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January 14, 2009

Some choice quotes from the two opinions in Oregon v. Ice

For reasons I will explain in future posts, the Supreme Court's work today in the Apprendi-Blakely Sixth Amendment case of Oregon v. Ice (basics here) is fascinating, surprising and ultimately disappointing.  Before I get to hard-core commentary, however, it is useful to pull out the key quotes from the two opinions.

Let's start with the majority opinion, authored by Justice Ginsburg:

The question here presented concerns a sentencing function in which the jury traditionally played no part: When a defendant has been tried and convicted of multiple offenses, each involving discrete sentencing prescriptions, does the Sixth Amendment mandate jury determination of any fact declared necessary to the imposition of consecutive, in lieu of con-current, sentences?...

[T]win considerations — historical practice and respect for state sovereignty — counsel against extending Apprendi’s rule to the imposition of sentences for discrete crimes....

[L]egislative reforms regarding the imposition of multiple sentences do not implicate the core concerns that prompted our decision in Apprendi.   There is no encroachment here by the judge upon facts historically found by the jury, nor any threat to the jury’s domain as a bulwark at trial between the State and the accused....

States’ interest in the development of their penal systems, and their historic dominion in this area, also counsel against the extension of Apprendi that Ice requests....

Members of this Court have warned against “wooden, unyielding insistence on expanding the Apprendi doctrine far beyond its necessary boundaries.”  Cunningham, 549 U. S., at 295 (Kennedy, J., dissenting). The jury-trial right is best honored through a “principled rationale” that applies the rule of the Apprendi cases “within the central sphere of their concern.” 549 U. S., at 295. Our disposition today — upholding an Oregon statute that assigns to judges a decision that has not traditionally belonged to the jury — is faithful to that aim.

Now let's hear from the dissent, per Justice Scalia:

The rule of Apprendi v. New Jersey, 530 U. S. 466 (2000), is clear:  Any fact — other than that of a prior conviction — that increases the maximum punishment towhich a defendant may be sentenced must be admitted bythe defendant or proved beyond a reasonable doubt to a jury. Oregon’s sentencing scheme allows judges ratherthan juries to find the facts necessary to commit defendants to longer prison sentences, and thus directly contradicts what we held eight years ago and have reaffirmed several times since.  The Court’s justification of Oregon’s scheme is a virtual copy of the dissents in those cases....

We have taken pains to reject artificial limitations upon the facts subject to the jury-trial guarantee....

The decision to impose consecutive sentences alters the single consequence most important to convicted noncapital defendants: their date of release from prison.  For many defendants, the difference between consecutive and concurrent sentences is more important than a jury verdict of innocence on any single count: Two consecutive 10-year sentences are in most circumstances a more severe punishment than any number of concurrent 10-year sentences.

To support its distinction-without-a-difference, the Court puts forward the same (the very same) arguments regarding the history of sentencing that were rejected by Apprendi....

The Court’s reliance upon a distinction without a difference,and its repeated exhumation of arguments dead and buried by prior cases, seems to me the epitome of the opposite [of a "principled rationale" for applying Apprendi].  Today’s opinion muddies the waters, and gives cause to doubt whether the Court is willing to stand by Apprendi’s interpretation of the Sixth Amendment’s jury-trial guarantee.

UPDATE:  On the topic of choice quotes, the post by Kent at C&C about this case has the best turn of phrase to describe the holding: "Apprendi Sprawl Frozen in Ice."

January 14, 2009 at 12:06 PM | Permalink

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Comments

Well said, Scalia.

Posted by: BruceM | Jan 14, 2009 1:13:35 PM

Looking at the facts of the case more closely, I'm pissed that the court decided to hear the merits of this issue with a case involving a defendant who raped an 11 year old. Whenever the court decides a case involving a child-rapist, the court has no freedom nor the political capital to side with the defendant and must rule in favor of the government, lest there be huge backlash, protests, screaming, and stories titled "Supreme Court Sides with Child Rapist!" festooned across the country. The last time the Court made the mistake of siding with a child rapist was in Kennedy v. Louisiana, and there was so much yelling and screaming and feces throwing that the Supreme Court decided to re-open and re-hear the case, and upon "reconsideration" will change its opinion and side with the state against the child rapist defendant.

The Supreme Court is a powerful, respected institution, but even it does not have the ability to rule against the state when a child rapist is involved - not in this age where we're obsessed with "protecting the children" ... where all public debate and discourse is reduced to nothing more than feigned child advocacy.

As such, important criminal law cases involving hallowed constitutional rights should not be decided based on a case where the Court has no choice but to rule against the defendant. What's the point? You know, to preserve and protect the constitutional rights of our precious children.

Posted by: BruceM | Jan 14, 2009 1:26:58 PM

"The last time the Court made the mistake of siding with a child rapist was in Kennedy v. Louisiana, and there was so much yelling and screaming and feces throwing that the Supreme Court decided to re-open and re-hear the case, and upon "reconsideration" will change its opinion and side with the state against the child rapist defendant."

Well, the fact that the opinion of the Court had a major factual error in Kennedy v. Louisiana that was discovered shortly after release certainly increased the likelihood of it being re-opened. A significant error, indeed, given that the case was decided based on evolving standards of punishment.

Posted by: John Thacker | Jan 14, 2009 3:17:55 PM

John it was not a "major factual error" - what the UCMJ dictates for the military, assuming the UCMJ even authorized execution for child rape, is irrelevent to civilian punishment standards. I am 100% certain that the case would have not been re-opened had the court not received such a huge amount of political backlash (backlash that was amplified due to the ongoing presidential election where all politicians, given a chance to take a bold stand on child rape, were more than happy to do so).

The court won't be accused of siding with a tax cheat, drug dealer, felon with a gun, bank robber, or even a murderer. But the court will be accused of siding with a child rapist and/or pedophile. There were thousands of cert petitions the court could have picked to address the issue taken up in Oregon v. Ice. They should have taken one with an underlying offense that left them free to decide the case on the merits. Our country has become one big, overprotective mother, and our country's maternal instict causes us to be irrational when it comes to children. We will throw out all of our rights if it means giving the illusion that some hypothetical child is hypothetically safer. Politicians have learned to take advantage of this - that's why a vast majority of statutes are given names with the word "Child" or "Children" in it (e.g. "Child Protection Tax Hike Act of 2009").

Posted by: BruceM | Jan 14, 2009 3:48:24 PM

What the UCMJ dictates is also what Congress authorizes. And, Bruce, it is difficult to understand why the death penalty for child rape by a civilian is "cruel and unusual" when it is not so for a military member.

Posted by: federalist | Jan 14, 2009 4:02:45 PM

I have not had time to read the opinions, but part of the quoted above passage from Scalia's dissent could equally apply to the finding of fact triggering a mandatory minimum.

"The [requirement] to impose [mandatory] sentences alters the single consequence most important to convicted noncapital defendants: their date of release from prison. For many defendants, the difference between [mandatory] and [discretionary] sentences is more important than a jury verdict of innocence on any single count: Two [mandatory] 10-year sentences are in most circumstances a more severe punishment than any number of [indeterminate sentences with maximum] 10-year sentences."

In fact, mandatory minimum sentences NECESSARILY "alters the single consequence most important to convicted noncapital defendants," unlike statutory maximum sentences which merely MIGHT affect the release date.

Under the rationale of the passage above, is Scalia ready to reconsider Harris? 5 Justices already are on record stating that Harris cannot be reconciled with Apprendi, and Scalia was not one of them. Could this make 6?

Posted by: DEJ | Jan 14, 2009 5:04:51 PM

Problem is, DEJ, that mandatory minimums do not up the risk of the max sentence.

Posted by: federalist | Jan 14, 2009 5:19:17 PM

John it was not a "major factual error" - what the UCMJ dictates for the military, assuming the UCMJ even authorized execution for child rape, is irrelevent to civilian punishment standards.

Irrelevancy is independent of it being a factual error. The opinion point-blank stated that no federal jurisdiction contained a provision authorizing execution for child rape. This is demonstrably false, and indeed Congress had rather recently changed the UCMJ (in 2006) to authorize such, which goes to the heart of the national consensus argument.

Furthermore, your comment that "there was so much yelling and screaming and feces throwing that the Supreme Court decided to re-open and re-hear the case, and upon "reconsideration" will change its opinion and side with the state against the child rapist defendant" is factually inaccurate as well. The Court did not re-open the case, though some justices (the dissenters) wanted to.

Certainly there was a more serious political backlash because of the issue of child rape, but I'm still a bit surprised that the Court didn't at least want to edit the opinion so that it could, instead of incorrectly claiming that no federal jurisdiction imposed the death penalty, explicitly claim that military punishments were irrelevant.

However, I'm somewhat confused about your apparent claim that military punishments are immune from Eighth Amendment claims of cruel and unusual punishment. If the fact that the military imposes a punishment is truly irrelevant to Eighth Amendment claims, that means that the military is allowed to impose otherwise cruel and unusual punishments.

Posted by: John Thacker | Jan 14, 2009 5:54:56 PM

Well, yes, that's obvious federalist (at least in most - but not all - cases).

But 5 Justices have already said that based on the legal principles involved, they see no meaningful distinction between a fact that triggers a stat max and a fact that triggers a mand min.

If Justice Scalia believes that important in the Sixth Amendment analysis is whether the fact "alters the single consequence most important to convicted noncapital defendants: their date of release from prison," then that reasoning applies equally to facts triggering mand mins.

Posted by: DEJ | Jan 14, 2009 6:11:51 PM

But DEJ, the "important to defendant" isn't the test and the issue is the allocation of function between jury and judge. At bottom, Apprendi prevents attenuation of jury function by authorizing a sentence greater than what would have been authorized by the jury verdict alone. That simply doesn't obtain in the context of a mandatory minimum. There is a qualitative difference between a statute that says, the penalty for assault with a deadly weapon is up to five years, but if the judge finds that the attack was motivated by racial bias, the penalty is up to 20 years and a statute that says that assault with a deadly weapon is punishable by up to five years, but if it is motivated by bias as determined by a judge, it shall be punished by no less than 1 year imprisonment.

Where I think Scalia goes really wrong is his focus on the defendant. Clearly, there are Apprendi-compliant schemes that are harsher on defendants than non-Apprendi-compliant schemes, and the legislative reaction to Apprendi has often been the "be careful what you wish for" response. Rather, the issue is the protection of the jury trial power, which is a limitation on government power as well as a protection for defendants. Before a government official (i.e., a judge) can incarcerate someone for 20 years, the jury has to make a finding of fact that authorizes that incarceration. Honestly, and with all due respect to others that disagree, I cannot see how the holding of Apprendi shouldn't be 9-0.

Posted by: federalist | Jan 14, 2009 6:47:36 PM

federalist, you did nothing to refute the point of my post, which was: if Justice Scalia thinks that a finding of fact at sentencing that necessarily alters a defendant's release date has Sixth Amendment significance, then that reasoning equally applies to facts triggering mand mins.

Your statement that "[t]here is a qualitative difference between" stat maxs and mand mins is nothing more than re-starting a debate that occurred between the 4 Justice plurality and 4 Justice dissent in Harris. That debate need not be re-hashed here. Suffice to say, however, that in Harris, 5 of the Justices (the 4 dissenters plus Breyer) did not agree with your view of a "qualitative difference."

Posted by: DEJ | Jan 14, 2009 7:07:47 PM

DEJ -- you're wrong about Scalia. To quote you: "if Justice Scalia thinks that a finding of fact at sentencing that necessarily alters a defendant's release date has Sixth Amendment significance, then that reasoning equally applies to facts triggering mand mins." No it doesn't. A fact triggering a mandatory minimum does not "necessarily" alter a deft's release. The judge could explicitly find that the fact does not exist, and them impose the very same sentence. Thus, the fact, or its non-existence, does not necessarily alter a defendant's release date. To be sure, the fact's existence does alter the sentence imposed in a significant subset of cases -- namely, in those cases in which the judge wants to impose a lower sentence. But it does not "necessarily" alter a defendant's release date in all cases where the challenged sentence is imposed.

That, however, is the case for facts that increase the statutory maximum. In every case where an above-max sentence is imposed, the fact-finding "necessarily" altered the defendant's release date.

Now, you might not think that's a relevant difference. You might think that anything that necessarily alters the sentencing range should trigger the 6A, even if the particular sentence imposed could have been imposed based purely on the jury's facts alone. But that is a very different rule than the one stated in Apprendi, Blakely, et al, and that explains Scalia's vote in these cases.

Posted by: Anonymous | Jan 14, 2009 8:46:40 PM

Well, DEJ, I can explain it to you--I cannot understand it for you. What Apprendi is getting at is a shrinking of the jury's role in rendering the factual judgment, i.e., by withdrawing certain facts from its purview so as to make the jury's determine less than 100% of what constitutes the crime. If you want to look at it as certain elements being taken away from the jury, that's fine. And that's different from the mandatory minimum.

Posted by: federalist | Jan 15, 2009 10:51:35 AM

Anonymous, you are correct that the word "necessarily" might not have been entirely accurate in this context. I overreached when I used the word "necessarily" because, as you point out, the subset of cases in which it is true is quite large. In fact, if you look at the statistics explained in Harris at 578 & n.4, the subset is virtually all-encompassing.

That being said, I don't believe the word "necessarily" is necessary to the analysis (no pun intended). The finding of fact at issue in Ice didn't necessarily alter the defendant's release date. This is because the finding of fact "does not require the judge to order consecutive sentences." Slip Op. at 3. And, the finding of fact that triggers a mand min, for many defendants, is more important that than the finding of guilt.
federalist, you don't need to explain you’re view of the distinction to me, and I assure you that I understand it entirely. Just because someone doesn't agree with you on a point doesn't mean they don't understand what you are saying. (NOTE: Mind you, I never said that I agreed with the dissenters in Harris. You've seemed to assume that in your last post).

Posted by: DEJ | Jan 15, 2009 12:51:50 PM

DEJ, the distinction is obvious. With respect to the max amount, the jury doesn't get to pass on all of the elements of the crime, and, as a result, the jury-trial right is compromised. That is not the case with mandatory minimums. A criminal convicted of Crime X, but who is subject to a sentence greater than that for Crime X really hasn't been convicted of Crime X, he's been convicted of Crime X prime, and the right to trial by jury means that the jury has to pass on Crime X prime. A mandatory minimum just doesn't implicate that issue. Now, it may be that the jury trial right is so important that we're going to go further and make it clear that any fact with determinate impact on the sentence (as opposed to discretionary decisions) must be found by a jury, but that result is not dictated by Apprendi.

Posted by: federalist | Jan 15, 2009 1:26:49 PM

Here is the language from Apprendi that sums up that opinion: “Other than the fact of a prior conviction, any fact that increases the PENALTY for a CRIME beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Blakeley added this clarification: “The relevant statutory maximum FOR APPRENDI PURPOSES is the maximum a judge may impose solely on the bases of facts reflected in the jury verdict or admitted by the defendant.”

In Ice, Justice Ginsberg seemingly moved the goal posts when she paraphrased Apprendi, Booker and so on as follows: “ They hold that it is within the jury’s province to determine any fact (other than the existence of a prior conviction) that increases the maximum PUNISHMENT authorized for a particular OFFENSE.” Later on in his dissenting opinion, Justice Scalia did the same, paraphrasing Apprendi as follows: “Any fact—other than that of a prior conviction—that increases the maximum PUNSIHMENT to which a defendant may be sentenced must be admitted by the defendant or proven beyond a reasonable doubt.”

So what happened? In his dissent, Justice Scalia explained: “We have taken pains to reject artificial limitations upon the facts subject to the jury-trial guarantee. We long ago made clear that the guarantee turns upon the penal consequences attached to the fact, and not to its formal definition as an element of the crime.”

Apparently they now recognize that Apprendi was an oversimplification, or have they simply reframed the problem? I would appreciate some comment from you lawyers.

I believe most people would agree that a crime is forbidden conduct. An offense is conduct that is an affront; e.g., indignity, injury, outrage and so on. Many offenses are not crimes, but most crimes are also criminal offenses. Some crimes are not criminal offenses; i.e., strict liability crimes. Penalties are fixed before the fact when the problem is not fully known, but imposed after the fact. Punishments are fixed after the fact when the problem is fully known, but within a range that was established before the fact.

Posted by: Tom McGee | Jan 15, 2009 8:34:11 PM

Anyone know whether the Ohio Supreme Court has agreed to revisit FOSTER after the ICE decision?

Posted by: Richard Cline | Jan 20, 2010 7:00:38 PM

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