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July 2, 2018

Might Justice Kennedy's retirement lead to defendants having stronger Sixth Amendment rights under Apprendi and Blakely?

As hard core sentencing fans know, Justice Anthony Kennedy has been a long-standing opponent of the Sixth Amendment jury trial rights that were recognized for defendants in Apprendi v. New Jersey and expanded in Blakely v. Washington.  He was in the dissent in both of those cases, as well as in every subsequent non-capital case that ruling in favor of defendants regarding Sixth Amendment jury trials rights (e.g., BookerCunningham, Southern Union, Alleyne).   In his separate Cunningham dissent, Justice Kennedy lamented "the Court continu[ing] in a wrong and unfortunate direction in the cases following Apprendi v. New Jersey."  But with his impending departure, Justice Kennedy will no longer have any say in the Court's  direction in the cases following Apprendi v. New Jersey.

Critically, because Chief Justice Roberts has been a supporter of some (though not all) expanded applications of the Sixth Amendment as shown through his votes in Cunningham and Southern Union, the Court already has five Justices who have voted for extensions of Apprendi and Blakely in some settings without counting the possible (and likely?) sixth vote of the new Justice Neil Gorsuch.  Since the next new Justice is almost certain to be at least somewhat more supportive of Sixth Amendment jury trial rights than Justice Kennedy has been, it seems to me that coming SCOTUS Terms could well have seven possible votes for extending Apprendi and Blakely jury trial rights in some settings.  (Justice Breyer has never, sadly, really heeded Justice Scalia's advice that he "buy a ticket to Apprendi-land," and Justice Alito does not seem to want to be in any land that gives criminal defendants more rights.)

These issues come to mind in part because of this interesting "Petition of the Day" spotlighted by SCOTUSblog.  The petition was filed by the feds in United States v. Haymond, a case in which the defendant prevailed in the Tenth Circuit on an Apprendi-type claim after the district court revoked a ten-year term of supervised released and imposed five years of reimprisonment following a preponderance of the evidence finding that the defendant violated the conditions of his release by knowingly possessing child pornography.  I am not sure fans of Apprendi and Blakely ought to be actively rooting for this case to be taken up by SCOTUS (in part because it is the feds appealing), but I am sure fans of Apprendi and Blakely should be welcoming a Court in which a new Justice more in the originalist mold of Justices Gorsuch and Scalia and Thomas will be replacing Justice Kennedy.

A few prior posts with thoughts on a post-Justice Kennedy Court:

July 2, 2018 at 09:52 AM | Permalink


That case irritates me. It turns entirely on whether or not his sentence was a "new" sentence for sentencing purposes.

Hell if I know, there are plausible arguments both ways. Is today a new day because of what the calender says or is today just like yesterday because the earth keeps moving around the sun? Flip a coin.

Besides, the pragmatist in me says that even if he gets to go before a jury the jury will fry him anyway. So who cares? (rhetorical question)

Posted by: Daniel | Jul 2, 2018 1:46:11 PM

what's left of the old Apprendi coalitions?
Majority: Thomas, Ginsburg
Dissent: Breyer

What do we know about the rest?

Posted by: RW | Jul 2, 2018 5:04:05 PM

RW, in Alleyene v U.S. 133 S.Ct. 2151, (2013) Justices Sotomayor and Kagan joined Thomas' opinion for the majority, holding that any fact that increases a mandatory minimum, rather than maximum, must be found by a jury.

Chief Justice Roberts dissented in Alleyene, but I think it was confined to extending Apprendi to minimum sentences instead of maximum sentence. Roberts' adherence to the basic principles of Apprendi remain, in my opinion. He writes, "Our holdings that a judge may not sentence a defendant to more than the jury has authorized properly preserve the jury right as a guard against judicial overreaching."


Posted by: bruce cunningham | Jul 2, 2018 5:28:52 PM

This is a very interesting article and topic. The Sixth Amendment issues have gotten no mention in the media. All the media cares about is abortion rights.

I am going to go back to reading this blog every day. My computer was goofy for a while.

This is one of the best legal blogs in America and the world.

Thank you.

Posted by: Liberty2nd | Jul 2, 2018 10:48:32 PM

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