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September 30, 2009

Might the Harris limit on Apprendi be at risk with O'Brien cert grant?

Professor Kevin Reitz sent me this tantalizing e-mail in response to te Supreme Court's cert grant today in O'Brien (basics here):

U.S. v. O’Brien gives the Court the chance to reconsider Harris v. U.S., 536 U.S. 545 (2002), which held that the Apprendi rule doesn’t attach to factfinding at sentencing that triggers a mandatory minimum sentence without increasing the available maximum penalty.  It would certainly be big news if the Court were to overrule Harris.  The Solicitor General’s office doesn’t expect this to happen (otherwise they wouldn’t have filed for cert).  Counting votes, however, it’s hard to call. 

Three dissenters in Harris remain on the Court: Stevens, Thomas, and Ginsburg.   Breyer’s concurring vote in Harris was wobbly — the rationale was that he could not “yet accept” the Apprendi rule.  If “yet” has now arrived, we may have four votes to overrule Harris.   Roberts, Alito, and Sotomayor are not clearly on record.  Sotomayor might well be a 5th vote?  

Stare decisis counts for something here.  Harris reaffirmed an earlier case against a fully-developed Apprendi challenge, so a 180-degree turn in O’Brien would be dramatic.  Still, from a policy view, once Apprendi and Blakely and Booker are the law, it would be nice to eliminate Harris’s mandatory minimum end-run around those cases.

September 30, 2009 at 06:50 PM | Permalink

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Comments

Would Justice Thomas (the author of the four-justice dissent in Harris) be able to hold a five-justice majority with wobbly votes? I respect Justice Thomas deeply, and believe that Harris is one argument against those who ignorantly call him a mere Scalia clone. On the other hand, his track record of assembling and keeping a majority is not great.

Posted by: Ed Unneland | Sep 30, 2009 9:08:04 PM

No comment on the substance of this scientifically invalid lawyer garbage. All of it is just made up, and self-dealing. However, its structure illustrates a point.

The Sentencing Guidelines result in a 40% drop in crime, including violent crime and murder. This parallelism implies these travel together because the same small number of lawyer clients are doing them all. When in stir, they do less of all of them.

1) The weasels do not repeal the Guidelines out of fear of public retaliation. They make them discretionary. They just happen to lengthen trials if the prosecutor wants enhanced sentencing. (There is nothing in the Sixth Amendment that addresses sentencing. The weasel just invented that idea.) That discretion means any consequence or increase in crime can be attributed to street judges, and not to themselves. They maintain plausible deniability for themselves. The Guidelines were very hard to follow and complex. This discretion manages to add to their complexity.

2) Then in Harris, they introduce an exception to an exception. The Apprendi Rule does not apply if the sentencing is within guidelines. If the Sixth Amendment applied to facts to be applied to extra-guideline sentences, why doesn't it apply to those within them, in Harris? Answer: no particular reason, because this entire reason emerged fully formed from the rears of these weasels.

3)In O'Brien, we await an exception to the exception to the exception.

Why is it so complicated to put a bad guy in prison? It is obvious. One must hire a lawyer or one will be lost in this legal maze. At the end, more criminals will get released by this confusing twisting line of reasoning. That is the bottom line. Release the criminals to generate jobs for lawyers.

Posted by: Supremacy Claus | Sep 30, 2009 9:14:04 PM

Protect your practice's income with our help.

Posted by: Attorney Disability Insurance | Oct 1, 2009 12:55:42 AM

No chance of Harris being overruled. ALito has already come out as anti-Apprendi, and allbets are that Roberts doesn't feel more strongly about extendijng Apprendi than Scalia. Sotomayor's "pragmatist", guidelines-centric liberal and sentencing records, respectively, make her highly unlikely to vote to overturn Harris either.

Posted by: Jacob Berlove | Oct 1, 2009 9:31:30 AM

Would Justice Thomas (the author of the four-justice dissent in Harris) be able to hold a five-justice majority with wobbly votes?

It doesn't matter, because Thomas usually isn't assigned the opinion in wobbly 5-4 cases.

Posted by: Marc Shepherd | Oct 1, 2009 10:45:59 AM

If Harris were to be overruled, the most likely scenario would be Sotomayor replacing Souter's vote in the Harris dissent and Breyer, who was in the Harris majority, changing his mind on the issue. Maybe not a likely scenario, but not outside the realm of possibility. O'Brien's lawyer should certainly ask for Harris's overruling.

Posted by: lawyer | Oct 1, 2009 12:29:40 PM

One more thing. It's interesting that, in wording the "question presented" in its cert petition in O'Brien, the Solicitor General's office left the constitutional question wide open. They could have worded the issue as a simple matter of statutory interpretation (the basis of the 1st Circuit's ruling in O'Brien), but they didn't. I wonder why.

Posted by: lawyer | Oct 1, 2009 12:35:29 PM

As "lawyer" points out, the question presented in O'Brien is extremely broad. So broad, I fear, that it could conceivably accomodate the overruling of Apprendi itself -- accomodate eliminating the constitutional distinction between elements and sentencing factors.

I have yet to see anyone raise this possibility: that Roberts, Kennedy, Breyer, and Alito voted to hear O'Brien because they are hoping to get Sotomayor on board the plane out of Apprendi-land.

This is somewhat fanciful and paranoid speculation, to be sure. But let's not forget Citizens United. I think overruling Apprendi is no less likely an outcome than overruling Harris.

Posted by: William O. Rights | Oct 1, 2009 1:45:01 PM

Will O. Rights: Wow. I hadn't thought of that. Prof. B. : whaddya think of Will O.'s specualtion?

Posted by: lawyer | Oct 1, 2009 1:56:16 PM

Would be a shame if Apprendi got overruled because, quite simply, it is correct.

Posted by: federalist | Oct 1, 2009 5:28:24 PM

that Roberts, Kennedy, Breyer, and Alito voted to hear O'Brien because they are hoping to get Sotomayor on board the plane out of Apprendi-land.

Posted by: lacoste vancouver | Sep 20, 2010 1:43:18 AM

guidelines-centric liberal and sentencing records, respectively, make her highly unlikely to vote to overturn Harris either. let's not forget Citizens United.

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