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September 7, 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.

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September 7, 2011 at 10:36 AM | Permalink


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Does anyone know where one could read the cert-stage pleadings in this case? The SCOTUS docket shows numerous amicus briefing, and I would be interesting to reading what as been argued by both the parties and amicus. I have looked on SCOTUSblog, but I don't see any information on the Kreiger case.

Posted by: DEJ | Sep 7, 2011 1:14:37 PM

Judges have themselves to blame for "mandatory minimums." It's hard not to feel a little sorry for Ms. Krieger, who was young and dumb and certainly didn't intend to kill anyone. Does she deserve 20 years? Well, there's definitely an argument that she does, but I'll leave that one alone because I honestly don't have a formed opinion on it. And if we could trust judges collectively to limit their sentencing discretion to truly hard cases like this one, then we wouldn't need mandatory minimums. But the public is, and has been, sick and tired of "revolving door justice" brought on by lenient judges with predictably tragic results. I get that some cases are hard, and sometimes judges take chances, but there have been far far too many easy cases for a long incarceration where a judge was nice. Well, the idea that there wouldn't be a political response to such outrages is naive, and sometimes people like Ms. Krieger pay a heavy price. But giving judges a lot of leeway makes lots of victims out of people a lot less sympathetic than Ms. Krieger, who, after all, did contribute to the death of another human being because of her drug dealing.

As an aside, I don't really care if people disagree with me, but it would be nice if those who don't, for once, understand that there are trade-offs in life and that a regime of judicial discretion has made victims of a lot of people.

Posted by: federalist | Sep 7, 2011 2:22:24 PM

true federalist but i and a lot of other regular american's would rather the state reseve their option to HAMMER someone for people that have been in the what did you call it "revoling door" of justice! you know the idiot on thier 3 or 4th robbery, or dui or drug deal NOT first time offenders! kind of makes the statment of "revolving door" a LIE! when applied to them!

not some poor idiot who was confronted with a friend in pain and gave them something that worked for THEM to use....especialy in a case like this where there was no monetary insentive!

Posted by: rodsmith | Sep 7, 2011 3:48:09 PM

rodsmith --

Let me respectfully suggest that if you're confronting a friend in pain, don't play physician. Drive him to the emergency room where there are REAL physicians who can adminsiter the correct medicine in the proper doseage and from a legal and reliable supplier.

Posted by: Bill Otis | Sep 7, 2011 11:10:17 PM

that is usualy what i do! but we have a very very very large part of our society who has NEVER had a health plan or insurance and a big part who has now lost it!

running up big medial bills for emergency room visits are not what they want!

as for seeing a physian in an emergency room. been a while since i did that. but the last time i spent 5 hrs there just me and 3 nurses....before a doctor bothered to show up!

Posted by: rodsmith | Sep 8, 2011 1:27:01 AM

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