Sentencing Law and Policy

Lots of details on the new SCOTUS sentencing cases

Via SCOTUSblog at this post, I can provide here more information and links to key documents in the exciting new sentencing cases taken up by the Supreme Court this morning:

[T]he Court had been holding one of today’s granted petitions, Hill v. United States, to be considered alongside several other petitions that raise the same issue:  whether the Fair Sentencing Act (which reduced the crack-powder sentencing differential) applies in an initial sentencing proceeding that takes place on or after the statute’s effective date if the offense occurred before that date.... Hill has been consolidated with Dorsey v. United States (case page forthcoming), for a total of one hour of argument....

Hill v. United States (Granted)

Docket: 11-5721
Issue(s): Whether the Fair Sentencing Act of 2010 applies in an initial sentencing proceeding that takes place on or after the statute’s effective date if the offense occurred before that date.

Certiorari stage documents:

• Opinion below (7th Cir.)
• Petition for certiorari
• Brief for the United States
• Petitioner's reply (forthcoming)

 

Southern Union Company v. United States (Granted)

Docket: 11-94
Issue(s): Whether the Fifth and Sixth Amendment principles that this Court established in Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny, apply to the imposition of criminal fines.

Certiorari stage documents:

• Opinion below (1st Cir.)
• Petition for certiorari
• Brief in opposition
• Amicus brief of U.S. Chamber of Commerce and the National Association of Criminal Defense Lawyers
• Petitioner's reply

Recent related posts on the new SCOTUS cases:

• SCOTUS to review FSA pipeline issue via Dorsey and Hill grants
• SCOTUS to decide whether Apprendi applies to criminal fines via Southern Union

SCOTUS to decide whether Apprendi applies to criminal fines via Southern Union

Sentencing fans have their SCOTUS cups running over this morning: in addition to the cert grants on a pair of cases dealing with the application of the statutory crack sentences in Dorsey and Hill (basics here), the Supreme Court also grant cert on a long-simmering Apprendi issue: namely whether standard of proof jury trial rights set forth in Apprendi and its progeny apply to the imposition of criminal fines.   This issue is to be reviewed in Southern Union Company v. United States, No. 11-94.  Wowsa!

With the juve LWOP homicide cases of Jackson and Miller to give more content to the Eighth Amendment, and now this Southern Union case to further unpack the meaning and reach of Apprendi and Blakely, the current SCOTUS Term is shaping up to be huge for sentencing fans.  Can you tell I am already giddy with anticipation?

P.S.: On the Sixth Amendment front, the Supreme Court also granted cert today on a case dealing with the application of harmless error review for the admission of hearsay statements in a case named Vasquez v. US.  I am not sure Vasquez has any likely sentencing bite, but I am sure the Justices seem interested in resolving a significant number of criminal justice issues this Term.)

A Harris test case?: Seventh Circuit affirms extraordinary sentencing factor enhancement

Among the many "quirks" in the modern Apprendi/Blakely Sixth Amendment jurisprudence from the Supreme Court is the Harris mandatory minimum exception to the rule requiring jury findings of important sentence-enhancing facts. This "quirk" in on full display in the Seventh Circuit's fascinating ruling today in US v. Krieger, No. 09-1333 (7th Cir. Dec. 7, 2010) (available here), in which a panel affirms a 20-year mandatory minimum sentence based on judicial fact-finding about the defendant's drug crime resulting in a friend's death.

The panel decision in Krieger has too many interesting and notable facets to summarize in one post.  So I will just quote from one part of the opinion which spotlights why this is a possible test case for the Supreme Court to perhaps reconsider the logic and persistence of Harris:

Krieger’s pre-sentencing report set forth a recommended sentencing range of ten to sixteen months. The government filed objections, arguing that the court should find that Curry’s death resulted from Krieger’s distribution of fentanyl, thus triggering a mandatory minimum sentence of twenty years under 21 U.S.C. § 841(b)(1)(C)....

On January 16, 2009, the district court issued its order, finding, by a preponderance of the evidence, that the fentanyl supplied by Krieger resulted in the death of Curry....  In view of the conflicting evidence as to the cause of Curry’s death, the court concluded that the government would not have been able to prove, beyond a reasonable doubt, that Krieger’s distribution of fentanyl was the cause of Curry’s death, had Krieger been charged with that offense.  The court was persuaded, however, that a preponderance of the evidence established fentanyl as the cause of Curry’s death, and concluded that “the Government has established that it is more probable than not that Ms. Krieger’s distribution of fentanyl to Ms. Curry resulted in Ms. Curry’s death.” (R. at 154, p.8).

Once the court made the finding, by a preponderance of the evidence, that death resulted, it concluded that it was obligated to impose the mandatory statutory minimum under § 841(b)(1)(C) “if death results” — twenty years....

The outcome in this case highlights the critical nature of the distinction between sentencing factors and elements.  In this case, without death resulting, the maximum penalty for distributing small amounts of fentanyl would have been twenty years, with no minimum penalty. 21 U.S.C. § 841 (b)(1)(C) (“In the case of a controlled substance in schedule I or II . . . such person shall be sentenced to a term of imprisonment of not more than 20 years.”).  In cases where death results from the distribution, the sentence increases to a minimum of twenty years and a maximum of life in prison. Id.  Once a court makes a finding that triggers a mandatory minimum sentence, it has no choice but to impose that sentence.

En banc Second Circuit rejects Apprendi challenge to NY persistent felony statute

It has been quite some time since Sixth Amendment fans have had a big, split Apprendi/Blakely opinion to chew on.  Today the Second Circuit has filled the void with a big, split en banc ruling in Portalatin v. Graham, 07-1599 (2d Cir. Oct. 18, 2010) (available here).  Here is how the majority opinion (per Judge Wesley) gets started:

Petitioners Carlos Portalatin, William Phillips, and Vance Morris were separately convicted in state court and received sentences pursuant to New York’s persistent felony offender statute, N.Y. Penal Law § 70.10.  Each petitioned for a writ of habeas corpus on the ground that the New York courts engaged in an unreasonable application of clearly established federal law in affirming their sentences.  Specifically, they argue that the Sixth Amendment guarantee of the right to an impartial jury, as construed by the Supreme Court in Apprendi v. New Jersey, 530 U.S. 466 (2000) and its progeny, proscribes the long-used sentencing procedure in New York that results in judicially enhanced sentences for certain recidivist offenders.

In the case of petitioner Portalatin, the United States District Court for the Eastern District of New York agreed, issuing a writ of habeas corpus from which the State now appeals. See Portalatin v. Graham, 478 F. Supp. 2d 385, 386 (E.D.N.Y. 2007) (Gleeson, J.). In the cases of petitioners Phillips and Morris, the United States District Court for the Southern District of New York separately declined to issue such writs. See Phillips v. Artus, No. 05 Civ. 7974, 2006 WL 1867386, at *1 (S.D.N.Y. June 30, 2006) (Crotty, J.); Morris v. Artus, No. 06 Civ. 4095, 2007 WL 2200699, at *1 (S.D.N.Y. July 30, 2007) (Sweet, J.). Petitioners appealed.

In a consolidated appeal, a panel of this Court concluded that New York’s persistent felony offender sentencing scheme violates the Sixth Amendment, and that the New York courts unreasonably applied clearly established Supreme Court precedent in holding otherwise, but remanded the matters to the district court for consideration of whether those errors were harmless. See Besser v. Walsh, 601 F.3d 163, 189 (2d Cir. 2010).

A majority of judges in active service then called for this rehearing en banc. The Court now holds that the state courts did not engage in an unreasonable application of clearly established Supreme Court precedent in affirming the convictions. Accordingly, the grant of the writ to Portalatin is reversed, and the denials of the writ to Phillips and Morris are affirmed.

Here is a key passage from the start of Judge Winter's dissent:

My colleagues rely heavily upon AEDPA deference but identify only one constitutional argument dispositive of the claims of all petitioners -- regarding the applicable maximum sentences for Apprendi purposes -- and that one has been specifically rejected by the Supreme Court in Cunningham v. California, 549 U.S. 270 (2009) and Blakely v. Washington, 542 U.S. 296 (2004).  Except for that discussion, my colleagues’ opinion never responds directly to petitioners’ claims and proffers no other identifiable constitutional theory to which AEDPA deference can be given.

We can all be virtually certain that one or more of the losing NY defendants in this case will appeal to the US Supreme Court. Less clear is whether the current Justices are interested in another round of Apprendi/Blakely squabbling. I would not be suprised if new Justices Alito and Sotomayor have an interest in sharing their perspectives on the reach of Apprendi/Blakely, but I also would not be surprised if most of the other Justices are content to take a pass.

SCOTUS confirmation that the prior conviction excpetion to Apprendi is here to stay

Sentencing and clemency guru Margaret Colgate Love wrote me today to suggest that the biggest sentencing news coming from all today's SCOTUS action (basics here) is to be found in the immigraion case Carachuri-Rosendo v. Holder (available here).  In Carachuri-Rosendo, the Justices ruled that "that second or subsequent simple possession offenses are not aggravated felonies [requiring deportation] under §1101(a)(43) when, as in this case, the state conviction is not based on the fact of a prior conviction." And here is what Margaret Colgate Love had to say about why this is a notable ruling for sentencing fans:

Biggest news this morning on sentencing front is in Carachuri-Rosendo [because the] Court unanimously backs away from constitutionalizing recidivist sentencing. It reaffirms Almendarez-Torres, both on 5th and 6th A grounds and nobody says a word in defense of overruling it. Thomas concurred apparently just to let us know rather gracefully, by not mentioning A-T, that he has given up hope of Court overruling it.  (It seems that all the hype in circuits about A-T being on life support was just that.)

The Court also said that notice of intention to charge priors under 851 was not constitutionally compelled. Stevens was all business, no prose more purple than "counterintuitive and unorthodox." Though 851 has no constitutional underpinning, it is a way to limit recidivist enhancements in drug cases.  As to other types of enhancements, I thought his note 12 was very significant for ACCA and other gun recidivist enhancements, in requiring that prior must appear as part of the judgment or formal charging document (a fairly substantial expansion/clarification of Shepard).

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.

Oral argument transcript finally available for in O'Brien/Burgess case

I am pleased to finally be able to report that the Supreme Court now has posted here the transcript for Tuesday morning's oral argument in United States v. O'Brien and Burgess, the combined cases concerning the application of the machine-gun mandatory minimum sentencing enhancement of 18 U.S.C. § 924(c).  I have heard from multiple source that Blakely fans will want to give this a close read, and that's my plan as I jump on a plane this afternoon to head to Miami (more on that later).  I hope to have comments on the argument in a future post, but I hope readers do not wait for me to opine on this argument's merits (or demerits).

Some recent related posts:

• Might the Harris limit on Apprendi be at risk with O'Brien cert grant?
• Might Apprendi be at risk with O'Brien cert grant?
• Might the Harris limit on Apprendi be questioned in O'Brien/Burgess argument?

Might the Harris limit on Apprendi be questioned in O'Brien/Burgess argument?

As detailed in this post at SCOTUSblog, on Tuesday morning the Supreme Court will hear oral argument in United States v. O'Brien and Burgess, a combined pair of cases concerning the application of the machine-gun mandatory minimum sentencing enhancement of 18 U.S.C. § 924(c).  As regular readers may recall from posts here and here back when cert was granted in these cases, the Apprendi Sixth Amendment line of cases (and especially the Harris mandatory minimum exception) may be in play and at issue in these case.

After reviewing the merits briefs in O'Brien and Burgess (which are available here thanks to the ABA), my gut tells me that the Justices will be drawn to ruling for the defendants on statutory interpretation grounds, which will allow the Court to dodge all the tough constitutional questions that a ruling for the government could present.  But my gut instinct about a lot of SCOTUS sentencing issues is rarely spot-on, and I suspect that the validity of Harris might come up during Tuesday's oral argument even if the majority of Justices are inclined to resolve O'Brien and Burgess on statutory interpretation grounds.

For those eager to gear up for the O'Brien and Burgess argument by giving thought to the possibility of overruling the Harris mandatory minimum exception to the Apprendi Sixth Amendment rule, I recommend the amicus brief filed by NYU Center for the Administration of Criminal Law (with which I helped a bit). That brief makes a serious argument for now doing away with Harris mandatory minimum exception to the application of the Apprendi doctrine.

Are Apprendi and Blakely Justice Stevens' most favorite opinions?

This morning's USA Today includes this lovely front-page articleby Joan Biskupic about Justice Stevens. The piece, which is headlined "Supreme Court's Stevens keeps cards close to robe; Long-serving justice, 89, a force behind the scenes," is a must-read for all SCOTUS fans.  But sentencing fans might take particular note of this line reporting on what Justice Stevens' said during Biskupic's recent interview:

On opinions he finds noteworthy, he cited cases in which he crafted a narrow majority to enhance the role of juries in criminal sentencing.

Of course, the cases referenced here have to be his own 2000 Apprendi decision and the 2004 Blakely decision (which was authored by Justice Scalia, of course).  

The fact that Justice Stevens would make special mention of Apprendi and Blakely in this recent interview leads me to two questions, one backward looking and one forward looking: (1) if Justice Stevens remains proud of his work in Apprendi andBlakely, just why did he end up providing the key fifth vote to limit the reach of this jurisprudence in last Term's Ice case?, and (2) in light of his apparent affinity for Apprendi and Blakely, might Justice Stevens work extra hard this Term (which likely will be his final Term) to reverse the Harris mandatory minimum exception to Apprendi?

Some related recent posts:

• Might the Harris limit on Apprendi be at risk with O'Brien cert grant?
• Might Apprendi be at risk with O'Brien cert grant?
• Should the ALI and other academics actively urge SCOTUS to reverse Harris in O'Brien?

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. 

Some related recent posts:

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

Might Apprendi be at risk with O'Brien cert grant?

In this post concerning the Supreme Court's grant of cert this week in US v. O'Brien, I reprinted the thoughtful notion by Kevin Reitz that the Harris mandatory minimum limit on the Apprendi might be subject to reversal in O'Brien.  But one commentor in that thread suggested that maybe the spirit might be moving the other way:

[T]he question presented in O'Brienis extremely broad.  So broad, I fear, that it could conceivably accommodate the overruling of Apprendi itself -- accommodate 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'Brienbecause 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.

Wow, that is some wild fanciful and paranoid speculation, especially given that Chief Justice Roberts seem to have some affinity for Apprendi-land as evidenced by his votes in Cunningham and Ice.  In addition, I would be very surprised to see the Solicitor General or anyone else actively advocate overruling Apprendi anytime soon.  Moreover, Justice Stevens has said that he would like to see Harris overruled, and so I think he will likely be working harder this (last?) term to extend Apprendi and will not take kindly to any move to undo his efforts there.

That all said, all these comments usefully highlight is the unsteady and uncertain status of all aspects of the entire Apprendi-Blakely-Booker jurisprudence, and O'Brien may thus be especially important for giving us an update on all the current Justices' take on this crazy-mixed-up Sixth Amendment stuff.

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.

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.

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."

Fascinating SCOTUS split in rejecting Blakely's application to consecutive sentencing

The Supreme Court has today handed down its latest Blakely ruling with its decision in Oregon v. Ice.  Here is the early report from SCOTUSblog:

The Court has released the opinion in Oregon v. Ice (07-901), on whether judges may impose consecutive sentences based on facts neither found by the jury nor admitted by the defendant. The ruling below, which found for the defendant, is reversed and remanded. Justice Ginsburg wrote the majority opinion. Justice Scalia wrote a dissenting opinion, joined by the Chief Justice and Justices Souter and Thomas. The ruling is now available here.

The break down of the Justices in the 5-4 ruling is fascinating, and I am sure I will have a lot more to say about the Court's efforts here in future posts.

I suppose I need to start my commentary, however, by taking back this recent comment that the Supreme Court is most pro-defendant appellate court in the nation on sentencing issues.  But, of course, proving again that Blakely issues make for strange voting block, three supposedly liberal Justices (Breyer, Ginsburg and Stevens) are the key to the defendant's loss in Ice.

Two very different takes on Ice

Two top-notch court watchers have two very different perspectives on what yesterday's oral argument in Oregon v. Ice might mean for the future of the Apprendi/Blakely line of Sixth Amendment cases.  Lyle Denniston, in this long post at SCOTUSblog, starts his summary of the Ice argument this way:

With Justice Stephen G. Breyer waging, seemingly alone, a rear-guard effort to limit juries' fact-finding role in determining criminal sentences, the Supreme Court on Tuesday displayed a strong inclination to stay on course in the eight-year effort to add to the jury’s power.

In sharp contrast, Kent Scheidegger, in this long post at Crime and Consequences, ends his post with this radically different assessment:

This looks pretty good for the state.  Justices Stevens and Ginsburg, both essential votes for the extension of Apprendi in Booker, seem to be reluctant to extend it this far.

My first read of the Ice transcript led me toward Lyle's assessment, but I have long given up making serious predictions about anything concerning what the Justices are going to be doing in the Apprendi/Blakely line of constitutional rulings.  However, the fact that the traditional left/right divide does not hold in this Sixth Amendment setting perhaps explains why the Court's efforts even at oral argument are hard to assess (and also explain why I find this jurisprudence so interesting).

Some related Ice posts:

• Ice oral argument transcript now available
• The little Ice case that could (but probably won't)...

Ice oral argument transcript now available

I have not yet had a chance to review the Ice oral argument transcript, but it is now available at this link.  As explained in this preview post, the Ice case has the potential to heat up or cool down lower court debates over the reach of Blakely and the limits of judicial fact-finding at sentencing.

I plan to post later on anything really significant that jumps out from the oral argument transcript.  In the meantime, readers are encouraged to use the comments to give their views on whether the Ice argument proved to be hot or cold.

UPDATE:  After a quick read of the transcript, I was surprised and somewhat disappointed that the jurisprudential discussion of Apprendi and Blakely has not become more advanced and sophisticated even a full decade into this modern Sixth Amendment debate. That said, I was surprised and somewhat pleased to see pro-Sixth Amendment instincts expressed by nearly every member of the Cunningham six during the Ice argument (though Justice Thomas remained his usual quiet self).

For a variety of reasons, I have been fearful that the six Justices who continued to champion Sixth Amendment principles in the Cunningham decision dealing with California's sentencing system (who are the five Justices in the Apprendi/Blakely majorities plus Chief Justice Roberts) are not eager to keep the modern Sixth Amendment sentencing revolution marching forward.  But the transcript of the Ice argument suggested to me that Justice Breyer, who has always opposed the Apprendi/Blakely line of cases, may be the only Justice deeply and seriously concerned about the possible consequences of continued commitment to the principles of this line of cases. 

I had expected that Justices Alito and Kennedy, who were part of the dissenting block in Cunningham, would be vocal in articulating concerns about the arguments put forward by the defendant in Ice.  But Justice Alito was surprisingly quiet during argument — I do not think he asked a single question — and Justice Kennedy did not reveal any deep continuing hostility to Apprendi principles.  I am now starting to wonder if every member of the current Court, save Justice Breyer, is ready to have their ticket stamped to Apprendi-land.  If so, and especially if Ice ruling ends up reflecting this new reality in bold terms, it could end up being a sleeper case this Term.

The little Ice case that could (but probably won't)...

be a major Sixth Amendment ruling.  As detailed here at SCOTUSblog, Tuesday afternoon the Supreme Court will hear argument in Oregon v. Ice, which explores whether the Apprendi/Blakely rule limiting judicial fact-finding at sentencing extends to determinations required under state law for the imposition of consecutive sentences.  I did a preview of this case for the ABA, which can be downloaded below.  Here is a snippet of my analysis from that preview:

Continued uncertainty about what the current Justices now think about the Sixth Amendment rule championed in Apprendi and Blakely increases the uncertainty over whether the Court’s decision in Ice will be bold and significant.  If a group of five or more Justices remains eager to limit certain judicial fact-finding at sentencing, the Court could produce a broad and consequential decision that not only favors the defendant, but also suggests that lower courts should be applying the Sixth Amendment in an array of new sentencing settings.  Conversely, if a group of five or more Justices is now eager to remove remaining constitutional uncertainty about what Blakely means for various forms of judicial fact-finding at sentencing, the Court could produce a broad and consequential decision that not only favors the state but also suggests that lower courts should not be too concerned about Sixth Amendment rights in various sentencing settings.

Tellingly, the Supreme Court has not taken up many post-Blakely issues in recent years, even though lower courts have frequently turned back arguments by defendants and defense counsels to apply and expand Blakely’s reach in a variety of new sentencing settings.  This reality perhaps suggests that the Court may be more inclined to limit than to expand the reach of Blakely in this case....

Because Chief Justice Roberts has publicly suggested he favors narrow constitutional rulings that produce more consensus than dissension within the Court, one might expect a relatively narrow ruling in Ice garnering the votes of most or all Justices.  The specific consecutive/concurrent sentencing issue in Ice could be resolved on relatively narrow grounds without requiring the Court to significantly expand or significantly limit the reach of the Sixth Amendment.  But, then again, one hallmark of the Apprendi and Blakely line of cases has been unpredictability.  Ice could be a sleeper case if a group of Justices prove eager to use the opinion in this case as an opportunity to champion again the importance of the jury in modern criminal justice settings.

Download aba_preview_of_ice.pdf

More on the cool Ice grant and consecutive sentencing Blakely issue

In the weeks and months ahead, I will surely blog a lot about the many interesting aspects of the consecutive sentencing Blakely issue that SCOTUS has now taken up in the new Ice case from Oregon (basics here).  For now, i will be content to link to this post at SCOTUSblog which has all the Ice cert papers and also to some of my prior posts on this issue.  (I must note that, when posting here about the Oregon Supreme Court decision last October, I commented that "the case might be viewed as quite cert worthy if Oregon decides to appeal Ice to the US Supreme Court."

A few prior posts on Apprendi/Blakely and consecutive sentencing (with post date):

• Oregon Supreme Court applies Apprendi to consecutive sentences (Oct 2007)
• Will SCOTUS grant cert on Blakely consecutive sentencing issue? (May 2007)
• Washington Supreme Court addresses consecutive sentencing and Blakely (Nov 2006)
• Great Alaska opinion on Blakely and consecutive sentencing (Dec 2005)
• Is SCOTUS interested in the consecutive sentencing Blakely issue? (Aug 2005)
• Consecutive questions about consecutive sentencing (Aug 2004)

SCOTUS taking up Apprendi/Blakely consecutive sentencing issue

I am pleased to report that this morning the Supreme Court has announced that it is taking up another important Apprendi/Blakely issue.  From today's SCOTUS order list (which also includes a few Gall and Kimbrough remands), here is the basic story:

07-901 OREGON V. ICE, THOMAS E.

The motion of respondent for leave to proceed in forma pauperis is granted. The petition for a writ of certiorari is granted limited to the following question: Whether the Sixth Amendment, as construed in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004), requires that facts (other than prior convictions) necessary to imposing consecutive sentences be found by the jury or admitted by the defendant.

Sing it with me, Blakely fans: Ice, Ice Baby.  Here's a bit of fractured lyrics sampling from the original to celebrate the SCOTUS litigation occasion:

Yo, Justices, Let's kick it!

Ice Ice Baby, Ice Ice Baby

All right stop, Collaborate and listen
Ice is back with a new Blakely invention
Sentencing grabs a hold of me tightly
Flow like a Justice daily and nightly
Will it ever stop? Yo I don't know...

If there is a problem, Yo, we'll solve it
Check out the issue while Berman revolves it

Ice Ice Baby Vanilla, Ice Ice Baby Apprendi
Ice Ice Baby Vanilla, Ice Ice Baby Apprendi