Tuesday, April 01, 2014
"Alleyne on the Ground: Factfinding that Limits Eligibility for Probation or Parole Release"
The title of this post is the title of this notable new article by Nancy King and Brynn Applebaum now available via SSRN. The piece contends that the Supreme Court's Sixth Amendment ruling in Alleyne v. United States last Term renders a number of state sentencing systems constitutionally suspect, and here is the abstract:
This article addresses the impact of Alleyne v. United States on statutes that restrict an offender’s eligibility for release on parole or probation. Alleyne is the latest of several Supreme Court decisions applying the rule announced in the Court’s 2000 ruling, Apprendi v. New Jersey. To apply Alleyne, courts must for the first time determine what constitutes a minimum sentence and when that minimum is mandatory. These questions have proven particularly challenging in states that authorize indeterminate sentences, when statutes that delay the timing of eligibility for release are keyed to judicial findings at sentencing. The same questions also arise, in both determinate and indeterminate sentencing jurisdictions, under statutes that limit the option of imposing either probation or a suspended sentence upon judicial fact finding.
In this Article, we argue that Alleyne invalidates such statutes. We provide analyses that litigants and judges might find useful as these Alleyne challenges make their way through the courts, and offer a menu of options for state lawmakers who would prefer to amend their sentencing law proactively in order to minimize disruption of their criminal justice systems.
Tuesday, March 11, 2014
Might SCOTUS soon (ever?) consider whether its Apprendi jurisprudence should apply to criminal forfeitures?
The question in the title of this post is my response to the brief discussion of a constitutional claim appearing in yesterday's Ninth Circuit decision in US v. Wilkes, No. 11-50152 (9th Cir. March 10, 2014) (available here). Here is why:
Wilkes argues that determination of the amount of his criminal forfeiture by the district judge, as opposed to a jury, violated his Sixth Amendment right to a jury trial. Wilkes argues that Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, 133 S. Ct. 2151 (2013), require that the jury find facts justifying an increase in either end of the range of the prescribed penalty. Wilkes further argues that Southern Union Co. v. United States, 132 S. Ct. 2344 (2012), applied Apprendi and, by extension, Alleyne, to monetary penalties — which he contends includes criminal forfeiture.
Wilkes’s argument is directly contradicted by binding Supreme Court precedent. In Libretti v. United States, 516 U.S. 29, 48–49 (1995), the Court expressly held that there is no Sixth Amendment right to a jury verdict in a criminal forfeiture proceeding. The Supreme Court has cautioned courts of appeals against concluding that “recent cases have, by implication, overruled an earlier precedent.” Agostini v. Felton, 521 U.S. 203, 237 (1997). Thus, “[i]f a precedent of [the Supreme] Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to [the Supreme] Court the prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989). In compliance with the Supreme Court’s instructions, we reject the argument that Southern Union implicitly overruled Libretti.
Notably, and I think sensibly, this Ninth Circuit panel does not try to explain why Libretti is still sound and good law in light of Apprendi, Southern Union and Alleyne. Instead, it says it is not its role/job to reverse a pre-Apprendi ruling based on Apprendi; that is what SCOTUS has to do. But since SCOTUS has reversed at least two significant pre-Apprendi rulings based on Apprendi, defendants might be wise to keep raising and preserving this claim until the Supreme Court gives it another modern review.
Sunday, February 02, 2014
"Sentencing and Prior Convictions: The Past, the Future, and the End of the Prior Conviction Exception to Apprendi"
The title of this post is the title of this interesting and potent new paper now available via SSRN and authored by the always interesting and potent Nancy King. Here is the abstract:
This article traces the fascinating history of early efforts to identify defendants and their prior convictions as well as the evolving use of prior convictions in aggravating punishment; examines how contemporary repeat offender penalties fall short of punishment goals and contribute to the racially lopsided profile of punishment today; and critiques potential justifications for the prior conviction exception to the rule in Apprendi v. New Jersey, arguing that the exception should be abandoned.
The article summarizes empirical research testing the relationship between prior convictions and examining the efficacy of repeat offender sentences in reducing recidivism; collects commentary on the use of risk prediction in sentencing; surveys state-by-state eighteenth century authority that belies the claim that denying element status to prior convictions that raise the range of punishment is a longstanding tradition; evaluates the weaknesses of the case law underlying the Court's decision in Almendarez-Torres; argues that defendants need not be prejudiced when prior convictions are treated as elements; and observes that the original reason that a very small number of states in the nineteenth century stopped requiring prior convictions to be treated as elements — namely, that an offender’s criminal history was often unknown unless or until a warden recognized him — no longer exists.
An earlier version of the article was delivered as the Barrock Lecture on Criminal Law at the Marquette University Law School.
February 2, 2014 in Almendarez-Torres and the prior conviction exception, Blakely Commentary and News, Blakely in the Supreme Court, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack
Sunday, July 14, 2013
Though he was found not guilty by the jury, are sentencing stories in the Zimmerman prosecution and verdict?
The question in the title of my post is my effort to provide a (final?) place for discussion of the high-profile state acquittal in Florida which a jury handed down late last night. I suspect lots of folks are eager to talk about the substance of the prosecution and verdict, but I want to stress (and praise) the procedures in this post.
I find quite notable and important the seemingly wide-spread acceptance by so many of the jury-based decision-making process and the use of a beyond a reasonable doubt standard of proof at Zimmerman's criminal trial. And, as regular readers might guess, I wish to tie this reality back to my perception of the profound and enduring wisdom to be found in the Apprendi and Blakely line of cases (as for the Booker remedy, er... not so much).
Though perhaps we will see some future criticisms of the trial procedures in the Zimmerman case, my observation of early media and public reactions suggests a general acceptance of the process even among those who might profoundly disapprove of the outcome. Indeed, I will be quite surprised if anyone — even those most bothered by the jury acquittal here such as the Martin family — will respond to the acquittal outcome by arguing that the result shows we should have professional judges rather than lay jurors resolving these kinds of cases or by advocating the use of a lesser proof standard than guilt beyond a reasonable doubt for criminal trials. I surmise that this reality highlights just how deeply all Americans believe adjudication by lay jurors using a high standard or proof is fundamental to a fair and criminal justice system.
And yet in sentencing in hundreds of courtrooms nationwide every day, once a guilty verdict has be entered by plea or conviction on any count, we still have what Judge Gerry Lynch once astutely called "our administrative system of criminal justice." A lone state employee in the form of a judge uses informal and often hurried and cursory procedures to decide whether a convicted defendant will get a lenient of harsh sentence. And the underlying facts in the Graham case (which made it to the Supreme Court for other issues) showed starkly how some judicial bureaucrats may often respond much too leniently at first and then much too harshly thereafter when administrating sentencing justice.
I do not mean this post to be a formal pitch for jury sentencing in all cases or an effort to assail the challenging and couragous decisions that federal and state sentencing judges must make every day. Rather, I just want to highlight my belief that the apparent acceptance of the Zimmerman verdict even by those who dislike the outcome is a sign of the procedural wisdom of the Constitution's embrace of a unique and uniquely valuable set of procedures — procedures that cases like Apprendi and Blakely (and now Southern Union and Allenye) wisely seek to extend to even more and more criminal justice adjudications.
Prior posts on Zimmerman prosecution:
- Zimmerman charged with second-degree murder in Florida shooting of Trayvon Martin (from April 2012)
- With all evidence now in, are there any (sentencing?) lessons in the Zimmerman prosecution? (from a few days ago)
Saturday, July 13, 2013
"Constitutionally Tailoring Punishment"The title of this post is the title of this great-looking new article by Richard A. Bierschbach and Stephanos Bibas. Here is the abstract:
Since the turn of the century, the Supreme Court has begun to regulate non-capital sentencing under the Sixth Amendment in the Apprendi line of cases (requiring jury findings of fact to justify sentence enhancements) as well as under the Eighth Amendment in the Miller and Graham line of cases (forbidding mandatory life imprisonment for juvenile defendants). Though both lines of authority sound in individual rights, in fact they are fundamentally about the structures of criminal justice. These two seemingly disparate lines of doctrine respond to structural imbalances in non-capital sentencing by promoting morally appropriate punishment judgments that are based on retail, individualized input and reflect the views and perspectives of multiple institutional actors.
This new understanding illuminates how both doctrines relate to the Court’s earlier regulation of capital sentencing and how checks and balances can promote just punishment in a pluralistic system. It also underscores the need for other actors to complete the Court’s work outside the confines of rights-based judicial doctrines, by experimenting with a broader range of reforms that are not constitutionally required but rather are constitutionally inspired.
July 13, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Blakely Commentary and News, Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack
Monday, June 24, 2013
Are 12 Alleyne GVRs (including one from Kansas) a sign of big Sixth Amendment things to come?
Busy on various fronts, I have not yet had time to think through all the impacts that the Supreme Court's Sixth Amendment work last week in Alleyne might produce. But today, via this SCOTUS order list, I see that there are 12 cases in which certiorari is granted and the judgment vacated, so the case can be remanded "for further consideration in light of Alleyne v. United States, 570 U.S. ___ (2013)."
Some GVRs after a big SCOTUS sentencing ruling are not always a big deal, as there can often be a number of cases in the cert pipeline that are just like the case in which the Supreme Court announced its new doctrine. But, in addition to being intrigued that there were at least a dozen Alleyne-type claims already in the SCOTUS pipeline that now led to these GVRs, I find especially notable that one comes from Kansas (Astorga v. Kansas) and thus involves a remanded "to the Supreme Court of Kansas for further consideration in light of Alleyne v. United States, 570 U.S. ___ (2013)."
My sense has been that Alleyne could and would not end up being nearly as disruptive to any state sentencing systems as Blakely had been. But this Kansas remand, as well my own sense that at least a few states relied on Harris for a while to keep some parts of their sentencing systems in tact, prompts the question in the title of this post.
June 24, 2013 in Apprendi / Blakely Retroactivity , Blakely Commentary and News, Blakely in the Supreme Court, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0) | TrackBack
Monday, June 17, 2013
First-cut reactions as to what is big, and not so big, about Alleyne's reversal of Harris
I will likely have a lot to say about the specifics of the Sixth Amendment discussions in all the Alleyne opinions later today once I get more time to review the decision more closely. But I have three quick reactions about the ruling and its potential impact I wanted to share right away. I will give this trio of reactions these labels: big, not-so-big, could-be-huge.
The Big of Alleyne: though serious talk of a "Booker" fix to the advisory guidelines sentencing system has not had much juice for a very long time, the Alleyne ruling serves as a final nail in the "mandatory topless guidelines" idea that made the rounds as a potential legislative response to Blakely and Booker in the federal system. That "fix," which would have required judges to do fact-finding to raise guideline minimums without impacting maximums, depended on the validity and vitality of Harris. And Harris is now a goner.
The No-So-Big of Alleyne: though persons imprisoned now based on mandatory minimums triggered by judicial fact-finding might hope Alleyne is a new jurisprudential key to freedom, a host of doctrices may ensure very few new imprisoned persons get much benefit from Alleyne. For starters, the retroactivity doctrines of Teague and AEDPA may make it hard for those long ago sentenced to get their Alleyne claims even heard in court. Moreover, the harmeless error doctrines of Cotton and Recuenco may make it easy now for judges to say, even in those cases in which the issue can still be raised, that any Sixth Amendment error was harmless.
The Could-Be-Huge of Alleyne: there are any number of shaky exceptions and carve-outs to the full application of Apprendi doctrines, ranging from the prior-conviction exception of Almendarez-Torres to all sorts of efforts by lower courts to refuse to acknowledge Apprendi's potential impact on all sorts of judicial fact-finding that impacts punishment realities. If Alleyne (which comes just a year after Southern Union) portends a Court now willing and eager to keep taking up Apprendi issues and extending the reach of the Sixth Amendment, we all might be in for quite an interesting Sixth Amendment ride over the next few Term. (And, for the really creative, perhaps Alleyne could be combined with Peugh to perhaps even generate procedural protections even for federal defendants sentencing in a post-Booker world.)
Prior related post on Alleyne ruling:
- Per Justice Thomas in 5-4 SCOTUS split, Alleyne extends Sixth Amendment to findings triggering mandatory minimums
June 17, 2013 in Almendarez-Torres and the prior conviction exception, Apprendi / Blakely Retroactivity , Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (13) | TrackBack
Thursday, March 15, 2012
Seeking early predictions on Southern Union (and Apprendi's future)
This coming Monday, the Supreme Court will hear oral argument on the biggest Apprendicase to come down the pike in a few years. SCOTUSblog has this effective new argument preview posted on the case, and here is how it begins:
On Monday, March 19, the Supreme Court will hear oral argument in Southern Union Co. v. United States, a case that could bring about profound changes in the way courts impose criminal fines, which serve as the principal sanction for organizations, including corporations. The Court will have to determine whether fines are subject to the principle announced in Apprendi v. New Jersey: “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.” To date, the Court has applied this principle only to the death penalty (Ring v. Arizona) and to sentencing schemes limiting years of incarceration a judge may impose in the absence of specific factual findings (Blakely v. Washington, United States v. Booker, Cunningham v. California, and Oregon v. Ice).
The issue arises in the context of an environmental criminal statute authorizing a prison term and a fine “per day” of violation. The jury was not asked to determine the number of violation days; it returned a general verdict of guilty. However, the court imposed a sentence based on the premise that the violation had occurred for more than one day. If the Supreme Court finds that the trial court engaged in judicial fact finding -- and if Apprendi applies to fines -- the sentence violates due process and the Sixth Amendment right to jury trial.
The decision in this case could turn on the Court’s assessment of the judicial role in imposing fines at the time of the Founders and whether fines -- the sanction for corporate “persons” -- are a fundamentally different punishment from incarceration. Considerations concerning the administration of justice may come into play. Finally, the opinion should clarify the significance of Oregon v. Ice, the Court’s most recent relevant precedent.
Another Southern Union preview can be found in this Greenwire piece, which includes this discussion of some underlying facts:
Seizing on the Apprendi ruling, Southern Union claims that only a jury can decide on the number of days the company was in violation of RCRA. Although a jury deliberated on the question of Southern Union's guilt, it was U.S. District Judge William Smith of the District of Rhode Island who imposed a total of $18 million in fines and fees based in part on how many days the mercury was illegally stored.
Under RCRA, the company faced a criminal penalty of up to $50,000 a day. The government had asserted in the indictment that the company was in violation for 762 days, meaning there was a maximum fine of $38.1 million.
Southern Union had opted to go to trial so it could argue that the mercury had not been abandoned and was therefore not a waste product. The company maintained it had stored the mercury carefully and that it would eventually be recycled. The mercury only became a problem when vandals broke into the facility and spilled some of the substance, which led to an expensive remediation process.
After considering the questions concerning the Apprendi ruling, Judge Smith imposed a $6 million fine and a $12 million community service fee. Smith concluded that the jury had found the company to be in violation for the entire period, which gave him the leeway to impose the penalty.
Southern Union had no luck when it appealed to the Boston-based 1st U.S. Circuit Court of Appeals. In December 2010, the court -- going further than Smith -- held Apprendi didn't apply to financial penalties. It based its ruling in part on a 2009 Supreme Court ruling, Oregon v. Ice, in which the high court, again split 5-4, said that Apprendi was not intended to expand the jury's role beyond what it has done in the past.
Southern Union and its supporters -- which include the National Association of Criminal Defense Lawyers and the U.S. Chamber of Commerce, who filed a joint amicus brief -- say the appeals court is out of sync with other courts around the country that have concluded that criminal penalties are covered by Apprendi....
Solicitor General Donald Verrilli, representing the Obama administration, insisted in his brief that the Supreme Court made clear in the 2009 Iceruling that judges must consider the historical role of the jury in deciding how to draw a line between the role of judges and juries. "This court has long recognized that criminal fines, even significant ones, raise fundamentally different concerns from terms of incarceration or the death penalty," Verrilli said.
The former is a "deprivation of property," while the latter is a "deprivation of liberty or life," he said. Verrilli delved into English common law in making the case that judges traditionally had "more discretion with respect to fines than they did in imposing terms of imprisonment or death."...
Whatever the court rules, it is not likely to directly affect a large number of cases. There are 15 federal statutes that impose fines based on the number of days of a violation, although a number of them concern violations of environmental regulations, including Clean Water Act permitting. "It's a narrow category of cases," said criminal law expert Ryan Scott, an associate professor at Indiana University's Maurer School of Law....
Supreme Court watchers are unsure how the court will rule, in large part because there are four serving justices who were not on the court when Apprendiwas decided and two -- Justice Elena Kagan and Justice Sonia Sotomayor -- have been appointed since Ice was decided. As Scott put it, it is an "unusually difficult one to guess."
I share Professor Scott's view that predicting an outcome, or even the votes of particular justices, in Southern Union is unusually difficult. I can make a plausible prediction that Southern Union could possibly win 9-0 because I doubt that the Court's still-remaining Apprendi dissenters (Justices Breyer and Kennedy) will be distinctly eager to prevent Apprendi's extension into this arena. And yet, in Ice, a one-time (though fickle) Apprendi supporter, Justice Ginsburg, wrote a broad opinion for the Court limiting Apprendi's reach and suggesting that she (as well as Justice Alito, who was another key swing vote in Ice) may be increasingly concerning about what could happen if Apprendi rights were extended into new sentencing settings. If Justice Ginsburg remains very concerned about the expanding the borders of Apprendi-land, I could imagine her (perhaps with the help of the Apprendi-haters) seeking to persuade some of the new Justices to draw another line in the jurisprudential sand here.
As my post title suggests, I am very eager to hear from readers concerning their perspectives on the Southern Union case in particular and on Apprendi jurisprudence more generally now that it is a full dozen years since the Sixth Amendment started playing a big role in sentencing law and policy.
Some recent related posts:
- SCOTUS to decide whether Apprendi applies to criminal fines via Southern Union
- Sixth and Eighth Amendment cases as notable amuse-bouche for SCOTUS health care litigation
- Top-side brief in Southern Union explains why Sixth Amendment Apprendi rule applies to fines
- How might newer Justices take on Apprendi jurisprudence in Southern Union?
Tuesday, January 17, 2012
Top-side brief in Southern Union explains why Sixth Amendment Apprendi rule applies to fines
All Apprendi/Blakely fans (and, for that matter, all Apprendi/Blakely haters) will want to check out this SCOTUS merits brief from the petitioner in Southern Union v. US, which was filed last week. Here is the start of the brief's statement of the case
This case raises the question whether the principle that this Court recognized and applied to sentences of incarceration in Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny, applies equally to the imposition of criminal fines. At the outset, the Court might wonder what the argument could be that the Apprendi principle does not apply to criminal fines, given that this Court’s explicit holding in Apprendi was that any fact that increases the “penalty” for a crime must be submitted to the jury and proved beyond a reasonable doubt, and criminal fines are unquestionably “penalties.” Indeed, prior to the decision below, federal and state courts uniformly held (or assumed) that Apprendi applies to the imposition of criminal fines. Even the United States agreed that the Apprendi principle applies to fines.
The decision below is the first to hold otherwise. It did so based on the court of appeals’ view that this Court’s opinion in Oregon v. Ice, 555 U.S. 160 (2009), announced a whole new methodology that fundamentally narrowed the Apprendi doctrine and also suggested that a court can use non-jury fact-finding to impose a fine that exceeds the maximum fine set by the legislature, which is what happened in this case. As shown below, this reading of Ice, a case which did not involve a criminal fine, is fundamentally flawed and ignores the fact that Ice was an exceedingly narrow ruling. In particular, the court of appeals’ historical understanding was at a minimum incomplete, and in all events did not support its conclusion that fines are outside the scope of Apprendi.
This Court should reverse the court of appeals’ holding because it would deprive criminal defendants of their fundamental jury trial rights in cases involving fines, and should vacate the fine imposed in this case (which was 360 times greater than that authorized by the jury’s verdict).
Many hard-core Apprendi/Blakely fans were justifiably puzzled by Ice, and this new case presents the Court with its first opportunity to explain if and how Ice was meant to recast the Apprendi/Blakely Sixth Amendment rules. Also, Southern Union will present the first crisp opportunity for the two newest Justices to indicate how they view Apprendi/Blakely Sixth Amendment rules, which could of course have profound long-term implications for all sorts of punishments beyond fines.
Wednesday, September 07, 2011
More than a decade later, has Justice Breyer finally accepted Apprendi?
The question in the title of this post is prompted by the latest great Sidebar piece in the New York Times by Adam Liptak. The piece is headlined "When Perpetual Dissent Removes the Blindfold," and this portion of the piece prompts the question I pose here:
Once an issue is decided, it is the law, and a justice on the losing side the first time around is obligated to follow the decision except in extraordinary circumstances. Yet the opposite approach is common. Whether as a matter of principle, pique or personal privilege, justices often assume that an initial dissent permits them to stick to their positions indefinitely, or at least for a long time.
In 2002 [in Harris], for instance, Justice Stephen G. Breyer acknowledged that the logic of a decision from which he had dissented two years before, Apprendi v. New Jersey, required juries, not judges, to determine the facts supporting some mandatory sentences. But, Justice Breyer wrote, “I cannot yet accept” the earlier decision.
By last year, Justice Breyer’s position seemed to be softening. “Well, at some point I guess I have to accept Apprendi, because it’s the law and has been for some time,” he said at an argument [in O'Brien].
On Sept. 26, the justices will decide which of the thousands of appeals that have piled up over the summer are worth their time. Among them is yet another case on the issue Justice Breyer was discussing.
It involves Jennifer Lynn Krieger, who pleaded guilty to giving a pain-medicine skin patch to a friend. The friend, Jennifer Ann Curry of West Frankfort, Ill., died after chewing the patch and taking an assortment of other drugs. The average sentence for a first-time offender who admits to distributing drugs like the one in the patch is seven months. The mandatory minimum sentence when “death results,” though, is 20 years.
Ms. Krieger was not charged with causing her friend’s death. She denied doing so, and no jury ever addressed that question. But Judge J. Phil Gilbert of the Federal District Court in Benton, Ill., looked at the evidence on this point in connection with sentencing Ms. Krieger and found it more likely than not that Ms. Curry’s death had been caused by the patch.
Judge Gilbert went on to say that he would have ruled differently had the government been required to prove beyond a reasonable doubt that the patch had caused Ms. Curry’s death. Reasonable doubt is, of course, the standard that juries are instructed to use in criminal trials.
Judge Gilbert did not seem happy about where all of this left him. He said he was required to impose the 20-year sentence even though it was “unduly harsh.”
“One cannot escape the conclusion that Krieger, while convicted of distribution” of drugs, he wrote, “is being sentenced for homicide.”
An appeals court upheld the decision even as it noted that the law in this area hangs by a “precariously thin” thread, partly because “Justice Breyer’s dedication to his position” in the 2002 case “may be waning.”
I have previously noted the remarkable Kreiger case in this post, and I would not be at all surprised if the Supreme Court takes up the case. And yet, as they did last year in the O'Brien case, the Justices could (and very well might) effectively dodge direct consideration of Apprendi and Harris and Blakely constitutional issues by ruling for the defendant on statutory interpretation grounds.
- A Harris test case?: Seventh Circuit affirms extraordinary sentencing factor enhancement
- Might the Harris limit on Apprendi be at risk with O'Brien cert grant?
- SCOTUS in O'Brien preserves (for now) McMillan precedent (to Justice Stevens' chagrin)
Thursday, July 21, 2011
Effective discussion of Apprendi's application to corporate fines
Thanks to this post at White Collar CrimProf Blog, I see that a District Court in California has issued an interesting and effective opinion in United States v. Au Optronics Corporation, No. C 09-00110 SI (N.D. Cal. July 18, 2011) (available here), concerning tha application of Apprendi to corporate fines. Here are snippets from the ruling:
In light of the fact that the maximum fine in this case will depend upon proof of the gain or loss caused by the conspiracy, the government seeks two related orders from the Court. First, claiming that evidence of the effects of the alleged antitrust conspiracy is irrelevant to the defendants’ guilt, the government requests that the Court bifurcate the trial into a guilt phase and a penalty phase. Second, claiming that criminal fines are exempt from the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), the government seeks an order that the evidence presented in the penalty phase need not be presented to a jury....
Until recently, there would have been little reason to doubt Apprendi’s applicability to fines. Two circuits had applied Apprendi’s holding to criminal fines....[But] last year the First Circuit held that criminal fines were exempt from Apprendi’s rule [based on dicta in the Supreme Court's Ice decision]....
The government argues that this Court should follow the First Circuit. Relying largely on the same reasoning as the First Circuit, it contends that under historical practices fines fell within the sole discretion of the trial judge.... The government argues that this historical practice renders Apprendi inapplicable to the fines in this case.
The Court is unconvinced. As an initial matter, the Supreme Court’s statement in Ice is dicta, made without the benefit of briefing or argument in a case whose facts do not remotely resemble the facts of this case. While, of course, Supreme Court dicta is compelling, losing sight of Apprendi’s mandate based upon one clause in Ice risks losing the forest for the trees.....
The fine in this case is the primary form of punishment the government seeks and could amount to as much as $1 billion, ten times more than the fine authorized by the Sherman Act. The magnitude and primacy of such punishment puts it in a separate class from an ordinary criminal fine imposed against a defendant who faces incarceration. In the Court’s view, this is reason enough to apply Apprendi’s mandate and require a jury to find the amount of gain or loss under the alternative fines statute.
The historical practices the government has cited simply do not seem well suited for the situation before the Court, where incarceration -- or whippings, for that matter -- is not a penalty the Court can impose. The Sherman Act authorizes a maximum fine of $100 million. Should the government wish to go beyond that act’s authorization and seek a significantly larger fine based upon the establishment of additional facts, it must do so by following Apprendi’s mandate, and by proving those facts to a jury beyond a reasonable doubt.
Wednesday, October 20, 2010
New Mexico Supreme Court rejects Apprendi/Blakely challenge to judicial findings for enhanced juve sentencing
As detailed in this brief local AP article, the New Mexico Supreme Court "has ruled it's constitutional for a judge to determine whether juvenile offenders can be sentenced as adults for certain violent crimes." Here are the basics:
The justices issued a 4-1 ruling on Tuesday overturning a 2009 decision by the state Court of Appeals, which held that a jury rather than a judge should make the sentencing decision. Justice Edward Chavez dissented, saying juvenile offenders are entitled to the same constitutional jury protections given to adults.
At issue is a sentencing procedure for "youthful offenders" --- those 14 to 18 years old found guilty of violent felonies, including second-degree murder and robbery. Judges can impose adult sentences only if they determine an offender is not amenable to treatment in the juvenile justice system.
I have not yet been able to find a copy of this ruling on-line, but I will post it when I do. Depending on the particulars, this case might serve as an interesting vehicle for taking a long-simmering, and quite interesting, post-Apprendi-Blakely issue up to the U.S. Supreme Court.
UPDATE: The full opinion from the NM Supreme Court is now available at this link.
Friday, September 03, 2010
"Of Rebels, Rogues and Roustabouts: The Jury's Second Coming"
The title of this post is the title of this new piece from Professor Jenny Carroll now appearing on SSRN. As its abstract reveals, this paper would be a timely read for anyone eager to think about the labors of juries during this Labor Day weekend:
This article examines the role of the jury in a post-Apprendi justice system. Apprendi and its progeny recognize the vital role the jury plays in establishing the legitimacy of criminal convictions and sentences. I contend that the Apprendi line confirms the jury’s responsibility, as representatives of the community, to give the law meaning in their determination of criminal culpability. In this, Apprendi seeks to restore the original role of the jury as the bridge between the law itself and the community the law seeks to regulate.
This restoration is incomplete, and the jury’s true significance cannot be realized, without a recognition of the jury’s original right to judge law as well as fact. Only through the revitalization of this power to nullify can the jury assume its intended role and provide community sanction to the designation of criminal culpability. I conclude that democracy, and indeed the underlying goals of the criminal justice system, are best served when criminal processes allow forums for dissenting perspectives and juries are allowed to assess both the legal and factual bases of guilt.
Tuesday, June 29, 2010
"Civil, Criminal, or Mary Jane: Stigma, Legislative Labels, and the Civil Case at the Heart of Criminal Procedure"The title of this post is the title of this new piece on SSRN by Professor W. David Ball. David always has interesting stuff to say about the Supreme Court's Apprendi jurisprudence, and the abstract to this article spotlights this fact:
In criminal cases, any fact which increases the maximum punishment must be found by a jury beyond a reasonable doubt. This rule, which comes from Apprendi v. New Jersey, looks to what facts do, not what they are called; in Justice Scalia’s memorable turn of phrase, it applies whether the legislature has labeled operant facts “elements, enhancements, or Mary Jane.” Civil statutes, however, can deprive an individual of her liberty on identical facts without needing to meet the beyond a reasonable doubt standard of proof. If Apprendi is, indeed, functional, why is it limited to formally criminal cases? Why does it not apply to all punishments, no matter whether they are called civil, criminal, or Mary Jane?
One often-proposed answer is that Apprendi derives its holding exclusively from the Sixth Amendment, and the Sixth Amendment applies only to “criminal prosecutions.” Apprendi is not, however, just a Sixth Amendment case. Its “beyond a reasonable doubt” requirement comes from due process -- specifically, from a formally civil case, In re Winship, which explicitly rejects the idea that civil labels can insulate a state from heightened procedural obligations. Apprendi’s application cannot, therefore, be limited on formal grounds to criminal cases. To determine the limits of its application, one must instead return to the interests that both Winship and Apprendi identify as worthy of protection: the imposition of stigma and the deprivation of liberty.
This Article examines the due process roots of the Apprendi line and proposes that stigma is the substantive concern that separates retribution from regulation, punishment from public safety. Using sociology’s modified labeling theory, I provide a substantive definition of stigma and explore how a unified due process approach, with stigma at its heart, might provide a more meaningful way to separate punishment from risk management. This approach would move judicial discourse away from empty, taxonomic arguments about legislative labels towards an examination of the effects laws have on the lives of those subjected to them, a conversation which would more accurately and comprehensively address the values and interests at the heart of the justice system.
Monday, May 24, 2010
Notable statutory interpretation embrace of a basic offense/offender distinction for elements and sentencing factorsAs long-time readers or hard-core sentencing fans may know, when I was first trying to make sense of Blakely, I was drawn to distinguishing between offense conduct and offender characteristics in the application of Apprendi's "bright-line rule." I first developed this idea in my Conceptualizing Blakely article, advanced it in a StanfordLaw Review article, and further unpacked it (with Stephanos Bibas) in Making Sentencing Sensible article in the Ohio State Journal of Criminal Law. As explained in Conceptualizing Blakely, I believe an offense/offender distinction helps give conceptual content to the prior conviction exception, better links the Apprendi rule to the express text of the Constitution, and resonates with the distinctive institutional competencies of juries and judges.
As detailed in this post right after the Supreme Court's 2007 Sixth Amendment ruling in Cunningham v. California, Justice Kennedy's dissenting opinion in Cunningham praised an offense/offender distinction as providing a "principled rationale" for the application of the Apprendi rule: "The Court could distinguish between sentencing enhancements based on the nature of the offense, where the Apprendi principle would apply, and sentencing enhancements based on the nature of the offender, where it would not." But Justice Kennedy was writing in dissent and footnote 14 of Justice Ginsburg's majority opinion in Cunningham asserts that "Apprendi itself ... leaves no room for the bifurcated approach Justice Kennedy proposes."
Against this backdrop, I found especially interesting and notable this passage from the Court's opinion today in O'Brien (which just happens to be authored by Justice Kennedy):
Sentencing factors traditionally involve characteristics of the offender — such as recidivism, cooperation with law enforcement, or acceptance of responsibility. [Castillo, 530 U.S.] at 126. Characteristics of the offense itself are traditionally treated as elements, and the use of a machinegun under §924(c) lies “closest to the heart of the crime at issue.” Id., at 127.
As the cites reveal, the Supreme Court made a somewhat similar set of statements a decade ago in its Castillo ruling. But this O'Brien articulation of an offense/offender distinction for statutory interpretation purposes seems especially crisp and clean here. Perhaps in the future Justice Kennedy might be able to get a few of the new Justices to give this distinction constitutional significance in some future elaborations of the Apprendi/Blakely line of decisions.
SCOTUS in O'Brien preserves (for now) McMillan precedent (to Justice Stevens' chagrin)Based on a quick review of all of today's SCOTUS action, the biggest news for hard-core sentencing fans seems to be the continued preservation of the McMillan/Harris mandatory minimum "exception" to Apprendi/Blakely Sixth Amendment rule by virtue of the Supreme Court's decision to decide the O'Brien case for the defendants on statutory grounds. Justice Stevens, in what may serve as his last word on the Apprendi/Blakely Sixth Amendment jurisprudence make this final statement at the end of his notable separate (and solo) concurrence:
In my view, the simplest, and most correct, solution to the case before us would be to recognize that any fact mandating the imposition of a sentence more severe than a judge would otherwise have discretion to impose should be treated as an element of the offense. The unanimity of our decision today does not imply that McMillan is safe from a direct challenge to its foundation.
But the fact that nobody signed on to retiring Justice Stevens' separate opinion in the O'Brien case may, in fact, imply that McMillan is going to remain safeguarded from a direct challenge to its foundation for perhaps a long time.
Friday, May 14, 2010
Texas jury returns life sentence based on unconvicted and uncharged conductA helpful reader forwarded to me this fascinating local sentencing story out of Texas. The report is headlined "Prieto gets life in prison for beating," and here are the details:
Enrique Prieto could have walked out the courthouse door a free man, but instead he is going to prison for life. A Lubbock County jury sentenced Prieto, 41, to life in prison for robbing and beating an elderly man in September 2008.
Prieto on Monday pleaded guilty to the aggravated robbery of then-71-year-old Danny Moore, who he beat with a saw and pipe before taking his wallet and truck. "With a life sentence and maximum fine, justice was served to this defendant for what he did in this case," prosecutor Jaret Greaser said....
Prieto was eligible for probation because he had never been convicted of a felony, but he did have multiple felony charges pending against him.
Prosecutors spent three days essentially trying to prove those charges to jurors in hopes they would levy the maximum penalty for the aggravated robbery. Jurors heard evidence that Prieto burglarized another home while out on bond.
Perhaps the nail in Prieto's coffin was the testimony from one of his daughters, who said he raped her from the time she was 6 or 7 years old until she was 13 years old.
Prieto's wife testified the girl's story was improbable because she would have known if Prieto was abusing their daughter, but a sexual assault nurse said the girl had penetrating injuries consistent with a history of long-term abuse.
Prosecutors told jurors in closing arguments to focus on all the charges against Prieto. "This case is so much more than just that aggravated robbery," assistant district attorney Mandi Say said....
The jury deliberated for a little more than an hour before returning the life sentence.
This little story has so many interesting elements, I could imagine structuring an entire seminar focused on the question about whether this case vindicates or eviscerates the constitutional principles developed in Apprendi and Blakely.
If we think the most important constitutional principles of Apprendi and Blakely concern ensuring that a jury of peers, rather than just an "elite" judge, be involved in determining sentencing outcomes, then one might conclude that these Sixth Amendment interests were vindicated in this case. But I tend to read Blakely and especially Apprendi as expressing concerns about sentences being increased based on facts not found by traditional due process standards.
I suspect that at least some members of the Apprendi and Blakely majorities would be troubled by how Prieto got a life sentence. Moreover, I suspect even some members of the Apprendi and Blakely dissents might be a bit worried as to whether Fifth Amendment due process interests were fully served here (especially if Prieto did not get advance notice that his sentencing on the aggravated robbery conviction was going to be a essentially a trial and sentencing on his daughter's allegations of rape). And, of course, three members (and soon to be four) members of the current Supreme Court were not Justices at the time of Apprendi and Blakely and thus we can only speculate about what they may think about how Prieto got a life sentence here.
Tuesday, May 04, 2010
Lengthy split Seventh Circuit panel ruling on ACCA and juve predicatesA split Seventh Circuit panel has an interesting (and quite lengthy) discussion of proper application of the Armed Career Criminal Act and of use of juvenile prior to trigger ACCA's increased sentenced. The majority opinion in Welch v. US, No. 08-3108 (7th Cir. May 4, 2010) (available here), gets started this way:
In 2005, Devin Welch pleaded guilty to unlawful possession of a firearm by a felon. He then brought a motion under 28 U.S.C. § 2255 to vacate his sentence. The district court denied the § 2255 motion in pertinent part. We granted a certificate of appealability to address two of Mr. Welch’s contentions. First, he submits that his prior conviction for the Illinois crime of aggravated fleeing or attempting to elude a police officer cannot qualify as a “violent felony” within the meaning of the Armed Career Criminal Act (“ACCA”). Second, he submits that his prior juvenile adjudication cannot be used to enhance his sentence beyond the statutory maximum because it was not obtained by a jury trial. For the reasons set forth in this opinion, we affirm the judgment of the district court.
A forceful dissent authored by Judge Posner assails the majority's conclusions on both grounds, and it includes an especially interesting discussion of Apprendi prior conviction issues. Here is how that discussion concludes:
Of particular relevance to Apprendi, the literature finds that judges are more likely to convict in juvenile cases than juries are. They are exposed to inadmissible evidence; they hear the same stories from defendants over and over again, leading them to treat defendants’ testimony with skepticism; they become chummy with the police and apply a lower standard of scrutiny to the testimony of officers whom they have come to trust; and they make their decisions alone rather than as a group and so their decisions lack the benefits of group deliberation. It would be hasty to conclude that juvenile court judges are more prone to convict the innocent than juries are. But if it is true that juvenile defendants fare worse before judges than they would before juries — if there is reason to think that trial by jury would alter the outcomes in a nontrivial proportion of juvenile cases — one cannot fob off the Apprendi argument with the observation that a jury makes no difference.
Only the Supreme Court can decide authoritatively what its decisions mean. But the government’s inability to give a reasoned basis for that position is telling, and the better view, I believe, is that a juvenile court “conviction” is not usable for enhancing a federal sentence.
Wednesday, April 28, 2010
Is anyone still preserving Apprendi/Blakely challenges to judge-determined restitution awards?
Thanks to the Supreme Court deciding only civil cases this week, I have finally found time to read the argument transcript from last week's SCOTUS oral argument in Dolan v. US (which is available at this link). There are lots of interested aspect of the Dolan transcript ranging from frequent discussion of what is a final sentence to the potential impact of the 3553(a)'s requirement that district judges consider the need for restitution.
But one particular line from the start of one of Justice Scalia's questions to the Government prompts my question in the title of this post. Specifically, on page 31 of the Dolan transcript, Justice Scalia starts a line of questioning by saying "I think it's bad enough to have the issue of whether this victim suffered $100,000 damages decided by the judge...." In addition, on pages 51-52 of the Dolan transcript Justice Scalia suggest with another line of questions that he is troubled by the fact that "it's the judge who finds that the victim suffered so much money" and that the judge does not use a beyond a reasonable doubt standard when making this finding.
In other words, it appears that Justice Scalia remains quite concerned that the constitutional requirements imposed on sentencing determinations in Apprendi and Blakely are not being applied with respect to the fact-finding involved in the setting of criminal restitution awards. Thus, despite the fact that every circuit has rejected arguments to apply Apprendi and Blakely to restitution awards, there is at least one Justice (and perhaps there are more) who might be eager to give some new life to these kinds of claims.
I fear that few defendants even try to preserve Apprendi/Blakelychallenges to judge-determined restitution awards since these claims never got any real traction in lower courts after Blakely. But the Dolan transcript suggests that perhaps these claims ought still be preserved and pressed all the way up to the Justices.
Friday, April 23, 2010
Questionable(?) DC Circuit ruling on safety-valve burden of proof
The DC Circuit has a very intriguing little opinion this morning in US v. Gales, No. 08-3040 (DC Cir. Apr. 23, 2010) (available here), concerning burdens of proof and eligibility for statutory safety valve relief from an applicable mandatory minimum sentencing term. At issue in Gales is whether the defendant satisfied the safety valve requirement to truthfully provide all information about his offense: the defendant claimed he did, prosecutors claimed he did not. After saying it was not clear error for the district court to not believe the defendant, the DC Circuit has to respond to these claim by the defendant about the applicable burdens of proof:
Gales contends that the district court “misunderstood and misapplied” the burden of proof under the safety valve provision, claiming that after the government expressed its doubts to the district court about Gales’ story concerning his drug supplier, the district court shifted the burden of proof to Gales to prove that he had not lied. Gales argues that such an “impossibly high burden” is not imposed by the law. Instead he claims that once he made a credible showing that his story was truthful and complete, it was the government’s burden to present evidence showing otherwise....
Gales [further] contends that when the district court stated that the way the safety valve works is for Gales to give the government “the answer they want,” the court was giving the government the same discretion it has pursuant to the Sentencing Guidelines’ substantial assistance provision, U.S.S.G. § 5K1.1. That is, the district court was allowing the government to prevent him from receiving relief under the safety valve. According to Gales, this was not Congress’ intent.
Relying on the Circuit's (pre-Blakely) precedent, the panel in Galesrejects the contention that there is any problem with placing the burden on the defendant to establish "his story was truthful and complete." In other words, the defendant here gets subject to a 5-year mandatory minimum especially because he could not satisfy his burden of proving that "his story was truthful and complete."
As my quick reference to Blakely above is meant to suggest, there could be possible constitutional arguement (based in the Fifth Amendment more than the Sixth Amendment) against an interpretation of a statutory scheme that functionally increases the defendant's sentence because he fails to prove his admissions of guilt were truthful and complete. More fundamentally, I think constitutional doubt and rule of lenity statutory construction principles suggest, at least to me, that the proof burden should be on the government in this kind of setting.