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May 24, 2010

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.

May 24, 2010 at 10:39 AM | Permalink


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After reading the oral argument transcript in this case, I said the following: "I'm predicting they affirm on statutory interpretation grounds. And, in my mind, that's disappointing because I think there are 5 votes on this Court to overturn Harris, which needs to be done."

I stand by my comment concerning "this Court." If I were a Senator, however, one of my first questions to Ms. Kegan would be on her view of McMillian and Harris.

In addition to Stevens, Thomas's concurrence also states that Harris should be overturned. And I don't think it's that significant that only Stevens and Thomas decided to write separately to express this opinion.

Stevens uses the phrase "does not imply," which is quite definitive. I'm guessing Stevens knows for sure that a majority of the current Court share his and Thomas's view on Harris/McMillian. Otherwise, he could have said "should not imply" or "Despite the unanimity of our decision today, McMillan is still subject to a direct challenge" or some other language that is more vague.

Posted by: DEJ | May 24, 2010 2:32:58 PM

McMillian and Harris should be overturned. I do not think it a significant burden to have to prove beyond a reasonable doubt to the satisfaction of a jury any fact that subjects a defendant to a higher mandatory minimum sentence under 924(c) or any other statute. If we as prosecutors cannot do that, then i am not sure that it is just to subject a defendant to a higher mandatory minimum based soley on a preponderance based standard that can be met with evidence of only doubtful reliability which need not be subjected to even minimal confrontation. And so i find myself agreeing with Justice Thomas....and most probably Scalia as well. Reminds me of my law school days, when i would read a decision by Justice Warren, or Black, and my heart would be in agreement, but then i would read a Harlan dissent, and I would be convinced my heart was wrong. Strange times.

Posted by: Grotius | May 24, 2010 7:53:30 PM

Actually, probably not Justice Scalia on this front Grotius, as he joined the Harris plurality and has never really explained his apparent view that facts raising mandatory minimums should be exempt from the Apprendi/Blakely rule.

Posted by: Doug B. | May 24, 2010 9:11:45 PM

"and most probably Scalia as well"

I agree with Prof. Berman. Unfortunately, I don't think Scalia believes Harris/McMillian should be overturned. He was in the Harris plurality, and has shown no sign of regretting that vote. Here's how I get to at least 5:

The four dissenters in Harris were Thomas, Stevens, Souter, and Ginsburg. Thomas and Stevens, as shown from their O'Brien opinions, believe Harris/McMillian should be overturned. Presumably Ginsburg still agrees with the Harris dissent. That's three votes. I also believe that Sotomayor (replacing Souter's dissenting vote) would also tend to agree. If so, that's four votes.

Breyer, although a part of the Harris majority, concurred in the case because he didn't "accept" Apprendi. However, as he said at the O'Brien oral argument, if he must faithfully apply Apprendi, then he agrees Harris was wrongly decided. See Stevens' O'Brien concurrence at n.6. That's five votes. And, it's possible that Roberts also sees the inconsistency between modern Sixth Amendment jurisprudence and Harris. So, there may even be six.

I don't see Kennedy (who wrote Harris) or Scalia changing their Harris vote. And I would never count on Alito for a pro-defendant vote. In fact, I believe the only reason he concurred in O'Brien was because if he dissented, he would be forced to address the many difficult constitutional/reasonableness issues that the Defendants raised in a solo dissent.

So, the way I see it, there are AT LEAST 4, more likely 5, and as many as 6 current Justices who believe Harris/McMillian was wrongly decided. The cases need to be overturned.

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