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December 31, 2012

Will 2013 finally bring the demise of Harris via the Alleyne case?

I have been too busy with family et al. this holiday season to find the time to complete either a 2012 sentencing year-in-review post or a set of 2013 sentencing law and policy predictions.  But, on this last day of 2012, I can helpfully preview what is surely among the top sentencing stories to watch in the next year (especially for Apprendi fans): the Supreme Court's consideration of the Alleyne case, in which the Justices are to consider whether to reverse the mandatory minimum exception to the Apprendi Sixth Amendment doctrine.

This preview comes principally via a new BNA article by David Debold and Matthew Benjamin, which I have been permitted to post here.  The piece is titled "Is Harris a Mandatory Minimums Ruling Whose Time Has Run Out?", and it starts this way:

On Jan. 14, the U.S. Supreme Court will hear argument in Alleyne v. United States, the latest case to explore the contours of the Sixth Amendment’s jury-trial guarantee at the sentencing phase. Since 2000, when the Supreme Court issued its landmark opinion in Apprendi v. New Jersey, the rule has been that, "other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt."

On numerous occasions over the past dozen years, the court has applied this rule to invalidate sentencing schemes that allowed judges to find facts that would expose a defendant to a more severe sentencing outcome.  Just last term, in Southern Union Co. v. United States, the court held for the first time that Apprendi applies to the imposition of criminal fines....

Alleyne raises a variation on the Apprendi theme. Unlike cases such as Southern Union, where the court applied the Sixth Amendment to the finding of facts capable of raising the sentencing ceiling, Alleyne will address whether a jury must find facts that raise the floor—otherwise known as mandatory minimums.  This is familiar territory for the Supreme Court. Just a couple of years after Apprendi, the court held in Harris v. United States that the Sixth Amendment does not require that a jury determine the facts that raise the bottom of a statutory sentencing range.  Thus, under Harris, a judge may constitutionally find facts that trigger a mandatory minimum sentence within the existing statutory range, and the judge may find such facts by a preponderance of the evidence, with no need for the government to allege them in an indictment.

The vitality of the holding in Harris has always been tenuous, at best.  The crucial fifth vote came from Justice Stephen G. Breyer, who candidly admitted in his concurrence that he could not "easily distinguish Apprendi v. New Jersey from this case in terms of logic." Instead, he voted with the plurality only because he could "not yet accept [Apprendi’s] rule."  Many petitioners — recognizing that no more than four justices could agree on a principled basis for the Harris holding — have hoped to learn how Breyer would rule if ever forced to admit that Apprendi is here to stay.  But repeated requests for the court to revisit Harris have consistently failed — until the recent grant of certiorari in Alleyne. Alleyne thus presents the court with a long-anticipated opportunity to overrule Harris.

Download Debold-Benjamin BNA piece on Alleyne

Recent prior posts on Alleyne case:

December 31, 2012 at 04:03 PM | Permalink


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Doug, I'm looking forward to Alleyne. For years I have been telling Apprendi naysayers that they are missing the boat when they say that Apprendi/Blakely is concerned with the sentence imposed. Rather, I believe the proper reading of "penalty" is to look at the potential sentence to which the defendant is exposed, regardless of what sentence is received.

I believe it is self-evident that anyone would consider a sentence of 5 to 10 to be more severe than a sentence with a range of probation to 10. Hopefully, Justice Breyer will join the happy band traveling to Apprendi-land.

happy new year, keep the helpful blogging coming.


Posted by: bruce cunningham | Dec 31, 2012 6:01:58 PM

The two situations are easily distinguished. Apprendi protects the jury trial right by, in effect, defining what a crime is. A mandatory minimum simply makes some crimes ineligible for lenience.

Breyer's been slipping (and he never was all that anyway)--read his dissent in SEIU v. Knox (worse than Stevens' dissent in Citizens United)--and Breyer isn't exactly intellectually honest. The mandatory minimum should remain, but it will fall.

Posted by: federalist | Jan 1, 2013 9:16:47 PM

federalist, I completely agree with you that Apprendi defines what a crime is and protects the Sixth amendment right of a def to require that only a jury can convict someone of a crime.

I disagree with your next sentence. I think we are not talking about mandatory minimums
falling. We are talking about whether the fact which exposes a defendant to the mandatory minimum sentence must be found by a jury or, as in Alleyne, by a judge.


Posted by: bruce cunningham | Jan 1, 2013 11:56:11 PM

bruce, I meant that the mandatory minimum would fail as is . . . .

Posted by: federalist | Jan 2, 2013 10:11:30 PM

I've been waiting for this one, too. I really don't understand how the Apprendi line doesn't compel Harris being over-ruled at this point, given that the mandatory minimum is triggered by a judicial finding.

Posted by: Mark Osler | Jan 3, 2013 9:13:18 AM

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