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October 2, 2009

Should the ALI and other academics actively urge SCOTUS to reverse Harris in O'Brien?

I keep thinking about the suggestion by Professor Kevin Reitz, noted in this post, that the Harris mandatory minimum limit on the Apprendi Sixth Amendment rule might be subject to reversal in O'Brien.  And the more I think, the more I get drawn to the idea that everyone who views Harris as a serious impediment to sound modern sentencing reforms ought to be actively urging Harris to be overruled in O'Brien.  I say this because I genuinely believe that, if lots of thoughtful folks make a strong case that Harris is now harmful in light of the subsequent Blakely and Booker jurisprudence, few Justices may be eager to defend and uphold Harris

Let me unpack this instinct by first highlighting that Justice Stevens and Justice Thomas seem likely and eager to embrace calls to overrule Harris.  Both Justices have expressed interest in getting rid of undue limits on the Apprendi doctrine and neither seems too moved by stare decisis concerns in this setting.  The fact that both Justices Stevens and Thomas may be deeply interested in getting rid of Harris seems quite significant (and Justice Ginsburg has almost always voted with Justice Stevens in this line of cases).

Also significant, especially for the vote of Justice Breyer (and maybe also for Justice Kennedy), is that the subsequent Blakely and Booker rulings largely brought down what Harris sought to preserve: binding guideline systems based on judicial fact-finding.  After Blakely and Booker, the virtues of Harris are harder to see, while the vices remain on display.

In addition, the Recuenco decision declares Apprendi-Blakely errors subject to harmless error analysis.  Recuenco can and should greatly reduce the fear that overruling Harris would have all sorts of negative consequences: in the vast majority of old cases, any "O'Brien error" in the application of a mandatory minimum sentence would likely be found to be harmless.

Finally, I think all the new Justices could be moved by arguments that preserving Harris is bad for modern sentencing reform as long as Apprendi and Blakely and Booker all remain good law.  All the new Justices likely have a sense of the ugliness of modern Sixth Amendment jurisprudence and none have played a direct role in creating it.  Consequently, they might readily be drawn to suggestions that the Court would be helpful and respectful to states and officials involved in sentencing reforms if they now did away with the Harris exception to Apprendi.

Ironically, these thoughts all take me back to Professor Kevin Reitz, who is the reporter on the ALI's on-going revision of the sentencing provisions of the Model Penal Code.  If he could get the ALI and others to make the case that no sentencing code can be truly model with Harris still on the books, there may be even more than five votes to overrule Harris in O'Brien

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October 2, 2009 at 11:35 AM | Permalink

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The 4000 members of the ALI are on the list of the lawyer hierarchy. They form a supra-governmental organization that tells the legislatures how to write statutes. Now they are branching out into bossing the highest court. They call themselves reporters. However, they often do not report, they create law in accordance with the economic interest of the criminal cult enterprise (CCE) that is the lawyer profession.

They are not as creative as the Court however. The Justices are ex officio members of the ALI. They can give it lessons in making up law, in accordance with the economic interest of the CCE.

Analyzing the above legal maze would dignify self-dealing lawyer garbage. None of it has validity in the language of the Sixth Amendment, which is quite plain, nor in policy, nor in common sense. This fast lawyer gesturing is to distract from the real intent, to release the criminal to victimize again, to increase the crime rate, to generate lawyer jobs.

Posted by: Supremacy Claus | Oct 2, 2009 12:07:34 PM

Analyzing the above
legal maze
would dignify self-dealing lawyer
garbage. None of it has validity
in the language of the Sixth Amendment, which is
quite plain, nor
in policy, nor
in common sense. This fast
lawyer gesturing is to distract from
the real intent, to release
the criminal to victimize again, to increase
the crime rate, to generate
lawyer jobs.

Posted by: Supremacy Claus the Poet | Oct 2, 2009 1:25:21 PM

SC the Poet: Thank you for not falsely using my fictitious character name. Satire is lawful and welcome. In case, you didn't notice, Sitemeter lists your ISP number and GPS location at the time of posting. Someone who does not love you as much as I do would not even need a court order to find you. I think you are funny, and a rare person, one stupid enough to respond. You make my day. Keep it coming. Also thanks to you, I have corrected the wrong link to the Supremacy blog. The Supremacy is a fictional character. Any lawyer curious about its author can learn a lot of useless information about a total stranger by asking. Prof. Berman asked, he was given personal contact info and he has an offer to get a resume, which he has not taken up. But it is the useless info about a stranger. It will not help, except to provide fodder for hate speech, personal attacks. These make the lawyer seem small, unfair, and afraid of the traverse.

No lawyer can respond to what they know is true from their erased memories of 10th Grade World History. They know they are cult indoctrination subjects, and have been made to believe in unlawful Medieval supernatural, garbage doctrines. That explains the unpopularity and failure of the lawyer profession. They suck, and they know, they suck. I am their best friend in helping them suck less.

Posted by: Supremacy Claus | Oct 2, 2009 5:27:07 PM

If they reverse Harris, they did it one term too late. Had Harris not been good law, then I probably would not have lost in Dean.

Posted by: Scott | Oct 2, 2009 7:48:22 PM

But Harris is good law. Doug I believe you tend to oversimplify. Its perfectly alright to think of conduct in more than one way. We penalize people for committing crimes and punish them for committing offenses, two different ways of thinking about the same conduct. Apprendi is concerned with the penalty for committing a crime, not punishment for a criminal offense.

Posted by: Tom McGee | Oct 2, 2009 10:57:00 PM

I think the answer to your post is: Yes, and the post makes a strong argument on why practical reasons call for it!

Professor Bowman in his recent paper said that the overturning of Harris “is essential if Sixth Amendment jurisprudence is to be both intellectually coherent" and respectful of jury trial rights. If the briefs in O'Brien raise the issue (which I don't know why the Respondents wouldn't do so), I'm assuming he would be more than happy to express his well-thought-out views on this subject (as found in his paper) to the Supreme Court.

Assuming Prof. Berman is also among the academics who views Harris as a "serious impediment," might a Berman-Bowman (and others) amicus brief be in order?

Posted by: DEJ | Oct 3, 2009 12:58:12 PM

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