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January 14, 2009

Why did Justice Stevens, the author of Apprendi, vote to Ice Sixth Amendment jury rights?

There are lots of interesting and surprising aspects to the Supreme Court's Ice ruling today, ranging from the absence of opinions from Justices Breyer and Alito (the two Justices with the most criminal justice history) to the willingness of Chief Justice Roberts to join Justice Scalia's forceful dissent.  But the biggest surprise, in my view, is the vote of Justice Stevens to reject the application (or should I say extension?) of the Apprendi-Blakely principle in the consecutive sentencing setting. 

Justice Ginsburg, as evidenced by her vote for the Booker remedy, long ago showed her concerns about taking the logic and consequences of Apprendi-Blakely too far.  But Justice Stevens had never before shown any squishiness or squeamishness about giving full effect to the Sixth Amendment jury trial rights he championed in his Apprendi and Booker opinions for the Court.  But, with Ice presenting an important opportunity to continue the "Apprendi revolution" that Justice Stevens helped start, he joins an opinion that reflects, as Justice Scalia notes, many of the arguments of the Apprendi-Blakely dissenters.

Especially notable in this context is this (gratuitous?) paragraph of important dicta in the majority opinion in Ice:

Further, it is unclear how many other state initiatives would fall under Ice’s proposed expansion of Apprendi.   As 17 States have observed in an amici brief supporting Oregon, States currently permit judges to make a varietyof sentencing determinations other than the length ofincarceration.  Trial judges often find facts about the nature of the offense or the character of the defendant in determining, for example, the length of supervised release following service of a prison sentence; required attendanceat drug rehabilitation programs or terms of community service; and the imposition of statutorily prescribed fines and orders of restitution.  See Brief for State of Indiana et al. as Amici Curiae 11.  Intruding Apprendi’s rule into these decisions on sentencing choices or accoutrements surely would cut the rule loose from its moorings.

This paragraph goes a long way to ensuring that the Sixth Amendment rights championed in the Apprendi-Blakely line of cases are not going to avail many defendants in other sentencing settings in which judges have been given broad authority to conduct fact-finding to increase sentences.  I am especially surprised that Justice Stevens was willing to allow all this this anti-Apprendi dicta carry the day in Ice.

January 14, 2009 at 01:29 PM | Permalink


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» Apprendi Sprawl Frozen in Ice from Crime and Consequences Blog
When the Supreme Court announced Apprendi v. New Jersey, 530 U.S. 466 (2000) nine years ago, the result seemed sensible. The "sentence enhancement" in that case operated for all practical purpose like a higher degree of offense, and degrees were... [Read More]

Tracked on Jan 14, 2009 2:16:33 PM


Why ask why? Let's face it, trying to figure out why some Justice who actually wrote that lethal injection would be unconstitutional if it were conducted painlessly came down the way he did is a fool's errand.

Posted by: federalist | Jan 14, 2009 3:51:31 PM

Unlike Doug I wasn't all that shocked by Stevens vote on a philosophical sense. His position here is perfectly in line with his position as the author of Kelo. What puzzles me is why he chose to draw the line *here*. And while I agree with Doug regarding Ginsburg, again, I wouldn't have not thought this was the case.

I guess what surprises me is not that either Ginsburg or Stevens would want to draw a line to cabin Apprendi. I always assumed that was the case. I just didn't think they would draw it so..ah..um..close, that's the word.

Posted by: Daniel | Jan 14, 2009 6:40:13 PM

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