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January 14, 2013

An early report on Alleyne argument over Apprendi's reach

As previewed here, today was a big day for the Sixth Amendment before the Supreme Court.  Hard-core sentencing fans have to be interested in the Alleyne case concerning the right to a jury determination of facts that trigger the application of mandatory minimum sentencing terms.  Lyle Denniston has this SCOTUSblog recap of today's argument in Alleyne, which gets started this way:

After taking an obligatory look at whether the Supreme Court should feel bound by its past precedents, the Justices on Monday moved into an issue clearly of more interest to them: what do they need to do to protect the role of juries in laying the groundwork for criminal sentences? This inquiry turned into a combative discussion of just what the Court meant in 2000 in giving jurors a much-enhanced role when their verdicts trigger the fixing of sentences — the historic decision in Apprendi v. New Jersey.

The Justices who were opposed to expanding Apprendi argued that it dealt singularly with curbing judges who decide to impose a sentence beyond the top limit set by the legislature, while the Justices who seemed ready to push Apprendi a bit further contended that it should mean that increasing a convicted individual’s potential sentence should depend upon what the jury found, not the judge.  There did not seem to be a middle ground.  The two lawyers arguing the case were just as far apart.

As long-time readers should know, I keep trying to push a distinction between offense facts and offender facts as kind of a middle-ground position on Apprendi's reach, and that idea finds expression in an amicus brief I helped put together in Alleyne (discussed here).  Sadly, based on this early account of today's argument in Alleyne, it would appear that yet another group of inside-the-beltway folks are more interested in sticking to their polarizing positions than in coming up with middle-ground solutions to important problems.

I suspect I will have more to say about Alleyne after I get a chance to read the oral argument transcript, which is now available at this link.

Recent prior posts on Alleyne case:

January 14, 2013 at 03:49 PM | Permalink


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"Sadly, based on this early account of today's argument in Alleyne, it would appear that yet another group of inside-the-beltway folks are more interested in sticking to their polarizing positions than in coming up with middle-ground solutions to important problems."


The jury trial right stops where it stops. Voting to extend it in order to keep peace (or what have you) is fundamentally lawless.

Apprendi seems to me to be a very easy case (interesting how a landmark 5-4 decision has so little academic commentary against it). But its application to mandatory minimums seems a stretch. If a particular statute provides for a prison term of 2-5 years, then why can't the legislature dictate that under certain circumstances, a judge cannot be lenient? What has been taken away from the jury in such a case? It cannot be factfinding per se, because sentencing judges determine facts all the time. It cannot even be factfinding that influences a sentence because that, of course, happens all the time. The only way you can really get there is to find that the additional fact barring a lenient sentence is an element of a separate crime as a matter of constitutional law. But that's artificial, and I think everyone knows it.

So instead I think the only thing that's left to support overruling Harris is the collective fancy of Justices willing to cast their votes based on their notions of what a justice system ought to look like. There are five of those as the lawless Frye/Lafler decisions show. (I am still wondering how a right that is granted not for its own sake but to secure a fair trial is violated when the defendant actually gets a fair trial. Once again, it's interesting to see how little intellectual underpinning there is for that one--just a lot of piousness about some criminal not getting a good a deal as others may have.)

Posted by: federalist | Jan 14, 2013 10:06:25 PM

federalist: as I explained in a series of articles after Blakely, I believe it is not at all artificial to conclude that when a legislature says that a particular offense fact --- e.g., brandishing a gun in the Alleyne case --- which is to have a fixed and certain mandatory impact on the potential punishment to follow, then the legislature has defined an element of a distinct crime and those elements must get all the traditional Bill of Rights protections (including a jury trial right and proof BRD).

For me, the Apprendi line is not about a leniency/harshness distinction, but rather about the requirement that if/whenever a legislature creates fixed/mandatory offense fact requiring any fixed/mandatory sentencing outcomes, those offense facts need to constitutionally be treated as a elements of the crime that the legislature has defined in terms of those very offense facts. Giving judges discretion/authority to find other factors when picking sentences within broad discretionary sentencing ranges raises different issues because then judges need to and are required (as in the post-Booker world) to exercise sentencing judgment because the legislature has not mandated a certain sentence to connect to a certain fact.

Notably, though you call Apprendi an easy case, it seems Justices Alito, Breyer and Kennedy are still VERY resistant to it for all purposes. Meanwhile, Justices Thomas, Ginsburg and Breyer all resist the maximum/minimum distinction that you and Scalia find appealing. (I am curious whether you think that Alito is dense for resisting Apprendi and/or that Thomas is lawless for thinking Harris is misguided.) I'd like to see all these folks give the whole line of ruling more logic and consistency with my offense/offender distinction, but I fear that the extremes rather yell at each other than make all these cases make much more sense.

Posted by: Doug B. | Jan 15, 2013 8:45:21 AM

Doug, I appreciate your offender/offense-based-fact distinction and think it could work in some contexts (for example, the question of whether a judge can enhance a probationary sentence to prison based upon a defendant's unamenability to probation). But this isn't one of them. There are good arguments on both sides of the issue in Allyene ((a) the general verdict exposes the defendant to the sentence so no problem w/the jury-trial right vs. (b) the general verdict doesn't expost the defendant to the mandatory-minimum sentence so big problem w/the jury-trial right). But neither of those issues turns on the nature of the fact at issue, whether it's offense- or offender-based; instead, it's all about the effect of the factfinding.

To hold that offense-based facts which trigger mandatory minimums must be found by a jury while offender-based facts which trigger such minimums don't wouldn't make any sense. This is true because the result of the factfinding is the same and because there's nothing "traditional" about the judge's authority to impose a mandatory minimum sentence, in the same way a judge could traditionally send a guy to prison if the judge didn't think the guy could hack it on probation.

Posted by: Anon | Jan 15, 2013 9:41:47 AM

You will need to read my full article Conceptualizing Blakely (or follow-ups like Making Sentencing Sensible and Conceptualizing Booker), Anon, to get my full argument on the foundation and justification for an offense/offender approach to the 6th Amendment.

IN short form, the key conceptually is to think about mandatory minimums written by legislatures to be increased based on the "facts" of defendant's prior criminal history (e.g., 3-strikes laws). Besides the descriptive reality that SCOTUS has carved out another exception to Apprendi for this kind of "fact," you should think more broadly about the idea that a legislature is not really defining a unique/new crime when it say, e.g., double all statutory sentencing ranges (or minimums) for a particular drug crime if/when the defendant has a prior drug conviction or has previously served time in prison. A defendant's criminal past is certainly a relevant/important consideration at the sentencing of any later crime of conviction, but is it really a relevant/important guilt/innocence JURY consideration at the guilt phase when deciding initially if the defendant has in fact committed this alleged later crime?

Put another way for this specific case, whether Alleyne brandished a gun in this latest alleged crime seems like exactly the kind of disputed fact we expect juries to consider (and to have to find BRD) if/when a legislature decides to attach mandatory sentencing consequences to this offense fact --- and, of course, the disputed fact in this case was submitted for jury consideration and the jury apparently concluded the feds' proof was insufficient to justify conviction of this unique "offense fact." But whether Alleyne has a criminal history and should get a longer sentence for that reason seems like the kind of factor we instead think should (and I think constitutionally can) be kept from a jury and presented only to a judge at sentencing. (For due process reasons, I would hope every significant sentencing factor has a high required proof burden, but that argument is based in due process, not the jury rights of Article III and the Sixth Amendment.)

Posted by: Doug B. | Jan 15, 2013 12:14:18 PM

"mandatory sentencing consequences"---high-falutin' words to mask what is basically an ipse dixit value judgment . . . .

Maybe I am just missing a whole lot, but it seems to me that all this energy yapping about Alleyne boils down to one thing--basically, we're protecting a criminal's right to judicial discretion in sentencing. If, with respect to a crime with an indeterminate 5-10 year range, a judge is free to slap the criminal with seven years for whatever reason, why does that suddenly become a problem when he has to do it when he finds certain facts? Tying the judge's hands is now a problem, but didn't Apprendi tie the judge's hands?

Posted by: federalist | Jan 15, 2013 11:24:53 PM

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