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June 21, 2024

Supreme Court, by unique 6-3 vote, decided Apprendi rights apply to certain ACCA findings

Among the many reasons I find the Apprendi/Blakely line of cases so fascinating is that the jurisprudence here, as Forest Gump might but it, is "like a box of chocolates ... you never know what you're gonna get."  The Supreme Court's lengthy ruling this morning in Erlinger v. US, No. 23-370 (S. Ct. June 21, 2024) (available here), highlights this reality through this remarkable line-up of Justices:

GORSUCH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and THOMAS, SOTOMAYOR, KAGAN, and BARRETT, JJ., joined. ROBERTS, C. J., and THOMAS, J., filed concurring opinions. KAVANAUGH, J., filed a dissenting opinion, in which ALITO, J., joined, and in which JACKSON, J., joined except as to Part III. JACKSON, J., filed a dissenting opinion.

Got that? Here is how Justice Gorsuch's opinion for the Court starts and ends:

This case concerns the Armed Career Criminal Act (ACCA) and the Fifth and Sixth Amendments. ACCA imposes lengthy mandatory prison terms on certain defendants who have previously committed three violent felonies or serious drug offenses on separate occasions.  The question we face is whether a judge may decide that a defendant’s past offenses were committed on separate occasions under a preponderance-of-the-evidence standard, or whether the Fifth and Sixth Amendments require a unanimous jury to make that determination beyond a reasonable doubt....

The jury trial may have “never been efficient.” Apprendi, 530 U. S., at 498 (Scalia, J., concurring).  It may require assembling a group of the defendant’s peers to resolve unanimously even seemingly straightforward factual questions under a daunting reasonable doubt standard.  Avoiding the prejudice associated with the introduction of evidence of past crimes may require careful attention, too.  But the right to a jury trial “has always been” an important part of what keeps this Nation “free.” Ibid.  Because the Fifth and Sixth Amendments do not tolerate the denial of that right in this case, the judgment of the Court of Appeals for the Seventh Circuit is vacated, and the matter is remanded for further proceedings consistent with this opinion.

The concurring opinions are short, and the dissenting opinions are long, and Justice Jackson's views on these issues in her solo dissent merit mention in this first post:

Today, the Court concludes that Apprendi v. New Jersey, 530 U.S. 466 (2000), must be read [so that] facts that relate to a defendant’s prior crimes cannot be determined by judges but instead must be found by juries. I disagree for several reasons, including my overarching view that Apprendi was wrongly decided. Like many jurists and other observers before me, I do not believe that Congress exceeds its constitutional authority when it empowers judges to make factual determinations related to punishment and directs that a particular sentencing result follow from such findings.

I recognize, of course, that Apprendi is a binding precedent of this Court, and one that “has now defined the relevant legal regime” for nearly a quarter century. Alleyne v. United States, 570 U.S. 99, 122 (2013) (Breyer, J., concurring in part and concurring in judgment).  Given that reality, untangling the knots Apprendi has tied is probably infeasible at this point in our Court’s jurisprudential journey.  But considering the flaws inherent in Apprendi’s approach, I cannot join today’s effort to further extend Apprendi’s holding, particularly when there is a well-established recidivism exception to the Apprendi rule that applies to the circumstances of the case before us now.

When thinking about issues like acquitted conduct and other matters, I have been (wrongly) assuming that Justice Jackson would likley be a vote for expanding Apprendi rights and that Justice Barrett would likley be a vote for limiting Apprendi rights. That they are on opposite sides here is so interesting, and reinforces yet again my view that the "true originalists" are going to be, in lots of settings, keen on expending crimianl defendant rights against the government (discussed a bit here).

June 21, 2024 at 10:24 AM | Permalink


I think it is significant that two of the three dissenters were Alito and Jackson. Both of them recognize what the implications of this ruling could be on practicing attorneys.

Posted by: tmm | Jun 21, 2024 12:03:23 PM

Justice Jackson had previous experience as a Vice Chair and Commissioner on the U.S. Sentencing Commission, as a federal public defender, and as a lawyer in private practice.

She provides an educated perspective.

Justice Gorsuch had some strong words (what she "asserts" and so on) for Jackson's dissent. Majority opinions and dissenting opinions do sometimes clash.

It was interesting to me, however, that Gorsuch went out of his way in multiple separate opinions in other cases on Friday to politely note his disagreement.

Perhaps, the amount of time spent in answering a solo dissent is a respect of a sort.

Posted by: Jolene | Jun 23, 2024 1:26:00 PM

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