posted by: Kent Scheidegger | Oct 14, 2008 9:48:50 AM

Oops. Previous comment should have said that the two sex acts on each entry were sentenced to be served concurrently.

Anyhow, the only really debatable question here is whether there are two crimes or four. The prosecution did not ask for six.

Posted by: Kent Scheidegger | Oct 14, 2008 11:03:38 AM

Kent. You make it sound like the line here is pure and simple when it's not. It is easy to conceive of this as one crime: it was the same set of actions on the same individual. When a prosecutor charges someone with physical battery, they don't create a seperate charge for each blow to the person's body, even if those blows may have happened minutes apart. Of course, the passage of time between events in this case is greater. My point is not that I agree or disagree with the prosecutor's decision; it's that the definition of a crime is a fuzzy one; prosecutors have a great deal of discretion on which charges to file based upon how they conceptualize the activity. I've read cases of child porn possession where hundreds of images were involved but the prosecutor came forward with a single count.

I wonder how prosecutor's charging behavior would change if we eliminated, as a matter of law, the ability of judges to sentence anyone for any crime to concurrent sentences. My own belief is that you would see a big difference in the way that prosecutors charge crimes. Whether eliminating judge's ability to create concurrent sentences is a wise policy choice raises a whole host of interesting questions. But perhaps that approach is the best way to resolve the case at hand.

Posted by: Kent | Oct 14, 2008 12:23:06 PM

There was a bug. The post directly above was posted by me.

Posted by: Daniel | Oct 14, 2008 12:25:54 PM

Defense counsel did not seriously contest that there were two separate crimes. (The sentencing memorandum is in the Joint Appendix.) The prosecution did not contend there were six. As I said before, the dispute was between two and four. Yes, the two versus one question is "pure and simple" in this case.

Posted by: Kent Scheidegger | Oct 14, 2008 1:11:56 PM

The concurrent v. consecutive question certainly is important, and is mostly a case of legislative inattention and incomprehension. While prosecutors and public defenders understand how immense the distinction can often be, the statutory guidance provided often seems blaise, and when you listen to state or federal legislators debate enactment of a new crime, the issue is almost never discussed.

One could adopt an interpretation, at one end of a scale that holds that all offenses of which a defendant is convicted after last being released from incarceration should be served concurrently -- which is simply another way of saying that the most serious crime a person has committed generally dwarfs in importance any lesser crime that someone has committed. Prisons, for example, frequently classify inmates and assign them to security levels based upon the most serious offense of conviction. Many habitual offender statutes (although not the federal one) require a period of incarceration intervene before a new offense can be counted as a strike for habitual offender sentencing.

An opposite extreme would be to treat any offense of conviction that is not a lesser included offense as separate, with sentences for each served concurrently, which gives prosecutors much more discretion, and would lead to many, many more charges and much longer sentences.

My general instinct is that sentences should bear a strong relationship to the seriousness of the crimes committed, and that the boundary lines on issues like consecutive v. concurrent should be drawn to achieve good outcomes in that regard. Put another way, the purpose of criminal sentencing is to sort convicted criminals by degree of badness and the results should fit our intuition.

The question in a case like this one is whether someone who rapes a particular child on two separate days should be incarcerated twice as long as somone who rapes a particular child on only a single day, or whether, instead, the fact that rapes were committed on two separate days should be considered in aggravation when setting a sentence within a sentencing range, often producing say, a 50% longer sentence.

In the one day v. two day context the answer isn't clear. In the four day v. forty day context the argument that the second offender should serve a sentence ten times as long as the first (say 5 years v. 50 years) is far less obvious. In the case of child pornography, as offenses are defined in Arizona, concurrent sentencing can become absurd.

Property crimes often offer a middle ground. Multiple incidents can be aggregated in value to determine an appropriate sentence for a single aggregate property offense. But, violent crimes are harder to quantify.

While totally arbitrary, one could also imagine a rule whereby a full term would be served for a most serious offense, an additional half sentence would be served on the second most serious offense, an additional third sentence would be served on the third most serious offense, and so on.

Posted by: ohwilleke | Oct 14, 2008 1:12:59 PM

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