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January 14, 2009

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.

January 14, 2009 at 10:17 AM | Permalink


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Very strange.

Reasonable people can disagree about whether Apprendi and Blakely are correct as a matter of constitutional law.

I don't think reasonable people can disagree about their application to this case. As usual, Scalia writes with remarkable clarity in this area. If the state requires that specific facts be found before a judge can run a defendant's sentences consecutively, then that fact must be admitted by the defendant or found beyond a reasonable doubt by the jury. (Dissent at 3-4).

The Apprendi bloc has failed to hold, apparently.

As in Booker, Ginsburg seems to be the go-to justice for an opinion that makes a hash out of the Apprendi line of cases without acknowledging what it's doing. Based on the death penalty cases, I'm surprised that the Justices' pro-defendant sympathies didn't pull them back from the precipice.

Posted by: | Jan 14, 2009 10:49:14 AM

"supposedly liberal"? What, just because in one case, they sided with the government against a criminal?

Posted by: federalist | Jan 14, 2009 10:54:31 AM

I did not expect that result. After reading through it, I cannot help but wonder the extent to which the fact that this was a sex crime influenced Ginsburg vote. She has always been the weak link in this area of law.

Overall, I agree with Scalia's dissent. As a logical matter, the majority's conclusion is just odd. And the fact that they framed it as a state's rights issue is even odder, because of course that was O'Conner's dissent in Apprendi.

Posted by: Daniel | Jan 14, 2009 10:57:51 AM

I join in being puzzled about using state's rights / federalism principles as a primary motivator for reaching the majority's conclusion. I would not have a problem if the majority had simply observed that the conclusion also happened to further federalism principles to boot. But I think it is dangerous to allow federalism/states rights concerns to become a main factor in Sixth Amendment analysis - that ship sailed with incorporation.

Posted by: A. Nony. Mous. | Jan 14, 2009 11:36:17 AM

I see it more as a legislative versus judicial than state versus federal issue. The result would have been the same if it were United States v. Ice. The legislative branch made the policy decision. It is clearly not a subversion of the jury's historical role by redefining elements as sentencing factors. Hence, the decision is legitimately one to be made through the democratic process.

"In light of this history, legislative reforms regarding the imposition of multiple sentences do not implicate the core concerns that prompted our decision in Apprendi."

Posted by: Kent Scheidegger | Jan 14, 2009 12:59:15 PM

I am a strong supporter of Apprendi, but I think that the majority is right here. My bottom line is that there is a world of difference between consecutive/concurrent sentencing and the max sentence for any one crime. First of all, people look at the two things differently, and that matters. Second, the decision about when one gets to start getting credit for serving his time seems qualitatively different. Obviously, "episode of criminal conduct" statutes blur the distinction a bit. But only from a formulaic standpoint. Scalia's argument, in my view suffers from the same infirmity as an argument that nothing can really touch another thing (I won't get into the physics of that). It may be true enough that you cannot touch another person, but that's not how we think of things in the real world. Same with Scalia's formalism here--there is a difference between max sentence for a crime and the consecutive/concurrent decision, at least in how society looks at things, and Scalia's formalism ignores that real world perception that there is a sharp boundary between the two.

Posted by: federalist | Jan 14, 2009 1:03:46 PM


What is the conceptual difference between the max sentence for a crime and the consecutive/concurrent decision? Both involve a qualitative inquiry into whether this specific defendant has acted in a way that warrants additional time. Has the defendant acted in a way that warrants him receiving the statutory maximum versus some more lenient sentence leass than the max? Has this defendant acted in a way that warrants him serving more time via consecutive sentences versus serving less time via concurrent sentences? Imposition of the max and imposition of consecutive sentences imply a determination (made by someone, on some basis) that the defendant deserves more time. So, I fail to see the relevant conceptual difference.

Posted by: A. Nony. Mous. | Jan 14, 2009 1:14:36 PM

A.nony.mous.--the difference really is when one gets to start one's sentence. That's a pretty big "conceptual difference". But that's not really my point--rather, my point is that people looking at this do recognize a difference, a difference that may not bear up under exacting logic (just like the concept of "touch" doesn't bear up under an electron microscope), but that doesn't mean we cannot make use of that real-world distinction without running afoul of the Constitution.

Posted by: federalist | Jan 14, 2009 1:27:28 PM

As a person who served as a juror in an aggraveted sexaul assault of a child case; here is my 2 cents. I'd have been pissed if the judge had done such a thing in the case I heard. We, the jury, found that on a particular night, the defendent entered the childs room and penetrated her vagina. There was certainly testimony of previous events, and to my point, during testimony, the victim claimed that a firearm was brandished the very first time (years prior to the night in question) to engender compliance in the sexual activity. We as a jury were not asked about that particular incident, but most of us thought it that particular comment was embellishment. Indeed, in post trial interviews with prosecution, that tidbit of information was the first they heard of the claim, and this was the second trial (the first trial ended in a hung jury).

I haven't read the full opinions, but from the excerpts, I agree with the dissenting opinion. If the jury was polled, or given original direction to determine, if the other incidents occurred (beyond a reasonable doubt), then I'd agree the majority. Many of us, in the case I served, thought there were certainly more than one incident, but how many incidents was never a question to determine.

Posted by: Leland | Jan 14, 2009 4:01:22 PM

"If the jury was polled, or given original direction to determine, if the other incidents occurred (beyond a reasonable doubt), then I'd agree the majority."

Well, Leland, then you agree with the majority. The jury returned verdicts of guilty on all of the crimes at issue.

Posted by: Kent Scheidegger | Jan 14, 2009 4:35:39 PM


Your first post above is a reasonable position, but how is it any different from Blakely or Booker? Both those cases involved legislative judgments about what was an element versus a factor as well.

Posted by: jwilcox2009 | Jan 14, 2009 5:23:37 PM

In this case, it is even more clear that the facts to be found are not elements of an offense or the functional equivalent of elements.

In guidelines systems, the facts to be found may include, e.g., the value of property stolen, the element that has long distinguished grand theft from petty. In Ice, the findings have to do with the relationship between two crimes (each of which has been found by the jury). If a person violates two statutes while causing a single harm to a single victim, then sentencing consecutively would be excessive. If he rapes two victims on one occasion or the same victim on two entirely separate occasions, then the judge finds that he committed two genuinely separate crimes. In Oregon, this finding authorizes (but does not require) consecutive sentences.

This finding is different in kind from a finding that he has committed a single crime more serious than the median for that category of crime. That was the situation in Blakely, where the judge found that the crime was a particularly nasty kidnapping. That finding bears a stronger resemblance to conviction of a higher degree of offense.

Posted by: Kent Scheidegger | Jan 14, 2009 7:53:48 PM

So how things turn out after all? Because you haven't post anything about this case anymore.

Posted by: claire | Nov 8, 2010 3:22:41 AM

there is no update on scotus either...

Posted by: Anne | Nov 19, 2010 9:40:34 AM

I think it is liberal to side with a criminal. They think they can rehabilitate everyone. Some people deserve to never see the light of day.

Posted by: Columbus Injury Lawyer | Dec 22, 2010 11:48:21 PM

I found this, after a research on the web. My teacher asked me to find more information about this. Would be kind to provide some updates, if there are any?

Thank you in advance.

Posted by: Mia | Mar 23, 2011 10:44:55 AM

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