« Intriguing political spat over federal plans to purchase of Illinois prison | Main | New alliance of Florida business and tax groups talking up incarceration alternatives »

October 3, 2012

Is SCOTUS gearing up to reconsider Harris and the Sixth Amendment's application to mandatory minimums?

The question in the title of this post is prompted by an exciting paragraph deep within John Elwood's exciting new SCOTUSblog post excitingly titled "Relist (and Hold) Watch." Here it is:

Unsurprisingly, the first real order list after the Long Conference left us with a boatload of relists.  Eleven, in fact.  Apprendi purists, ready the confetti:  Two of the relists, Alleyne v. United States, 11-9335, and Dotson v. United States, 11-9873 (which we first discussed in May), ask the Court to overrule Harris v. United States (2002).  You might recall that, in Harris, a plurality headed by Justice Kennedy plus Justice Breyer’s concurrence in the judgment held that facts that increased the mandatory minimum sentence need not be decided by the jury.  Two members of the Harris majority (Chief Justice Rehnquist and Justice O’Connor) are gone, as are two of the dissenters (Justices Stevens and Souter).  It would be a pretty big deal if the New ‘n’ Improved Court revisited Harris.  But I will try to curb my enthusiasm in case the Court is pulling its Lucy-and-the-football trick again, like it did both during OT2010 and last Term when it relisted cases seeking to revisit another sentencing rule in tension with Apprendi, Almendarez-Torres v. United States (holding that the fact of a prior conviction could be found by a judge rather than submitted to a jury) – only to deny those petitions without comment.

I have so much to say on this topic, but I need to first get my confetti ready and also put on my black-striped Charlie Brown yellow shirt.

October 3, 2012 at 02:47 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Is SCOTUS gearing up to reconsider Harris and the Sixth Amendment's application to mandatory minimums?:


Statute 1: imprisonment term of 0 to 10 years
Statute 2: imprisonment term of 5 to 10 years

To conclude that those two statutes are not different"offenses" within the meaning of the Sixth Amendment is an odd proposition indeed. Harris needs to be overturned as a matter of legal consistency and, equally important, common sense.

No offense to the fans of Peanuts characters, but I'm hoping for confetti.

Posted by: DEJ | Oct 3, 2012 4:37:48 PM

for fellow Apprendi fans, I have a case working its way to SCOTUS on whether there is such a crime in NC as Aggravated Common Law Robbery, if the finding of a fact increases the potential punishment for the core offense of Common Law Robbery.

The State's response to my cert petition to the NC Supreme Court came today and contains this language, "There is no such offense as 'aggravated common law robbery in North Carolina." The Apprendi battle lines are pretty starkly drawn and I hope to get to Washington. I believe that the intersection between Apprendi/Blakely and our Structured Sentencing law has resulted in the creation of a large number of new crimes, as Justice Scalia said in Blakely "crimes the state actually seeks to punish."


Posted by: bruce cunningham | Oct 3, 2012 5:54:18 PM

Dang, I thought you meant Harris v. Alabama. That is also one that could use reconsideration.

Posted by: anon | Oct 5, 2012 4:07:59 PM

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