« In 5-4 opinion, defendants prevail in crack pipeline cases via the FSA | Main | Has Justice Scalia won the legislative history war despite losing Dorsey battle? »

June 21, 2012

A (too) quick first take on Southern Union and Hill/Dorsey

I am so very pleased and grateful the Supreme Court finally handed down today opinions in two of the three big sentencing cases pending this term: we got Southern Union concerning Apprendi's applicability to fines (basic here), and Hill and Dorsey concerning application of the new crack FSA sentencing provisions to pipeline cases (basics here).  We still await Jackson and Miller, the juve LWOP Eighth Amendment cases (which, I would guess, will be handed down on Monday.)  Even before reading them very closely, I wanted to share a few quick reactions to today's notable sentencing rulings:

1.  In both cases, federal defendants prevailed and were able to get a SCOTUS reversal of pro-prosecution rulings issued by federal circuit courts.  This reality reinforces, yet again, my belief that the US Supreme Court is a much more pro-defendant appellate tribunal on sentencing issues than many (most? all?) other appellate courts in the nation.  (This means, inter alia, sentencing defendants unhappy with an appellate outcome in a lower court ought always seriously consider appealing to SCOTUS.)

2.  In both cases, oral argument proved to be a pretty good predictor of where the Justices were leaning, and those Justices with a history of engagement with sentencing issues were tasked with writing opinions for their colleagues.  We got two opinions from Justice Breyer (a majority and a lead dissent), and an opinion from Justice Sotomayor (a majority) and Justice Scalia (a dissent).  I was a bit surprised that Justice Alito did not write in either of these cases, though his vote in both was pro-prosecution and I suspect he has a (pro-prosecution) opinion coming in the juve LWOP cases.

3.  Because of the huge debates and controversy over crack sentencing rules, and because hundreds of crack cases are sentenced in federal courts every month, the Hill and Dorsey cases will likely get much more attention and have more short-term impact in the days and months ahead.  But Southern Union is the "bigger" decision because it shows (a) that there are now six Justices (including three of the four newer ones) who are happy to keep extending the Apprendi/Blakely rule and (b) that the Ice ruling cutting back on the Sixth Amendment's reach is likely to end up as an outlier in this jurisprudence.

4.  In light of the 6-3 outcome Southern Union, I see strong reasons for the defense bar to keep pushing hard to get the Justices to take up a case that enables reconsideration of the Almendarez-Torres exception (covering prior convictions) and the Harris exceptions (convering mandatory minimums) to the Apprendi rule.  Because Chief Justice Roberts is now a long-term citizen in Apprendi-land and because he has shown in other settings a willingness to engineer the overturning of precedents he finds misguided, the time may now be really ripe to find strong case(s) through which to seek reversal of these (misguided?) Apprendi exceptions.

June 21, 2012 at 10:58 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference A (too) quick first take on Southern Union and Hill/Dorsey:


Great posts today, Professor. Much appreciated.

I don't understand, though, why the defense bar would ever push to get rid of Almendarez-Torres. No defendant ever wants the government to "prove" the defendant's prior convictions to the jury. This is always powerful and damning evidence. We spend way too much time trying to keep this information from the jury for it now come up.

Posted by: Mark Pickrell | Jun 21, 2012 1:27:56 PM

Doug, do you think today's ruling in Southern Union in any way implicates (in federal court) the right to a Grand Jury indictment on these "elements"?

Posted by: Ryan S | Jun 21, 2012 2:34:18 PM

Alito's vote in both being pro-prosecution = dog bites man and the sun rose in the east.

Posted by: anon | Jun 21, 2012 4:13:33 PM

The Ice v. Apprendi distinction reflects the fact that a case like Southern Union presents a quite atypical fact pattern. A conviction for a criminal offense typically authorizes any fine and an award of restitution without further findings of the jury - the mere conviction without any other facts usually sets the maximum sentence. And, when fines are a function of jury determinations, this is usually a result of the number of counts for which a defendant is convicted.

The number of crimes for which the maximum fine is a product of a determination other than a mere conviction is modest. There are a few admininistrative and tax type offenses where the duration of the conduct is pertinent (such as the one at issue here), and there are many property offenses for which the maximum fine depends upon a determination regarding the value of the stolen property, but those cases are the decided exception to the rule. In practice, Southern Union will swiftly cause special verdicts in the minority of cases where maximum fines depend on conduct other than mere conviction to become the norm, but there is no reason to think that this practice standard won't promptly be integrated into how these cases are prosecuted with only slight effect. The biggest impact may be on the imposition of fines in white collar crime cases articulated as some form of theft.

Also, recall that just because Apprendi governs a case doesn't mean that they jury has a say in how sentencing guidelines for fines are applied. It governs only maximum sentences.

Posted by: ohwilleke | Jun 21, 2012 8:37:57 PM

Doug, I would definitely not advocate for overruling AT, which would have several problems, one pragmatic and the other a basic conceptual flaw.

What I have seen as a relatively recent phenomenon is the state joining for trial in serious cases, like murder, a charge of Possession of Firearm by Felon, for the sole purpose of prejudicing the jury by showing that the def has already been convicted. There can be no other purpose.

If prior convictions could be elements of a crime, then, conceptually, there is a double jeopardy violation.


Posted by: bruce cunningham | Jun 21, 2012 8:46:37 PM

The question I have about overruling the prior conviction exception, isn't it rooted in the following:
(1) That the prior conviction is a matter taken under judicial notice
(2) Whether the prior conviction meets whatever statutory definition is in play is a matter of law not fact

If those two propositions are correct then I don't see the exception being in any jeopardy. Even with things like the Armed Career Criminal Act's residual clause, where it could easily be treated as a fact inquiry but instead the categorical approach has turned it into one of law.

So my questions are there: Are either of my propositions (either alone or taken together) somehow incorrect? Or even if they are correct do you see some other reason for the exception to be in trouble?

Posted by: Soronel Haetir | Jun 21, 2012 10:32:59 PM

Soronel, your propositions are exactly correct, which is why recidivism cannot, in my opinion, be used as an element of a crime. You have finally come around to my position after 3 or 4 years!!! In other words, Possession of Firearm by a Convicted Felon is not a crime which can trigger a further sentence enhancement. It is a violation of a condition associated with the conviction of the original crime, for which the def may be punished but the Sixth Amendment jury trial right does not apply. Yes, yes, yes, "The prior conviction is a matter taken under judicial notice." Have you ever tried arguing to a jury whether or not to convict your client of a recidivist offense?k There is nothing to argue except jury nullification, which I refuse to do.

Welcome, you and I are two of only a handful of people who see any problem with using a prior conviction as an essential component of a crime rather than as a reason to enhance sentence. You've made my day.

Posted by: bruce cunningham | Jun 22, 2012 9:03:00 AM


Given that I am not a lawyer I have never argued to a jury about anything. I OI am pretty sure I have dispelled any such claim on my part at least once and maybe more than that.

My only close personal brush with the courts was being called as a witness in the rather messy divorce proceedings of a peripheral family friend when I was 14 or so. And even there I was disappointed because they didn't ask me to swear on a bible so I couldn't make a scene about refusing.

Posted by: Soronel Haetir | Jun 22, 2012 11:02:00 AM

Roberts hasn't shown a willingness to overrule pro-prosecutor precedents.

Posted by: Jacob Berlove | Jun 22, 2012 11:03:11 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB