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June 17, 2013

Per Justice Thomas in 5-4 SCOTUS split, Alleyne extends Sixth Amendment to findings triggering mandatory minimums

Big news from SCOTUS today for sentencing fans, with this (abridged) initial report coming from the fine folks live-blogging at SCOTUSblog:

Alleyene: Any fact that increases the mandatory minimum is an "element" that must be submitted to the jury. 5-4 opinion per Justice Thomas.

Majority is Thomas, Ginsburg, Breyer, Sotomayor, and Kagan. Dissent by Roberts, joined by Scalia and Kennedy. Alito dissents separately.... Justice Sotomayor also filed a concurring opinion....

This is a major criminal law ruling on the right to a jury trial. The Court reverses an earlier contrary ruling....

Here is the opinion in Alleyne.

And here is the money quote from the majority opinion: "Because there is no basis in principle or logic to distinguish facts that raise the maximum from those that increase the minimum, Harris was inconsistent with Apprendi. It is, accordingly, overruled." Alleyne, slip op at 15.

Based on a much-too-quick first read, this Alleyne ruling seems to be everything (and not much more) than what should have been expected and predicted when the Court granted cert to reconsider Harris.  With all new Justices filling in the roles and votes of their predecessors, Harris gets reversed now because (and only because) Justice Breyer is no longer willing to prop up the ruling.  And, as he continues to play Hamlet with Sixth Amendment doctrine, Justice Breyer also continues to dump on the whole Apprendi line of case.

As I predicted in this post last November (and especially with speculations precedents inother areas perhaps being in jeopardy), the most interesting and enduring significance of Alleyne is the sparring between Justices Sotomayor and Alito over stare decisis.  I suspect after the con law folks get over their disappointment that we did not get any huge SCOTUS rulings today, there will be some enduring buzz over what all the Justices had to say (and not say) about stare decisis in Alleyne.

June 17, 2013 at 10:15 AM | Permalink


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So what about those that plead guilty, the Judge can still apply the mandatory minimum... Maybe it hasn't been thought out this degree yet?

Interesting, otherwise just plead guilty and the MM is a mute point.

Posted by: MidWest Guy | Jun 17, 2013 10:38:32 AM

Interesting day on the Scalia v. Thomas front -- they split in three cases. Sotomayor/Alito will spar for years to come. They are sort of the "enforcers" of each other's blocs. S/T did stick together for the other criminal case, Salinas.

Posted by: Joe | Jun 17, 2013 10:50:25 AM

MidWest Guy, It's not that simple. The holding in Alleyne applies to guilty plea colloquys as well. That is, if a prosecutor intends to seek a MM enhancement, the facts giving rise to that enhancement will have to be affirmatively acknowledged by the defendant at the guilt phase. It's been common practice in my district for folks to plead to 924(c) gun charges and to dicker at sentencing over which of the MMs applies (5 years for mere possession in connection, 7 years for brandishing, 10 years for discharge, etc). I believe Alleyne will prevent such a practice in the future. In the drug MM context this has mostly been addressed with the use of the 851 enhancement mechanism, but I do think that the Rule 11 colloquy in those cases will need to be adjusted to avoid procedural error under Alleyne in the future. What I wonder is whether and to what extent this ruling will alter the plea/trial calculus in cases with a range of applicable MMs. I think that will depend in large part on the district-by-district approach to charge bargaining in ordinary cases.

Posted by: AFPD | Jun 17, 2013 11:01:52 AM

One sidelight of today's ruling is that it will create slightly tougher sledding for Leahy/Paul. Where the fact that triggers the MM is what the jury finds BRD, rather than what the judge says is there, the case for getting rid of MM's is weaker. It will still be made, since the basics of it involve the putative allocation of power between the judge and the prosecutor, not the judge and jury, but a jury's finding BRD makes it harder to argue that MM's are imposed MERELY at the arbitrary insistence of the executive branch.

Posted by: Bill Otis | Jun 17, 2013 11:07:14 AM

Excellent point, Bill, and well stated.

Posted by: Doug B. | Jun 17, 2013 11:18:02 AM

Good comments Bill: I think Law wise you are right.. But the Leahy/Paul bill will end up as Political posing. There is a fair chance at getting it passed...About a 20% chance is all, I don't see it having legs going forward given the squabling on the hill. Too many Senselessbrenners with a vote.

Posted by: MidWest Guy | Jun 17, 2013 12:14:53 PM

With all new Justices filling in the roles and votes of their predecessors, Harris gets reversed now because (and only because) Justice Breyer is no longer willing to prop up the ruling.

From his past votes, isn't Roberts in Apprendi-land, at least on some cases? He didn't vote with today's majority, but neither did Scalia, a steadfast Apprendi supporter who simply doesn't find the same logical contradiction that Breyer does, between Apprendi and Harris.

Posted by: Marc Shepherd | Jun 17, 2013 12:44:53 PM

You are right, Marc, that CJ Roberts seems to be a mini-Scalia when in comes to seeing the benefits and borders of Apprendi-land. And that is why, on some other issues concerning what appears in that Sixth Amendment magical land, there are at least six viable votes for a defendant.

Posted by: Doug B. | Jun 17, 2013 1:26:56 PM

Doug --


As to other aspects of the opinion: While smart lawyers can almost always find more-or-less plausible distinctions, I think Thomas has the better of the argument if one takes the animating principle of Apprendi at full force, as Thomas always has. (Whether one should do that is a question for another day).

As to the day-to-day impact of the decision: Not much. As has been pointed out, 95% of criminal cases are resolved by plea bargains. In the future, prosecutors will just include in the bargain the defendant's admission to the MM-triggering fact.

The great majority of defendants will do so, for the same reason they agree to bargains now: Overall, it's worth the candle. For those who don't, the prosecutor might go along with a fallback, to wit, that the judge gets to decide (with or without a hearing) whether the triggering fact exists.

For the defendants who refuse that, fine by me. We'll all go to trial.

The two key facts about trials are (1) the government wins almost all of them (which is the reason defendants take the bargain instead); and (2) once the jury buys the government's narrative about basic guilt or innocence, it's also very likely to buy the government's version of the details of what happened (e.g., how much of the drug was the defendant selling).

The bottom line, then, is that while the opinion may make (or may turn out not to make) a big doctrinal difference, the outcome in the run of cases will be minimal if not invisible.

Posted by: Bill Otis | Jun 17, 2013 3:05:17 PM

Who will change pretend to? Will it pretend to the one's who go to trail or plea also?

Posted by: Laura | Jun 21, 2013 6:43:22 PM

Hello. I am a paralegal student at South University. I see some discussion here regarding defendants who plead out, but I am not sure if there is any consensus on the effect the change will have in those cases. I am particularly interested in federal criminal cases. Any thoughts/insights will be much appreciated.

Posted by: Parakate | Aug 20, 2013 7:36:45 PM

I am a victim of the sentencing conspiracy from the 1990's. I had a life sentence as a first time offender for the offense of conspiracy to manufacture a detectable amount of meth that the jurors were instructed that they need not agree that any meth was ever made, only that the intent to do so was enough. The governments star witness stated in court that I did not share in the proceeds of the conspiracy nor was I a partner during the time frame of most all of this. I had an innocent codefendant get sent to 204 months also. He got out in July of 2010. The President granted me clemency in August of 2016

Posted by: James McGee | Jun 3, 2017 10:51:13 PM

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