NYCDL amicus brief in Alleyne with an offense/offender kicker

As long time readers know, in first trying to make sense of Blakely, I was drawn to distinguishing between offense conduct and offender characteristics in the application of Apprendi's "bright-line rule."  I first developed this idea in my Conceptualizing Blakely article, advanced it in a Stanford Law Review article, and unpacked it further (with Stephanos Bibas) in Making Sentencing Sensible.  As explained in Conceptualizing Blakely, I believe an offense/offender distinction helps give conceptual content to the prior conviction exception, better links the Apprendi rule to the express text of the Constitution, and resonates with the distinctive institutional competencies of juries and judges.

Consequently, when the Supreme Court decided it would take another trip to Apprendi-land by granting cert in Alleyne to consider the continued validity of the Harris mandatory minimum limit on the the Apprendi rule (basics here and here), I was interested in pitching the Justices yet again on the idea of incorporating an offense/offender distinction into some part of this jurisprudence.  Wonderfully, a terrific group of New York lawyers reached out to me about helping the New York Council of Defense Lawyers on an Alleyne amicus brief, and they were willing to add an offense/offender "kicker" to NYCDL's arguments for overruling Harris.  The NYCDL brief in which I lended a hand was filed yesterday and can be downloaded below.  Here are two key paragraphs from the summary of argument:

As this Court has applied Apprendi’s holding over the last decade, several Justices have expressed con-cerns about the rule’s potential impact on trials and sentencing.  As NYCDL’s experience in New York federal and state courts shows, any such effects will be minimal.  New York’s federal courts, for example, have operated for seven years under a paradigm for drug offenses that substantially parallels the structure all courts would face should this Court overturn Harris.  Practitioners there have been able to apply Apprendi’s rule to drug offenses with relative ease: from the indictment to the jury instructions or to the plea allocution, New York prosecutors and defense lawyers are able to address any facts that expose defendants not just to increased maximums, but also to increased minimums.  Similarly, criminal defense attorneys in New York state courts regularly confront situations where a jury is required to find facts that trigger a mandatory minimum sentence, without apparent difficulty or inefficiency.  These experiences buttress Petitioner’s argument that “there are no practical impediments to overruling Harris.”  Pet. Br. 42.

Moreover, any of the enduring practical concerns identified by certain Justices can be addressed by adopting an approach to overruling Harris that distinguishes between facts that are specific to the offense and facts that are specific to the offender.  The Constitution’s text requires that all facts relating to the alleged “crimes” at issue must be stated in the indictment and presented to the jury, which the Due Process clause requires to be proven beyond a reasonable doubt.  To avoid a requirement that aggravating facts concerning an offender’s past be presented to the jury if such offender-specific characteristics implicate a mandatory minimum, the Court should draw a line for Constitutional purposes that allows judicial determinations of offender-specific facts that are relevant to sentencing, so long as such facts do not alter the range of applicable sentences.  Such a rule comports with the particular competencies of the jury and judge: The jury’s traditional role is to answer questions about the criminal conduct alleged in an indictment, while the judge has historically been expected to assess broader offender-based considerations such as an offender’s criminal history, amenability to rehabilitation, and correctional treatment.  Where, as here, a sentencing judge acts as “the reverser of juries” in finding offense-related facts only by a preponderance of the evidence, the sentence is unconstitutional.  The decision below should be reversed.

Download NYCDL Amicus Brief in Alleyne