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June 17, 2013

First-cut reactions as to what is big, and not so big, about Alleyne's reversal of Harris

I will likely have a lot to say about the specifics of the Sixth Amendment discussions in all the Alleyne opinions later today once I get more time to review the decision more closely.  But I have three quick reactions about the ruling and its potential impact I wanted to share right away.  I will give this trio of reactions these labels: big, not-so-big, could-be-huge.

The Big of Alleyne: though serious talk of a "Booker" fix to the advisory guidelines sentencing system has not had much juice for a very long time, the Alleyne ruling serves as a final nail in the "mandatory topless guidelines" idea that made the rounds as a potential legislative response to Blakely and Booker in the federal system.  That "fix," which would have required judges to do fact-finding to raise guideline minimums without impacting maximums, depended on the validity and vitality of Harris.  And Harris is now a goner.

The No-So-Big of Alleyne: though persons imprisoned now based on mandatory minimums triggered by judicial fact-finding might hope Alleyne is a new jurisprudential key to freedom, a host of doctrices may ensure very few new imprisoned persons get much benefit from Alleyne.  For starters, the retroactivity doctrines of Teague and AEDPA may make it hard for those long ago sentenced to get their Alleyne claims even heard in court.  Moreover, the harmeless error doctrines of Cotton and Recuenco may make it easy now for judges to say, even in those cases in which the issue can still be raised, that any Sixth Amendment error was harmless.

The Could-Be-Huge of Alleyne: there are any number of shaky exceptions and carve-outs to the full application of Apprendi doctrines, ranging from the prior-conviction exception of Almendarez-Torres to all sorts of efforts by lower courts to refuse to acknowledge Apprendi's potential impact on all sorts of judicial fact-finding that impacts punishment realities.  If Alleyne (which comes just a year after Southern Union) portends a Court now willing and eager to keep taking up Apprendi issues and extending the reach of the Sixth Amendment, we all might be in for quite an interesting Sixth Amendment ride over the next few Term.  (And, for the really creative, perhaps Alleyne could be combined with Peugh to perhaps even generate procedural protections even for federal defendants sentencing in a post-Booker world.)

Prior related post on Alleyne ruling:

June 17, 2013 at 11:13 AM | Permalink


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Smarter folks than me are already, no doubt, combing Alleyne for ways to get Almendarez-Torres overruled in the next term or so. The numbers of cases affected by its application far outstrip the numbers of those cases that will be affected by Alleyne. That said, my bet is that the Almendarez-Torres exception will remain in place, as it predates both Apprendi and Harris and rests on firmer logical footing than Harris ever did.

Posted by: AFPD | Jun 17, 2013 11:35:21 AM

Maybe this will at least provide impetus for a holding on the application of Almendarez-Torres to juvenile adjudications. I believe there is a split on this, but most courts are on what I consider the wrong side of that split -- allowing the increase of maximum punishments based on judge-found prior juvenile adjudications.

The reason I think this is the wrong view is that the very factors that Almendarez-Torres relied on to assume the general validity of the fact of a prior conviction -- the right to a jury and a full adversary process -- are absent in the juvenile system. And this can have a huge impact on an 18- or 19-year-old who is convicted of a first adult felony, but can be habitualized based on sometimes minor/unreliable juvenile adjudications. (Since not as much is at stake in juvenile court, with many "felony" charges like burglary resulting in simple probation, there is often little motivation for counsel to bargain for reduced charges even if the State would have trouble proven the greater charge.)

Anyway, this is one of my Sixth Amendment pet peeves, so I would love to see the Court take it up soon.

Posted by: anon | Jun 17, 2013 11:57:18 AM

Is it some sort of Freudian slip that even though Alleyne came out of the Fourth Circuit that page 17 of the majority opinion states "we vacate the Sixth Circuit's judgment. . . "

Posted by: ? | Jun 17, 2013 12:12:59 PM

If you're a defense attorney, why would you want Almendarez-Torres overruled?

I always thought that the last thing the defense wanted, was for the defendant's prior record to be put in front of the jury. I mean, if the defendant is on trial for (say) armed robbery, do you want the jury to be told about all the other armed robberies the defendant committed?

If you want the defendant's prior convictions to be proved to the jury, then it seems you're asking all of that to be put into the record. That sounds to me like a boon to the prosecution, not to the defense.

Posted by: Marc Shepherd | Jun 17, 2013 12:40:03 PM

Marc, you have to view this from the marginal case, the case where the existence or something about the prior conviction is disputed and that factual determination matters. In the vast majority of cases, prior convictions are not disputed and there would be no need for resolution. But in cases where existence or identity or something else about the nature of the prior conviction is disputed, who should be making the factual determination, a judge or jury?

And it is not necessarily the case that the jury would always be told of the prior convictions in every case. In Arizona, they used to have a scheme were priors were pleaded and proved to a jury. But the prior convictions were only relevant after conviction of what Justice Thomas calls the "core crime." Therefore, the trials were bifurcated. You would have your trial on the "core crime" and, if found guilty, then the judge would ask the defendant whether he/she stipulated to the prior convictions (which was almost always yes). But in the small number of cases where the criminal history was contested, the jury would simply be brought back in and you would have a second stage of the trial. Again, in most cases this would be pretty straightforward on the state's part "here are the certified copies of conviction etc--we've proved them BRD." The only time it would really matter is when there was some complication in proof--it is then that the burden of proof and identity of factfinder are critical.

Even if you don't have a bifurcated system, there would still be cases where the consequences of the prior conviction may be serious enough that the defendant would choose as a tactical matter to contest it. A defendant can always stipulate to criminal history ala Old Chief. The real question is, if the defendant wants to contest some criminal history, who makes the decision and what is the burden of proof?

Posted by: Randall Hodgkinson | Jun 17, 2013 1:24:16 PM

Having not had too long to review Alleyne myself and parse the various opinions, does anyone have a sense as to whether this may fit one of the exceptions to Teague's anti-retroactivity presumption? Perhaps it may find life in pre-Alleyne cases under an expanded reading of Penry's language with regard to categories of punishment?

Posted by: Adam Stevenson | Jun 17, 2013 4:09:40 PM

My experience is that, for prior conduct enhancements,most defendants waive any Aprendi-claim to a jury finding and allow the court to find the prior bad act rather than having the evidence introduced in the guilt phase. (Our state statute requires a judicial finding be made before the guilt phase goes to the jury, but include enhancements for unconvicted conduct -- e.g., prior bac suspension to enhance a driving while suspended charge.)

Posted by: tmm | Jun 17, 2013 5:06:26 PM


I'm certainly no authority but there are two things that lead me to believe this ruling likely has no retroactive effect.

1. This is a quote from Sotomayor's concurrence (joined by Kagan and Ginsburg): "As an initial matter, when procedural rules are at issue that do not govern primary conduct..." So they clearly see this as a procedural and not a substantive change.

2. SCOTUS rule against retroactivity of Ring v. Arizona. I have a hard time seeing what would make this different.

Posted by: Matt | Jun 17, 2013 7:39:31 PM


Ah, great point with regard to Ring. Thanks for pointing that out.

Posted by: Adam Stevenson | Jun 18, 2013 7:50:50 AM

Hi Doug,

There's another potential Could-Be-Huge embedded in Alleyne, too.

It's found in the majority opinion in Part III-B (which garnered five votes), the second to last paragraph (including accompanying footnote 4). Here, Justice Thomas maintains that it violates the Apprendi rule for a judge to make a finding of fact which *would* trigger an enhanced statutory penalty range -- even if the *actual* sentence imposed falls within the unenhanced range. (He illustrates this intended meaning clearly in the footnote with the example from the Illinois intimidation statutes.) The making of the finding itself, he seems to assert, is what is tantamount to convicting of the aggravated offense.

Needless to say for folks familiar with the Apprendi line of cases, this is *not* how the doctrine has been interpreted previously by the courts. (See, e.g., several of the opinions in Booker, debating the application of Apprendi doctrine to the Guidelines in terms of the actual sentence imposed based on Guidelines factfinding, not the possible sentence increases triggered by Guidelines factfinding.)

In Alleyne, of course, these comments are dicta, because the brandishing factfinding there clearly did alter the statutory floor. But if this analysis is taken seriously by the Court, then it would mark a pretty major shift in how Apprendi works. The rule (slip op., pg. 1) would essentially be changed from "any fact that, by law, [in fact causes an increase in] the penalty for a crime" to "any fact that, by law, [authorizes an increase in] the penalty for a crime" is an element of the offense.

If the Court goes there, that's Huge. Maybe even HUGE.


Posted by: B.J. Priester | Jun 18, 2013 10:15:22 AM

This is the latest in long line of cases that have been decided incorrectly. All of them mix apples and oranges. They deal with a very complex, unfolding problem; namely, antisocial behavior. Decision-makers naturally reduce their cognitive load by aggregating its key features. Crimes are wrong, offenses are bad; criminal offenses are both wrong and bad. The current system does not deal with this complexity; instead our responses to them were lumped together, aided by a set of heuristics we call guidelines. As we know from a great deal of research, heuristics often result in biased decision-making. Here the court should have disaggregated the state's responses to this problem and proceeded accordingly.

Posted by: Tom McGee | Jun 18, 2013 1:30:56 PM

In the case of juvenile court adjudications, where the initial proceeding may not have been seriously contested and full adversary protections were not in place, it may be harder to re-prove the offenses BRD to an adult-court jury (or to a judge - the BRD standard may actually be more valuable here than the jury right). So there may be some substantial value in getting rid of the A-T rule in that circumstance.

Posted by: anon | Jun 18, 2013 2:05:33 PM

So how does this work in practice? If a client is charged only with carrying or using (the 5-year min crime), but the jury charge asks the jury to find brandishing (the 7-year min crime), can a defendant argue error for failing to *charge* what Alleyne says is the "separate offense" of brandishing? I assume there might not be harm. But is it error?

Posted by: Anon | Jun 20, 2013 11:39:31 AM

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