Sentencing Law and Policy

Supreme Court grants cert on application of Sixth Amendment rights for key issue for applying ACCA

In this post two weeks ago, I flagged the Supreme Court filing by the United States in response to a cert petition in an Armed Career Criminal Act (ACCA) case in Erlinger v. US, No. 23-370.  In that post, I noted the feds wanted cert granted in this case:

Petitioner [contends] that the Sixth Amendment requires a jury to find (or a defendant to admit) that predicate offenses were committed on different occasions under the ACCA. In light of this Court’s recent articulation of the standard for determining whether offenses occurred on different occasions in Wooden v. United States, 595 U.S. 360 (2022), the government agrees with that contention. Although the government has opposed previous petitions raising this issue, recent developments make clear that this Court’s intervention is necessary to ensure that the circuits correctly recognize defendants’ constitutional rights in this context.  This case presents a suitable vehicle for deciding the issue this Term and thereby providing the timely guidance that the issue requires. 

This morning, via this order list, the Supreme Court granted cert in Erlinger. Here is the formal Question Presented from the federal government's cert petition:

Whether the Constitution requires that a jury find (or the defendant admit) that a defendant’s predicate offenses were “committed on occasions different from one another” before the defendant may be sentenced under the Armed Career Criminal Act of 1984, 18 U.S.C. 924(e)(1).

And though this case deals with a relatively little issue in the application of ACCA, I cannot help but wonder if this case could prove to be a big Sixth Amendment case.  Notably, we have not had a significant Sixth Amendment case on sentencing issues before SCOTUS since Haymond, and that was before Justices Barrett and Jackson were member of the Court. Moreover, as I noted in my prior post, Justice Thomas has suggested that he disagrees with the entire prior-conviction exception to Sixth Amendment rights (on originalist grounds), so maybe this ACCA issue could even provide the Court an opportunity to reconsider that (historically suspect) exception altogether.

I assume Erlinger v. United States, will get argued in the spring and may end up one of the last (small?) cases to get decided by the Justices this Term.  I also expect that SCOTUS will end up appointing someone to defend the Seventh Circuit's decision below since both the feds and the defendant here have the same (pro-defendant) view of this issue.

US Solicitor General supports SCOTUS review and application of Sixth Amendment rights for key issue for applying Armed Career Criminal Act

A helpful reader made sure I saw a notable Supreme Court filing by the United States in response to a cert petition in an Armed Career Criminal Act (ACCA) case. Specifically, in Erlinger v. US, No. 23-370, a case scheduled to be conferenced by SCOTUS this week, the Solicitor General starts the discussion section of this filing in this way:

Petitioner renews his contention (Pet. 14-18) that the Sixth Amendment requires a jury to find (or a defendant to admit) that predicate offenses were committed on different occasions under the ACCA. In light of this Court’s recent articulation of the standard for determining whether offenses occurred on different occasions in Wooden v. United States, 595 U.S. 360 (2022), the government agrees with that contention. Although the government has opposed previous petitions raising this issue, recent developments make clear that this Court’s intervention is necessary to ensure that the circuits correctly recognize defendants’ constitutional rights in this context. This case presents a suitable vehicle for deciding the issue this Term and thereby providing the timely guidance that the issue requires.

Here is more from the filing:

In Wooden, this Court considered the proper test for determining whether prior convictions were committed on different occasions for purposes of the ACCA.  See 595 U.S. at 364. The government advocated an elements-based approach to determining whether two offenses occurred on different occasions, which it viewed as consistent with judicial determination of a defendant’s ACCA qualification.  See Gov’t Br. at 46, Wooden, supra (No. 20-5279); see also, e.g., Gov’t Br. in Opp. at 5-11, Walker v. United States, 141 S. Ct. 1084 (2021) (No. 205578).  The decision in Wooden, however, rejected the government’s elements-based approach to the different-occasions inquiry. 595 U.S. at 366.

The Court held instead that the inquiry is “holistic” and “multi-factored,” and that “a range of circumstances may be relevant to identifying episodes of criminal activity.” Wooden, 595 U.S. at 365, 369....

In light of the holistic and multi-factored standard adopted in Wooden, the government now acknowledges that the Constitution requires the government to charge and a jury to find beyond a reasonable doubt (or a defendant to admit) that ACCA predicates were committed on occasions different from one another....

It has recently become clear, however, that the courts of appeals will not embrace that analysis without this Court’s intervention. The question presented — which is important to the administration of criminal law — accordingly warrants this Court’s review this Term....

Through both their actions and their words, the courts of appeals have made the need for this Court’s review apparent. The Fourth Circuit’s denial of rehearing en banc — premised on the insufficiency of review by a lower court — means that the underenforcement of defendants’ constitutional rights will persist there.  The Eighth Circuit’s refusal to resolve the Sixth Amendment question, after granting en banc rehearing, suggests that its pre-Wooden precedent is also likely to endure.  And despite more than a year having passed since Wooden, no other circuit has reconsidered its pre-Wooden approach.

Wooden it be nice if SCOTUS would grant cert ASAP in this ACCA case?  Notably, Justice Thomas has suggested that he disagrees with the entire prior-conviction exception to Sixth Amendment rights, so maybe this (little?) ACCA issue could even provide the Court an opportunity to reconsider that (historically suspect) exception altogether.

Notable Ninth Circuit amicus brief making originalist case that jury trial right attaches to revocation of federal supervised release

I have noted in this prior post Professor Jacob Schuman work on the law of revocation at the Founding.  Now appearing on SSRN is this Brief of Criminal Law Scholars seeking to operationalize this work as Amici Curiae in Support of Appellant Seeking Reversal in US v. Bowers (9th Cir.).  Here is how the brief is described via the SSRN abstract:

This brief of criminal law scholars as amici curiae explains why the original understanding of the jury right requires a jury trial for revocation of supervised release.

The Supreme Court interprets the Fifth and Sixth Amendment jury right based on “the historical role of the jury at common law ... in the colonies and during the founding era.” Southern Union Co. v. United States, 567 U.S. 343, 353 (2012).  In United States v. Haymond, 139 S. Ct. 2369 (2019), the Court split 4-1-4 on whether a five-year mandatory-minimum sentence imposed upon revocation of supervised release violated the jury right.  In his dissenting opinion, Justice Alito identified “forfeiture” of a “recognizance” as the closest Founding Era equivalent to revocation of supervised release, but said he could find “no evidence” that forfeiture proceedings required a jury trial.

Justice Alito was half-right. When the Constitution was ratified, forfeiture of a recognizance was the closest equivalent to revocation of supervised release.  However, there is also abundant evidence that recognizance forfeitures at the Founding did require a jury trial.

This jury requirement only disappeared during the 19th century due to the development of parole and probation, which changed the structure of community supervision from an additional penalty to a withheld punishment.  Because supervised release is structured as an additional penalty, not a withheld punishment, the common law at the time the Constitution was ratified would require a jury trial for revocation of supervised release, even if not for revocation of parole or probation.  Revoking supervised release based on judge-found facts therefore violates the original understanding of the right to a jury trial.

"The Constitutional Limits of Criminal Supervision"

The title of this post is the title of this new article authored by Eric Fish and now available via SSRN. Here is its abstract:

Nearly four million people are under criminal supervision in the United States.  Most are on probation or parole.  They can be sent to prison if a judge concludes that they violated the terms of their supervision.  When that happens, there is no right to a jury trial.  The violation only needs to be proven to a judge by a preponderance of the evidence.  This creates a constitutional puzzle.  In several important cases, the Supreme Court has recognized that the Sixth Amendment right to trial by jury is not limited to the formal elements of criminal statutes.  It applies in any situation where proving a fact to a court triggers additional punishment.  So then why is criminal supervision constitutionally permitted, when it involves judges sending people to prison based on facts not proven to a jury?  Under current doctrine, the answer is surprisingly unclear.  The Court’s 2019 decision in United States v. Haymond raised this issue directly, but failed to provide an answer.

This Article proposes a new solution to this constitutional puzzle: the conditional sentencing theory.  This theory explains how criminal supervision can be made compatible with the Sixth Amendment.  It holds that a criminal sentence can include provisions that change the defendant’s custody status if certain conditions are satisfied.  Such a sentence contains an amount of custody time, an amount of supervision time, an amount of suspended custody time for supervision violations, and a list of acts that trigger violations.  Under this theory, a judge sentencing a person for a supervision violation is not imposing a new punishment.  They are instead implementing the terms of the original sentence, switching someone from supervision to custody based on triggering rules announced at the initial sentencing hearing.

The conditional sentencing theory places two important constitutional limits on criminal supervision, which are not currently recognized.  First, a judge cannot retroactively change a supervision sentence by lengthening it, adding more conditions, or adding more prison time.  Second, a sentence for a supervision violation cannot exceed the statutory maximum for the underlying crime.  Numerous state and federal supervision laws transgress these limitations.  Many state probation laws, for example, let judges extend probation or change its terms at a violation hearing.  In some states, like Wisconsin and Pennsylvania, this process can repeat indefinitely.  The same is true in the federal system of supervised release.  That system lets judges extend supervision unlimited times, keeping supervisees trapped in an endless cycle of new punishments — a life sentence on an installment plan.  The Article closes by arguing more broadly that judges should direct greater constitutional scrutiny at institutions, like criminal supervision, that make incarceration more efficient by circumventing defendants’ rights.

A true scholarly feast for Apprendi fans

I was quite pleased to discover that the North Carolina Law Review now has fully available online here the full contents of its June 2021 issue with article from its Apprendi at 20 symposium.  Everyone of these articles looks like a must-read and I am already joyously working my way through them all:

Apprendi at 20: Reviving the Jury's Role in Sentencing by Stephanos Bibas

The Sixth Amendment Sentencing Right and Its Remedy by Carissa Byrne Hessick

Handling Aggravating Facts After Blakely: Findings from Five Presumptive-Guidelines States by Nancy J. King

Apprendi's Two Constitutional Rights by Kate Stith

The Sixth and Eighth Amendment Nexus and the Future of Mandatory Sentences by William W. Berry III

The Federal Sentencing Guidelines: Some Valedictory Reflections Twenty Years After Apprendi by Frank O. Bowman III

Apprendi/Booker and Anemic Appellate Review by Nancy Gertner

A Racially Biased Obstacle Course: Apprendi Transformed the Federal Sentencing Guidelines into a Series of Judicial Obstacles; Can Shame Reduce the Racial Disparities by Kallie S. Klein and Susan R. Klein

"The Sixth Amendment Sentencing Right and Its Remedy"

The title of this post is the title of this notable new paper authored by Carissa Byrne Hessick and now available via SSRN.  Here is its abstract:

The Sixth Amendment sentencing doctrine recognizes the right to a jury trial of facts that increase criminal sentences.  The doctrine has had only a minimal effect on sentencing because subsequent cases crafting a remedy largely undermined the right.  The remedial cases have undermined the Sixth Amendment sentencing right in three notable ways: (1) by repeatedly refusing to recognize that district courts possess an unfettered power to sentence based on nothing more than a policy disagreement; (2) by encouraging appellate court judges to review sentences in a manner that is designed to curtail district court discretion; and (3) by refusing to require district court judges to engage in any independent sentencing analysis.  Although the Supreme Court has justified its remedy by reference to historical sentencing practices, these three choices in its remedial cases represent significant departures from historical practice.  What is more, the current remedy fails to vindicate the interests protected by the Sixth Amendment — the liberty interests of criminal defendants and democratic input into individual criminal cases.  Until and unless the Court revisits its remedial decisions, the Sixth Amendment sentencing right will continue to be little more than a meaningless formalism.

Montana Supreme Court talks through juve LWOP resentencing after Miller

This past Friday, the Montana Supreme Court handed down a notable ruling (with lots of opinions) on the application of the US Supreme Court's juvenile LWOP sentencing jurisprudence and related issues.  The main opinion and various concurring and dissenting opinions in Montana v. Keefe, No. 2021 MT 8 (Mont. Jan. 8, 2021) (available here), all make for interesting reads.  Here are some of the essentials from the majority opinion: 

We agree with the Briones court that post-offense evidence of rehabilitation is clearly required to be considered by a court resentencing a juvenile who is serving a sentence of life without parole.  Because Miller commands a resentencing court to consider “the possibility of rehabilitation” before a juvenile can lawfully be sentenced to life without parole, evidence of rehabilitation in the years since the original crime must be considered by the resentencing court.  This is consistent with the sentencing policy of Montana which does not merely provide for punishment, protection of the public, and restitution, but also for rehabilitation and reintegration of offenders back into the community....

Although we have determined the District Court erred in determining Keefe was “irreparably corrupt” and “permanently incorrigible” and are reversing his sentence on that basis, we must address whether the issue of the irreparable corruption of a minor is a fact which must be found by a jury.  Keefe has argued, pursuant to Apprendi, that he is constitutionally entitled to have a jury determine whether he is, in fact, “irreparably corrupt” before a possible life without parole sentence.  We disagree....

Here, neither “irreparable corruption” nor “permanent incorrigibility” are facts which could increase a possible sentence.  Rather, youth is a mitigating factor which can reduce the possible sentence for deliberate homicide in Montana.  In accordance with Miller and Steilman, a jury is not required to determine irreparable corruption and permanent incorrigibility — that determination is properly left to the resentencing judge.

Student SCOTUS preview part three: mapping out likely votes after oral argument in US v. Haymond

I noted here back in 2017 an interesting opinion in US v. Haymond where a Tenth Circuit panel declared unconstitutional the procedures used for revocation of a sex offender's supervised release.  The Supreme Court also found the case interesting because, as reported here, the Justices in 2018 accepted the petition for certiorari filed by the federal government.  The SCOTUSblog page on Haymond has links to all the briefing.

As reported in this prior post, I have a great student, Jim McGibbon, who is drafting a series of posts on the Haymond case.  Oral argument took place last month, and Jim was there for all the action.  Following up on his introductory post, and his second post inspired by the briefing in the case, he is working on a few posts on the Justices' likely votes informed by the argument.  Here is the start of his efforts:

Oral argument for United States v. Haymond is completed and the case has been submitted.  Amy Howe at SCOTUSblog observed after oral argument that the Court seems “poised to rule for [Haymond] in dispute over constitutionality of sex-offender law."  I predict that United States v. Haymond will be decided 6-3 in favor of Mr. Haymond.  This post will analyze the predicted majority and the next post will give a breakdown of the predicted dissent.

Locks

Justice Sotomayor

Justice Sotomayor may have more than tipped her hand when she opined during oral argument that to compare supervised release with parole is “to compare apples and oranges.”  If still not convinced, consider that she has stated in Alleyne v. United States, 570 U.S. 99 (2013), that “Apprendi [is] firmly rooted in our jurisprudence.”   Not so subtly did Justice Sotomayor lay the cards on the table, when she averred during oral argument that she had a “due process concern as well as a Sixth Amendment concern” with the procedures applicable in Haymond.  The government did little to propitiate Sotomayor at oral argument, and it appears safe to say that Sotomayor will not break rank from her past holdings.

Justice Thomas

Justice Thomas wrote the concurring opinion in Apprendi v. New Jersey.  He asserted that “if the legislature defines some core crime and then provides for increasing the punishment of that crime upon a finding of some aggravating fact of whatever sort, including the fact of a prior conviction — the core crime and the aggravating fact together constitute an aggravated crime.”  Here, the 10th Circuit convicted Haymond of a violation of 3583(k) and as a result, he was subsequently exposed to “greater and additional punishment” without a jury.  Even though Justice Thomas may not believe in stare decisis and even though he did not speak during oral argument, it would seem reasonable to assume that he believes that 3583(k) is a sentencing enhancement of a sort that is based on facts that need to be submitted to a jury and proved beyond a reasonable doubt. To boot, Justice Thomas was in the majority in Blakely v. Washington, 542 U.S. 296 (2004), and Alleyne v. United States, 133 S. Ct. 2151 (2013) both cases extending the reach of the procedural rights recognized in Apprendi.

Likely

Justice Ginsburg

Justice Ginsburg is a soldier of criminal procedural rights as she joined the ranks of the majority in Apprendi, Blakely, and Alleyne, which all affirmed Sixth Amendment and related procedural due process rights for the criminal defendant.  And in the Haymond oral argument, Justice Ginsburg may have revealed her vote when she intimated that the imposition of 3583(k) requires a “factual finding.”  She also voiced more concern over the remedy that the defendant was seeking than the merits of the argument, which although is not conclusive, is suggestive.  But, of course, Justice Ginsburg was the key swing vote that created the advisory guideline remedy in Booker, and see authored the Court opinion limiting the reach of the Sixth Amendment in Oregon v. Ice, 555 U.S. 160 (2009).

Justice Kagan

Justice Kagan seems quite likely to hold for the defendant.  She was among the majority in Alleyne, and during oral argument in Haymond she also resisted the government's efforts to compare supervised release to parole.  More generally, in a variety of setting for a variety of criminal defendants, Justice Kagan has been a fairly consistent voice and vote for expanding procedural rights.  It is hard to think of too many cases in which Justice Kagan has been less willing to recognize expanded constitutional rights than her colleagues. 

On the Bubble

Justice Gorsuch and Justice Kavanaugh

Justice Kavanaugh and Justice Gorsuch do not have extensive enough records as Supreme Court Justices regarding Sixth Amendment or other procedural due process rights to predict with any confidence how they will vote, which is why I have them as on the bubble.  Notably, last year Justice Gorsuch was a key swing vote siding with the more liberal justices in a case where the Court held that a federal statute defining a "crime of violence" was unconstitutionally vague. See Sessions v. Dimaya, 138 S. Ct. 1204 (2018). This case seems to suggest that Justice Gorsuch is not disinclined to strike down federal statutes even to benefit criminal offenders.  Notably, during oral argument, Justice Gorsuch also resisted the government’s contention that supervised release and parole were similar, and he did not question the defendant’s counsel at all during oral argument.

Justice Kavanaugh questioned both sides during the argument in Haymond, and he focused on the intricacies of the applicable statutes and a possible remedy.  Notably, while serving on the DC Circuit, in 2015 then-Judge Kavanuagh issued a notable statement in case involving a sentence enhanced on the basis of "acquitted conduct" (available here) that included the assertion that "[a]llowing judges to rely on acquitted or uncharged conduct to impose higher sentences than they otherwise would impose seems a dubious infringement of the rights to due process and a jury trial."   Given that statement, though Justice Kavanaugh could be a wild card here, I predict that he sides with the defendant.

Up next, the breakdown of the predicted dissenters.

Prior related posts:

• Student SCOTUS preview: starting a series of posts on United States v. Haymond 
• Student SCOTUS preview part two: noticing the parole push in United States v. Haymond 
• Will Haymond argument generate any haymaker questions as SCOTUS takes up supervised release?
• Haymond seemingly to become major Apprendi progeny altering federal supervised release revocations 
• Split Tenth Circuit panel finds mandatory five-year prison term for violation of supervised release itself violates Fifth and Sixth Amendments
• Supreme Court grants cert on Haymond from Tenth Circuit to address when Apprendi and Alleyne meet supervised release!! 

Student SCOTUS preview part two: noticing the parole push in United States v. Haymond

I noted here back in 2017 an interesting opinion in US v. Haymond where a Tenth Circuit panel declared unconstitutional the procedures used for revocation of a sex offender's supervised release.  The Supreme Court also obviously found the case interesting because, as reported here, the Justices in 2018 accepted the petition for certiorari filed by the federal government.  Oral argument is scheduled for two weeks from now, and a SCOTUSblog page on Haymond has links to all the briefing.

As reported in this prior post, I have a great student, Jim McGibbon, who is now in the midst of drafting a series of preview posts on the \Haymond case.  Following up on this introductory post, here is his second post inspired by the briefing in the case:

In 2010, Andre Haymond was convicted of possessing child pornography and sentenced to thirty-eight months of prison and ten years of supervised release.  In 2015, two years into his supervised release, Haymond's probation officers conducted a surprise search of his apartment and seized a password-protected cellphone.  Finding images of child pornography on the phone, the probation officers alleged Haymond violated his terms of supervised release.  The district court found by a preponderance of the evidence that Haymond had violated 18 U.S.C. § 2252 by possessing child pornography.  Based on this finding, the court revoked Haymond's supervised release and sentenced him to a mandatory five years in prison pursuant to § 3583(k) and an additional five years of supervised release.  On appeal, the Tenth Circuit held that § 3583(k) was unconstitutional in part because it unlawfully imposes heightened punishment using a preponderance of the evidence standard based on new conduct which contradicts the requirements of Apprendi and Alleyne.  And though parole was abolished in the federal system 35 years ago, its history and procedures lurk as this case now comes before the Supreme Court.

The Supreme Court in Morrissey v. Brewer stated that "revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocation." Morrisey v. Brewer, 408 U.S. 471, 480 (1972).  Commenting on the nature of revocation, the Supreme Court theorized that "[r]evocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special parole restrictions.” Id.  Regarding the right to due process, the Court held that "[w]hether any procedural protections are due depends on the extent to which an individual will be 'condemned to suffer grievous loss.'" Id. at 481.

Morrissey is still good law, as is Gagnon v. Scarpelli, 411 U.S. 778 (1973), which ruled similarly with respect to constitutionally required procedures for revoking probation.  Predictably then, the government briefing in US v. Haymond relies heavily on these cases, as Morrissey is mentioned 21 times and Gagnon is mentioned 14 times in its main brief. Concomitantly, the government’s brief cites to "parole" a whopping 60 times in hopes that the current Court finds that a person on supervised release is afforded only the same procedural protections as a parolee or a probationer as the Burger Court found in Morrissey and Gagnon.  As the government would have it, Morrissey and Gagnon control because Andre Haymond while on supervised release has "only "conditional liberty" and "individuals in respondent’s position are differently situated from those who can claim the full extent of the constitutional protections against a deprivation of their absolute liberty."  Brief of US at 38.  In contrast, Haymond's brief contains only five references to Morrissey.  He argues, unsurprisingly, Morrissey does not apply. 

There are reasons to believe the Court will not automatically find that the procedural protections due a person on supervised release are in lock step with the procedural protection due a person on parole.  Morrissey can be distinguished due to differences between the realities of traditional parole release and parole revocation and the realities of federal supervised release and its revocation.  As Haymond's brief stresses, in this case Congress through section 3583(k) required a new five-year mandatory prison sentence upon a particular finding as the basis for supervised release revocation.  Traditional parole processes included considerable discretion, and "parole revocation penalties could not exceed reimprisonment for the remainder of the original sentence."  Brief for Respondent at 26.  Moreover, continues Haymond, supervised release is not a form of "conditional liberty” because any “defendant who began a term of supervised release completed his term of imprisonment and there was no pending term that he could resume serving (as in the case of parole) or being serving (as in the case of probation)." Brief for Respondent at 27-28.

This case could be decided on whether the discretionary parole system of the past and the mandatory supervised release system of the present are similar enough to apply Morrissey v. Brewer in Haymond's case.  However, if the Court extends Morrissey v. Brewer to be applicable to the revocation of supervised release, then Haymond was not due "the full panoply of rights" and the application of § 3583(k) is probably constitutional — although the Court could still then find that the § 3583(k)'s distinctive mandatory five-year prison sentence is a "grievous loss" for a defendant that justifies greater procedural protections under the Due Process Clause of Fifth Amendment.  Or, if the Court declines to extend Morrissey v. Brewer to the revocation of supervised release, then perhaps the Court will look to the Sixth Amendment to find that jury trial rights are implicated and applicable under the Apprendi and Blakely and Alleyne line of cases.

This case is of interest not only because of its substantive issues, but also because it will present the first major opportunity for new Justices Gorsuch and Kavanaugh to weigh in on Apprendi and its progeny.  Justice Gorsuch replaced an Apprendi progenitor in Justice Scalia, while Justice Kavanaugh replaced an Apprendi objector in Justice Kennedy.  The next post will explore what they and other Justices might have to say in this case.

Prior related posts:

• Student SCOTUS preview: starting a series of posts on United States v. Haymond 
• Split Tenth Circuit panel finds mandatory five-year prison term for violation of supervised release itself violates Fifth and Sixth Amendments
• Supreme Court grants cert on Haymond from Tenth Circuit to address when Apprendi and Alleyne meet supervised release!! 

Purported SCOTUS originalists and liberals, showing yet again that they are faint-hearted, refuse to consider extending jury trial rights to restitution punishments

I noted in this post the array of per curiam rulings and statements that the Supreme Court released today to get 2019 off to an interesting criminal justice start.  Regular readers will not be surprised to learn that one particular decision, namely the decision to deny certiorari in Hester v. US, has me revved up.  Hester involves a claim that the Sixth Amendment jury trial right recognized in Apprendi, Blakely, Booker and Southern Union is applicable to cases in which findings are essential for the imposition of criminal restitution.  Dissenting from the denial of cert in a this lovely little opinion, Justice Gorsuch explains why this is only logical and is consistent with an originalist approach to the Constitution:

[T]he government argues that the Sixth Amendment doesn’t apply to restitution orders because the amount of restitution is dictated only by the extent of the victim’s loss and thus has no “statutory maximum.”  But the government’s argument misunderstands the teaching of our cases.  We’ve used the term “statutory maximum” to refer to the harshest sentence the law allows a court to impose based on facts a jury has found or the defendant has admitted.  Blakely v. Washington, 542 U.S. 296, 303 (2004).  In that sense, the statutory maximum for restitution is usually zero, because a court can’t award any restitution without finding additional facts about the victim’s loss.  And just as a jury must find any facts necessary to authorize a steeper prison sentence or fine, it would seem to follow that a jury must find any facts necessary to support a (nonzero) restitution order.

The government is not without a backup argument, but it appears to bear problems of its own.  The government suggests that the Sixth Amendment doesn’t apply to restitution orders because restitution isn’t a criminal penalty, only a civil remedy that “compensates victims for [their] economic losses.”  Brief in Opposition 8 (internal quotation marks omitted).  But the Sixth Amendment’s jury trial right expressly applies “[i]n all criminal prosecutions,” and the government concedes that “restitution is imposed as part of a defendant’s criminal conviction.”  Ibid.  Federal statutes, too, describe restitution as a “penalty” imposed on the defendant as part of his criminal sentence, as do our cases.  18 U.S.C. §§ 3663(a)(1)(A), 3663A(a)(1), 3572(d)(1); see Paroline v. United States, 572 U.S. 434, 456 (2014); Pasquantino v. United States, 544 U.S. 349, 365 (2005).  Besides, if restitution really fell beyond the reach of the Sixth Amendment’s protections in criminal prosecutions, we would then have to consider the Seventh Amendment and its independent protection of the right to a jury trial in civil cases.

If the government’s arguments appear less than convincing, maybe it’s because they’re difficult to reconcile with the Constitution’s original meaning.  The Sixth Amendment was understood as preserving the “‘historical role of the jury at common law.’” Southern Union, 567 U. S., at 353.  And as long ago as the time of Henry VIII, an English statute entitling victims to the restitution of stolen goods allowed courts to order the return only of those goods mentioned in the indictment and found stolen by a jury.  1 J. Chitty, Criminal Law 817–820 (2d ed. 1816); 1 M. Hale, Pleas of the Crown 545 (1736).  In America, too, courts held that in prosecutions for larceny, the jury usually had to find the value of the stolen property before restitution to the victim could be ordered.  See, e.g., Schoonover v. State, 17 Ohio St. 294 (1867); Jones v. State, 13 Ala. 153 (1848); State v. Somerville, 21 Me. 20 (1842); Commonwealth v. Smith, 1 Mass. 245 (1804).  See also Barta, Guarding the Rights of the Accused and Accuser: The Jury’s Role in Awarding Criminal Restitution Under the Sixth Amendment, 51 Am. Crim. L. Rev. 463, 472–476 (2014).  And it’s hard to see why the right to a jury trial should mean less to the people today than it did to those at the time of the Sixth and Seventh Amendments’ adoption.

Students of the Apprendi-Blakely line of cases have long known that there were not very good arguments to preclude the application of jury trial rights to criminal restitution awards, and those arguments got even weaker when the Supreme Court ruled in Southern Union that the jury trial right also applied to findings needed to impose criminal fines.  And notably, Southern Union was a 6-3 ruling with only the traditional Apprendi haters, Justices Alito, Breyer and Kennedy, in dissent.

So why does the jury trial still mean less to the people today facing restitution punishments than it did to those at the time of the Sixth and Seventh Amendments’ adoption?  The only answer I can provide is hinted in the title of post.  Supposed SCOTUS originalists like Chief Justice Roberts and Justices Thomas and Kavanaugh apparently do not want to here follow originalist principles to what would appear to be their logical conclusion.  Supposed SCOTUS liberals like Justices Ginsburg and Kagan do not want to here protect a certain type of right of a certain type of criminal defendant. (Justice Sotomayor, who never shrinks from following constitutional rights wherever she thinks they must extend, joined Justice Gorsuch's dissent here). 

When push comes to shove — or rather, when criminal defendants make a serious claim that a serious constitutional right should be given serious meaning — still too many justices seem to become faint-hearted in the application of their purported principles and commitments.  Drat. 

Student SCOTUS preview: starting a series of posts on United States v. Haymond

In this post last year I noted the interesting constitutional procedure opinion handed down by the Tenth Circuit in US v. Haymond, No. 16-5156 (10th Cir. Aug 31, 2017) (available here), and in this post last month I noted that the  Supreme Court accepted the petition for certiorari filed by the federal government in the case.  I am very lucky to have a great student, Jim McGibbon, who is very interested in the Haymond case, and he has agreed to draft a series of preview posts on the case.  Here is this first one:

The Supreme Court, on October 26, 2018, granted certiorari in United States v. Haymond.  The case concerns the constitutionality of a federal statutory provision which imposes a mandatory minimum prison sentence for federally-convicted sex offenders who commit another sexually-related offense while serving a term of supervised release.

A federal district court, in 2010, convicted Haymond of possessing child pornography and sentenced him to thirty-eight months of prison and ten years of supervised release.  A sentencing judge is authorized to impose a supervised release sentence based on 18 U.S.C. § 3583(a), a provision of the Sentencing Reform Act of 1984.   Supervised release has long been considered, in the words of the Tenth Circuit, “part of the sentence” for the original crime as are the various terms and conditions that an offender must comply with during the period of supervised release.  Violation of the conditions of supervised release sometimes can result in revocation and additional prison time, but the Supreme Court in Johnson v. United States, 529 U.S. 694 (2000), described “postrevocation sanctions as part of the penalty for the initial offense.”  Id. at 700.

On April 24, 2013, Haymond was released from prison, and he began serving his 10-year term of supervised release.  Two years into his supervised release, Haymond’s probation officers conducted a surprise search of Haymond’s apartment.  The officers seized a password-protected cellphone and a personal computer belonging to Haymond, as well as other computers belonging to a roommate or in the apartment.  Finding images of child pornography on the phone, the probation officers alleged Haymond violated his terms of supervised release on various grounds. 

Haymond was subject to a supervised release revocation hearing before a district judge, a unique hearing generally considered comparable to parole revocation in which the "full panoply of rights due a defendant ... does not apply.”  Morrisey v. Brewer, 408 U.S. 471, 480 (1972).  The district court found by a preponderance of the evidence that Haymond had violated 18 U.S.C. § 2252 by possessing child pornography.  Based on this finding, the court revoked Haymond’s supervised release and sentenced him to a mandatory five years in prison pursuant to § 3583(k) and an additional five years of supervised release.  The relevant portion of 18 U.S.C. § 3583(k) provides that sex offenders on supervised release who commit “any criminal offense under chapter 109A, 110, or 117, or section 1201 or 1591, for which imprisonment for a term longer than 1 year can be imposed, the court shall revoke the term of supervised release and require the defendant to serve a term of imprisonment … not less than 5 years.”

Haymond appealed to the Tenth Circuit Court of Appeals, arguing that “(1) that the presence of images in his phone cache was insufficient to show by a preponderance of the evidence that he knowingly possessed child pornography, and (2) that 18 U.S.C. § 3583(k) is unconstitutional because it deprives him of due process.”  The Tenth Circuit affirmed the district court’s finding of child pornography possession and the revocation of Haymond’s supervised release, but vacated the mandatory sentence and remanded the case back to the District Court for resentencing.

A split panel of Tenth Circuit held that 3583(k) was unconstitutional for two reasons.  The majority first asserted that the statute impermissibly strips the sentencing judge of discretion established under Booker and its progeny because it imposes a mandatory minimum sentence.  The court also asserted that it unlawfully imposes heightened punishment using  a preponderance of the evidence standard based on new conduct which contradicts the requirements of Apprendi and Alleyne. 

The government filed a petition for a writ of certiorari on June 15, 2018 posing this question for review:

Whether the court of appeals erred in holding “unconstitutional and unenforceable” the portions of 18 U.S.C. 3583(k) that required the district court to revoke respondent’s ten-year term of supervised release, and to impose five years of reimprisonment, following its finding by a preponderance of the evidence that respondent violated the conditions of his release by knowingly possessing child pornography. 

With certiorari granted last month and the briefs forthcoming, this case poses the potential to impact not only the operation of federal supervised release revocation, but also the future of Apprendi rights. 

In coming posts, the briefs filed by the parties and potential amici will be discussed.

Prior related posts:

• Split Tenth Circuit panel finds mandatory five-year prison term for violation of supervised release itself violates Fifth and Sixth Amendments
• Supreme Court grants cert on Haymond from Tenth Circuit to address when Apprendi and Alleyne meet supervised release!! 

Usual Justices make their usual death penalty points in statements accompanying Florida capital case cert denials

In this post last week, I noted that the Supreme Court had relisted a slew of older Florida death penalty cases in which a death sentence had been imposed using procedures that the Supreme Court in the 2016 Hurst decision said violated the Sixth Amendment's requirement that a jury rather than a judge must find all facts necessary to sentence a defendant to death.  This morning, via this new order list, the Supreme Court appears to have denied cert in all of these Florida cases, and three Justices with well-earned reputations for having a lot to say in capital cases all had something to say about this decision through statements in the case of Reynolds v. Florida.

Justice Breyer authored a four-page statement regarding the denial of cert that sets the tone starting this way:

This case, along with 83 others in which the Court has denied certiorari in recent weeks, asks us to decide whether the Florida Supreme Court erred in its application of this Court’s decision in Hurst v. Florida, 577 U. S. ___ (2016).  In Hurst, this Court concluded that Florida’s death penalty scheme violated the Constitution because it required a judge rather than a jury to find the aggravating circumstances necessary to impose a death sentence.  The Florida Supreme Court now applies Hurst retroactively to capital defendants whose sentences became final after this Court’s earlier decision in Ring v. Arizona, 536 U. S. 584 (2002), which similarly held that the death penalty scheme of a different State, Arizona, violated the Constitution because it required a judge rather than a jury to find the aggravating circumstances necessary to impose a death sentence.  The Florida Supreme Court has declined, however, to apply Hurst retroactively to capital defendants whose sentences became final before Ring.  Hitchcock v. State, 226 So. 3d 216, 217 (2017).  As a result, capital defendants whose sentences became final before 2002 cannot prevail on a “Hurst-is-retroactive” claim.

Many of the Florida death penalty cases in which we have denied certiorari in recent weeks involve — directly or indirectly — three important issues regarding the death penalty as it is currently administered.

Folks who follow the Supreme Court's modern capital punishment discussions can probably guess what Justice Breyer considers the "three important issues" raised by these Florida cases. Similarly, SCOTUS followers likely can also imagine what Justice Thomas had to say when concurring in the denial of cert in Reynolds.  His opinion runs five pages and here are two key paragraphs:

JUSTICE BREYER worries that the jurors here “might not have made a ‘community-based judgment’ that a death sentence was ‘proper retribution’ had they known” of his concerns with the death penalty. Ante, at 4 (statement respecting denial of certiorari). In light of petitioner’s actions, I have no such worry, and I write separately to alleviate JUSTICE BREYER’s concerns....

JUSTICE BREYER’s final (and actual) concern is with the “‘death penalty itself.’” Ante, at 4. As I have elsewhere explained, “it is clear that the Eighth Amendment does not prohibit the death penalty.” Baze v. Rees, 553 U. S 35, 94 (2008) (opinion concurring in judgment); see Glossip, supra, at ___–___, and n. 1 (THOMAS, J., concurring) (slip op., at 1–2, and n. 1). The only thing “cruel and unusual” in this case was petitioner’s brutal murder of three innocent victims.

Last but certainly not least, Justice Sotomayor needs seven pages to explain why she dissents from the denial of certiorari, and here opinion starts this way:

Today, this Court denies the petitions of seven capital defendants, each of whom was sentenced to death under a capital sentencing scheme that this Court has since declared unconstitutional.  The Florida Supreme Court has left the petitioners’ death sentences undisturbed, reasoning that any sentencing error in their cases was harmless.  Petitioners challenge the Florida Supreme Court’s analysis because it treats the fact of unanimous jury recommendations in their cases as highly significant, or legally dispositive, even though those juries were told repeatedly that their verdicts were merely advisory.  I have dissented before from this Court’s failure to intervene on this issue.  Petitioners’ constitutional claim is substantial and affects numerous capital defendants.  The consequence of error in these cases is too severe to leave petitioners’ challenges unanswered, and I therefore would grant the petitions.

Supreme Court grants cert on Haymond from Tenth Circuit to address when Apprendi and Alleyne meet supervised release!!

I am excited to report that the Supreme Court this afternoon, via this order list, added an interesting sentencing case to its docket by granting cert in United States v. Haymond, 17-1672, a case from the Tenth Circuit in which the defendant prevailed on the claim that the procedures used to sentence him following his supervised release violation was unconstitutional.  The Tenth Circuit opinion below in Haymond is available at this link, and the federal government's cert petition posed this "Question Presented":

Whether the court of appeals erred in holding “unconstitutional and unenforceable” the portions of 18 U.S.C. 3583(k) that required the district court to revoke respondent’s ten-year term of supervised release, and to impose five years of reimprisonment, following its finding by a preponderance of the evidence that respondent violated the conditions of his release by knowingly possessing child pornography. 

Seeking (unsuccessfully) to avoid a cert grant, the defendant's brief in opposition to cert framed the issue of the case this way: 

Following his conviction for possession of child pornography, a Class C felony that carried a statutory sentencing range of zero to ten years, a district court judge in a revocation hearing specifically found by only a preponderance of the evidence that Andre Haymond had violated the terms of his supervised release by committing a “second sex offense” as set forth in 18 U.S.C. 3583(k).  The statute required the district court to impose a sentence of not less than five years up to life in prison for commission of the new crime, rather than the zero to two-year statutory range ordinarily applicable for revocation in Class C felony cases.  Did the enhanced sentencing range carrying a mandatory minimum sentence in the revocation proceeding violate the Court’s longstanding jurisprudence guaranteeing a defendant charged with a serious criminal offense to a right to a jury trial under the Fifth and Sixth Amendments?

Given that there are now only two members of the Supreme Court who are generally hostile to Apprendi rights under the Fifth and Sixth Amendment (Justices Alito and Breyer), I do not think it is a given that this grant of cert means that the Justices are eager to reverse the ruling below. But we really do not know just how far any of the other Justices, and especially the new guys Gorsuch and Kavanaugh, are willing to take the Fifth and Sixth Amendment in the sentencing universe, and so I am disinclined to make any predictions on any votes at this point (save for expected Justice Alito to be his usual vote against a criminal defendant).

An (overly) optimistic account of how new Justices could disrupt federal sentencing based on uncharged and acquitted conduct

In this post earlier this month, I suggested that Justice Kennedy might be replaced by a new Justice more inclined to afford criminal defendants stronger Sixth Amendment rights under Apprendi and Blakely.  And this subsequent post highlighted that new SCOTUS-nominee Judge Brett Kavanaugh authored an interesting opinion a few years ago that expressed concern about the use acquitted conduct to increase sentences.  Against that backdrop, I was interested to see this new Law360 commentary authored by Alan Ellis and Mark Allenbaugh headlined "Sentencing May Change With 2 Kennedy Clerks On High Court." Here are excerpts from the start and end of the commentary:

Shortly before his confirmation just over a year ago, we wrote about what a now-Justice Neil Gorsuch could mean for federal sentencing.  In particular, we reviewed his Tenth Circuit opinion in United States v. Sabillon-Umana, wherein then-Judge Gorsuch, a former clerk for now-retiring Justice Anthony Kennedy, questioned the constitutionality of judicial fact-finding at federal sentencing, as opposed to fact-finding by a jury.  Known as “relevant conduct,” judge-found facts — which often include uncharged and even acquitted conduct — drive federal sentencings, often increasing terms of imprisonment by years and even decades.  As it turns out, another former Kennedy clerk, Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit — who recently was nominated by President Donald Trump to take the retiring justice’s seat on the court — also shares Justice Gorsuch’s concern.  Accordingly, for the reasons discussed below, should Judge Kavanaugh be confirmed, we believe the “Kennedy clerks” will likely lead the court to finally rein in relevant conduct by holding unconstitutional the use of uncharged and acquitted conduct to enhance federal sentences....

Should Judge Kavanaugh be confirmed, we believe it quite likely that, based on his prior jurisprudence, the current manner in which relevant conduct or at least acquitted conduct is used to enhance sentences will soon be determined to be unconstitutional.

Though I certainly hope that new Justices could usher in a big changes to the modern federal sentencing system, I do not share these authors' view that such changes are "quite likely." In particular, finding unconstitutional any use of "uncharged" conduct at sentencing would be a real sea-change for lots of sentencing systems and practice, and I think a number of Justices would be hesitant to take Sixth Amendment doctrines this far.  But I still like this constitutional optimism even if I do not fully share it.

A few prior related posts:

• Justice Anthony Kennedy has announced his retirement ... which means a lot for the future of sentencing jurisprudence and so much more 
• Might Justice Kennedy's retirement lead to defendants having stronger Sixth Amendment rights under Apprendi and Blakely? 
• Quick and helpful look at some of Judge Brett Kavanaugh's criminal justice work
• Could Judge Brett Kavanaugh, as a SCOTUS Justice, encourage his colleagues to take up acquitted conduct sentencing? 

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., Booker, Cunningham, 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:

• Justice Anthony Kennedy has announced his retirement ... which means a lot for the future of sentencing jurisprudence and so much more 
• With Justice Kennedy now retiring and precedents being reversed, is it time for marijuana advocates to urge SCOTUS to reconsider Raich?
• A quick look at how Justice Kennedy's retirement might impact capital punishment jurisdrudence
• With Justice Kennedy retiring, overturning Harmelin should become a focal point for criminal justice reformers

"Sixth Amendment Sentencing after Hurst"

The title of this post is the title of this notable new article authored by Carissa Byrne Hessick and William Berry available via SSRN. Here is the abstract:

The Supreme Court’s 2016 decision in Hurst v. Florida, which struck down Florida’s capital sentencing scheme, altered the Court’s Sixth Amendment sentencing doctrine. That doctrine has undergone several important changes since it was first recognized.  At times the doctrine has expanded—invalidating sentencing practices across the country — and at times it has contracted — allowing restrictions on judicial sentencing discretion based on findings that are not submitted to a jury. Hurst represents another expansion of the doctrine.  Although the precise scope of the decision is unclear, the most sensible reading of Hurst suggests that any finding required before a judge may impose a higher sentence must be submitted to a jury and proven beyond a reasonable doubt.  This reading invalidates several state capital sentencing systems and several non-capital systems, and it would require dramatic changes to federal sentencing as well.

Silk Road creator Ross Ulbricht raises notable sentencing issue in SCOTUS cert petition

As detailed in this new Reason piece, headlined "Ross Ulbricht Files Appeal to the Supreme Court on His Life Sentence Without Parole: Silk Road founder's appeal stresses the dangerous Fourth and Sixth Amendment implications of his prosecution and sentencing," a notable federal criminal defendant is bringing some notable issues to the Supreme Court via a new cert petition. The full cert petition is available at this link, and here are the petition's seemingly simple questions presented:

1. Whether the warrantless seizure of an individual’s Internet traffic information without probable cause violates the Fourth Amendment.

2. Whether the Sixth Amendment permits judges to find the facts necessary to support an otherwise unreasonable sentence.

SCOTUS gurus know that the first question intersects with issues in the pending Carpenter case, and that fact alone might make this high-profile case a poor vehicle for getting to the post-Booker sentencing issue also raised. The petition, notably, suggests "It would be most efficient for the Court to resolve the question presented in this case now, while it is considering a related question in Carpenter."

SCOTUS gurus know that the second question is one that has been repeatedly avoided by SCOTUS since its Booker-Rita rulings wherein the late Justice Scalia suggested that, even within the advisory guideline system created by Booker, there must be some Sixth Amendment limits on findings by judges to justify lengthy prison sentences.  Despite pushing the matter, Justice Scalia could not garner enough votes for this Sixth Amendment issue to be addressed by the full Court on the merits before his untimely demise.  I am not really expecting a different reality now, although Ulbricht's lawyers astutely notes in his cert petition that Justice Scalia's replacement has previously suggested concerns on this front:

Shortly after Justice Scalia’s opinion in Jones, then-Judge Gorsuch similarly observed that “[i]t is far from certain whether the Constitution allows” a judge to increase a defendant’s sentence within the statutorily authorized range “based on facts the judge finds without the aid of a jury or the defendant’s consent.” United States v. Sabillon-Umana, 772 F.3d 1328, 1331 (10th Cir. 2014) (citing Jones).  Three years later, however, that question re- mains unanswered by the Court, despite intervening opportunities to address it.

A few prior related posts on sentencing and appeals of Ross Ulbricht:

• You be the judge: what federal sentence for Silk Road creator Ross Ulbricht?
• Notable developments in prelude to federal sentencing for Silk Road creator Ross Ulbricht
• Debate over harms of online drug market now at center of upcoming sentencing of Silk Road creator Ross Ulbricht
• "Before sentencing, Ulbricht begs for leniency: 'please leave me my old age'"
• Feds seeking LWOP sentence for Silk Road creator Ross Ulbricht
• Second Circuit affirms convictions and LWOP sentence for Silk Road creator Ross Ulbricht

Making a friendly pitch for SCOTUS to consider constitutional limits on extreme judicial sentencing increase based on uncharged homicide

Regular readers know that I have long been troubled by significant sentence increases by judges based on so-called acquitted conduct, and that I have filed a number of federal appellate briefs articulating my concerns. Building on some of that prior work, I recently had a chance to work on an amicus brief in support of certiorari in Hebert v. US, a case out of the Fifth Circuit involving an extreme sentence increase based on uncharged conduct. The full amicus (which the fine folks at the Jones Day in DC made so fine) can be downloaded below, and here are excerpts from its start providing context and key arguments:

It is difficult to imagine a starker violation of the Sixth Amendment and due process than what transpired below. Mr. Hebert pleaded guilty to a $16,000 fraud that carried a guidelines range topping out at 5 years.  After persuading Mr. Hebert to admit responsibility for his fraud and accept punishment for that crime, the Government ambushed him at sentencing by asserting that he had committed an intentional murder along with the fraud to which he had confessed. The Government then asked the district court to find it was more likely than not that Mr. Hebert committed this un-charged, non-admitted, never-convicted, non-federal crime. Then, on the basis of that judicial determination, the district court gave Mr. Hebert a 92-year sentence — a sentence the Government has conceded and the Fifth Circuit recognized “would have been substantively unreasonable under the post-Booker sentencing regime absent a judicial finding of murder,” Pet.App.22a — again, a crime with which Mr. Hebert has never even been charged.

Because Mr. Hebert has never been charged with — much less convicted of — murder, he remains entirely innocent of that crime. If the Government wishes to convict Mr. Hebert of murder, it is welcome to try.  But what it cannot do is use Mr. Hebert’s confession to lesser crimes as the springboard for de facto convicting him of a far more serious crime in a judicial proceeding with no jury, the civil standard of proof, and none of the criminal justice system’s fundamental rules and procedures....

There are at least two constitutional provisions that, under this Court’s well-established jurisprudence, forbid this inverted regime.  First, this Court has made clear that a criminal defendant has a Sixth Amendment “right to have a jury find the facts behind his punishment.” Hurst v. Florida, 136 S. Ct. 616, 621 (2016).  That right reflects the vital role of the jury as the “circuitbreaker in the State’s machinery of justice” — a role that cannot be “relegated to making a determination that the defendant at some point did something wrong [as] a mere preliminary to a judicial inquisition into the facts of the crime the State actually seeks to punish.” Blakely v. Washington, 542 U.S. 296, 306–07 (2004).  The Sixth Amendment right to a jury trial is a constitutional protection of “surpassing importance,” Apprendi, 530 U.S. at 476, yet the decision below makes a mockery of it....

Second, this Court has long recognized that due process forbids grossly unfair procedures when a person’s liberty is at stake. Specifically, this Court has indicated that (1) judges are sometimes limited from imposing distinct new punishments based on “a new finding of fact that was not an ingredient of the offense charged,” Specht v. Patterson, 386 U.S. 605, 608 (1967) (citation omitted); (2) the “safeguards of due process” in criminal cases are “concerned with substance rather than [any] kind of formalism,” Mullaney v. Wilbur, 421 U.S. 684, 698–99 (1975); and (3) constitutional concerns are raised whenever sentencing findings become “a tail which wags the dog of the substantive offense,” or when the government restructures criminal prosecutions “to ‘evade’ the commands” of the Constitution. McMillan v. Pennsylvania, 477 U.S. 79, 88–89 (1986).

The simple principle that unifies these decisions is fatal to the legal rule embraced below: Due process forbids prosecutors from manipulating the criminal justice system to evade its core protections.  Applied here, that principle barred prosecutors from waylaying Mr. Hebert at sentencing with allegations of a far more serious crime for which he has never been indicted or convicted — allegations that depend, moreover, on evidence which the prosecutors were apparently unwilling to subject to the crucible of a criminal trial or test against the burden of proof they must carry there.  Due process demands more.

Download Berman Amicus in Support of Cert in Hebert

New speech by Justice John Paul Stevens reflects on Justice Antonin Scalia and the Court's constitutional work before and after Apprendi

A helpful reader alerted me to this notable new speech given today by Justice John Paul Stevens at the Washington University School of Law. The speech is titled "Some Thoughts about a Former Colleague," and much of the discussion is a review of the McMillan, Watts, Apprendi, Harris, Blakely, Alleyne and Hurst decisions from the Supreme Court over the last three decades.  The speech also notes disagreements between Justices Stevens and Scalia in the Second and Eighth Amendment contexts, and concludes with some comments about original intent as a mode of constitutional interpretations.

My quick review of the speech did not lead me to find any surprising revelations, but it did lead me to conclude that Justice Stevens is pleased that, in his words, a "consensus [] has developed around Apprendi's rule since it was first announced in a 5-4 decision 16 years ago."  I also found quite notable that the Booker decision did not get any mention in the discussion.

Is it reasonable to ask Santa Claus to bring a certiorari grant on acquitted conduct sentencing?

The silly question in the title of this post is prompted by the terrific Christmas-week opinions authored by DC Circuit Judges Kavanaugh and Millett in concurrences to the denial of en banc rehearing in US v. Bell, No. 08-3037 (DC Cir. Dec. 22, 2015) (available here). Regular readers know that I have long been troubled by the use of so-called acquitted conduct in the calculations of an applicable guideline range, both opinions in Bell spotlight well some of the reasons why.

Interestingly, Judge Kavanaugh suggests he thinks Congress or the Sentencing Commission may need to act in order now to address problems with acquitted conduct. But Judge Millett's opinion in Bell provides, in the space of eight pages, a thoughtful and thorough accounting of why the Supreme Court should consider anew the constitutional validity of sentences enhanced dramatically on the basis of allegations that a jury considered insufficient for a lawful conviction.  I will provide here an exceprt from the start and end of Judge Millett's opinion:

This case is one in an “unbroken string of cases” encroaching on the Sixth Amendment right to a trial by jury, Jones v. United States, 135 S. Ct. 8, 9 (2014) (Scalia, J., joined by Thomas & Ginsburg, JJ., dissenting from the denial of certiorari).  The government indicted Gregory Bell for a “mélange” of crimes, “including conspiracy and crack distribution.”  Panel Op. 2.  Bell exercised his constitutional right to a trial by jury on those charges, and the jury acquitted Bell of ten of the thirteen charges against him, “including all narcotics and racketeering conspiracy charges.”  Panel Op. 3.  The jury convicted Bell of only three crack cocaine distribution charges that together added up to just 5 grams.

Because Bell had no significant criminal history and the amount of cocaine was relatively small, Bell’s Sentencing Guidelines range for the offense of conviction would have been 51 to 63 months.  At sentencing, however, the district court found that Bell had engaged in the very cocaine conspiracy of which the jury had acquitted him, and sentenced Bell to 192 months in prison — a sentence that was over 300% above the top of the Guidelines range for the crimes of which he was actually convicted.

In a constitutional system that relies upon the jury as the “great bulwark of [our] civil and political liberties,” Apprendi v. New Jersey, 530 U.S. 466, 477 (2000) (quoting 2 J. Story, Commentaries on the Constitution of the United States 540– 541 (4th ed. 1873)), it is hard to describe Bell’s sentence as anything other than a “perverse result,” United States v. Watts, 519 U.S. 148, 164 (1997) (Stevens, J., dissenting).  The foundational role of the jury is to stand as a neutral arbiter between the defendant and a government bent on depriving him of his liberty.  But when the central justification the government offers for such an extraordinary increase in the length of imprisonment is the very conduct for which the jury acquitted the defendant, that liberty-protecting bulwark becomes little more than a speed bump at sentencing....

While I am deeply concerned about the use of acquitted conduct in this case, I concur in the denial of rehearing en banc.  That is because only the Supreme Court can resolve the contradictions in the current state of the law, by either “put[ting] an end to the unbroken string of cases disregarding the Sixth Amendment” or “eliminat[ing] the Sixth Amendment difficulty by acknowledging that all sentences below the statutory maximum are substantively reasonable.”  Jones, 135 S. Ct. at 9 (Scalia, J., joined by Thomas and Ginsburg, JJ., dissenting from denial of certiorari).  Though I am not certain Bell’s argument is directly foreclosed by Supreme Court precedent, my colleagues on the panel have done their best to navigate existing precedent, recognizing that the Supreme Court has thus far declined to address this issue.  Going en banc would only delay affording the Supreme Court another opportunity to take up this important, frequently recurring, and troubling contradiction in sentencing law.

Despite seemingly having a number of sound vehicles for reconsidering Watts in the wake of Apprendi, Blakely, Booker et al., the Supreme Court has persistently dodged this acquitted conduct issue for well over a decade. Thus, we may need some of the holiday magic of Old Saint Nick in order to finally get the Justices to give needed attention to "this important, frequently recurring, and troubling contradiction in sentencing law."

Does the Sixth or Eighth Amendment matter more for jury's role in capital punishment?

The question in the title of this post is the primary uncertainty likely to impact Supreme Court debate over Florida's capital punishment system during tomorrow's scheduled oral argument in Hurst v. Florida.  Helpfully, Lyle Denniston has this lengthy preview post at SCOTUSblog titled "Defining the jury's role on death penalty," and here are excerpts:

For years, the Supreme Court has been engaged in an energetic effort to enhance the role of the jury in criminal courts. No part of that has been more actively pursued than deepening the jury’s involvement in sentencing — a part of the process long dominated by trial judges. A new case from Florida, set for argument at 11 a.m. on Tuesday, provides a new test.

Florida is the last state to hold out against a common requirement that jurors must be unanimous in both specifying why a convicted individual is eligible for a death sentence and recommending a sentence. Juries in Florida death penalty cases have only an advisory role to begin with, and even that influence on the judge is potentially lessened by the lack of unanimity and by the judge’s authority to make the key decisions anyway.

The Court is examining the case of a brutal slaying at a Popeye’s fast-food restaurant in Pensacola, Fla. (Hurst v. Florida), to determine how far a state may go to assign the important decisions on death sentencing to the judge. The Justices attempted to curb that role, and give more of it to the jury, in a 2002 decision but the Florida Supreme Court has essentially exempted the state’s capital punishment process from that ruling.

In Ring v. Arizona thirteen years ago, the Supreme Court ruled that a judge may not make the factual findings about “aggravating factors” — the seriousness of the crime that can make an individual eligible to be sentenced to death — because that role under the Sixth Amendment belongs to the jury. The Court has said repeatedly that, if a potential sentence is to be made more severe, the enhancement must be based upon the jury’s findings.

The Court, however, has never ruled that juries must be used in the sentencing phases of a case in which a death sentence is a possibility, and it has never ruled that a jury recommendation of a death sentence must be by a unanimous vote. It has allowed guilty verdicts by less than unanimous votes in cases involving lesser crimes. The case set for a hearing next Tuesday could provide new interpretations on both of those issues....

Florida law splits up the roles on death sentencing between the jury and the judge. The jury’s advisory role is to ultimately recommend a sentence to the judge. To do that, the jury weighs aggravating and mitigating factors and decides whether to recommend a death sentence. It can make that final recommendation on a split vote — it must be at least seven to five, as it was in Hurst’s case. But there is no need for even a majority of jurors to agree on even one of the aggravating factors the jurors as a group had apparently indicated did exist.

The sentencing duty then shifts to the judge, who does the same weighing process of the two kinds of factors; in doing so, the judge is not bound by what the jury concluded. The judge then decides for or against a death sentence, again with no duty to follow the jury’s recommendation.

The Florida Supreme Court, upholding that process as used in Hurst’s case, found no constitutional problem with the role of either the jury or the judge. The state court divided four to three, with the dissenting justices arguing that the Florida approach violates both the Sixth and Eighth Amendments and deviates from the Supreme Court’s ruling in Ring v. Arizona.

Hurst’s lawyers took the case on to the Supreme Court, raising two multi-faceted questions, with most of them focusing on the split role of judge and jury. The Court granted review in March, rephrasing the issue to be whether the Florida scheme violates either the Sixth Amendment or the Eighth Amendment “in light of this Court’s decision in Ring v. Arizona.” The order did not specify whether it would consider Hurst’s argument that he also had a claim of mishandling in his trial of a mental disability claim, but the Court did not appear to have accepted that for review and it has dropped out of the case.

Hurst’s brief on the merits largely separates the arguments between the Sixth Amendment, claiming that provision is violated by the jury’s limited role in finding whether Hurst was eligible for a death sentence, and the Eighth Amendment, claiming that provision is violated by allowing the judge to impose the sentence after a split verdict by the jury. However, he also levels a separate Sixth Amendment challenge to the judge’s role in imposing a death penalty....

Florida’s brief on the merits noted that the Supreme Court has examined its capital punishment scheme at least four times before and has not found it to be flawed under the Constitution. The state also insisted that Hurst’s lawyers had exaggerated what is required under Ring v. Arizona. That decision, it contended, only mandates a role for the jury in the death-eligibility analysis, and does not insist that it have a role in the actual selection of the sentence to be imposed.

As fans of Ring v. Arizona should recall, a few of the Justices still on the Court now considered these issues to be primarily of Sixth Amendment concern (Justices Scalia, Thomas and Ginsburg), whereas some other of the Justices still on the Court viewed these issues primarily from an Eighth Amendment perspective (Justices Kennedy and Breyer). And, notably, the four newer Justices have had a lot of distinct (and differing) things to say about both the Sixth and Eighth Amendments in recent years. How all this will add up to a majority ruling in Hurst remains to be seen, but I will suggest that anyone sentenced to death in Florida after a non-unanimous jury recommendation already ought to be getting ready to file a new habeas petition as soon as we get a ruling in Hurst.

"From Jones to Jones: Fifteen Years of Incoherence in the Constitutional Law of Sentencing Factfinding"

The title of this post is the title of this notable new paper now on SSRN authored by Benjamin Priester. Here is the abstract:

With tens of thousands of persons sentenced every year in the United States, the contemporary American criminal justice system places undeniable importance upon the constitutional constraints governing the scope of the permissible and impermissible exercises of factfinding authority by sentencing judges in the course of determining the specific punishment to be imposed upon an individual convicted of a criminal offense.  Yet for the past fifteen years the United States Supreme Court has failed to provide doctrinal stability and consistency to this crucial area of constitutional law.

Even the most recent decisions, such as Alleyne v. United States (2013) regarding mandatory minimum sentencing provisions, have generated only more unpredictability in the doctrine and more disagreements among the justices’ viewpoints.  The path to an enduring doctrinal solution is not readily evident, and the Court’s unwillingness to reach consensus leaves the constitutional law of sentencing factfinding trapped in an ongoing cycle of unpredictability and doctrinal incoherence.

"Why Did the Supreme Court Sidestep Sentencing Dispute?"

The title of this post is not merely the question I had for a few Justices after the denial of cert last week in Jones v. US (lamented here and here), it is also the headline of this new National Law Journal article about this decision authored by Tony Mauro.  Here are excerpts:

The U.S. Supreme Court's ­refusal to add a Washington drug case to its docket would not ordinarily get much notice.  But when the court did just that on Oct. 14, it drew wide criticism for missing an opportunity to resolve a long-­running dispute over judicial discretion in ­sentencing.

The court denied certiorari in Jones v. United States, which asked the court to rule that in deciding on a sentence, federal judges should not be able to take into consideration conduct for which the defendant was acquitted.  In the Jones case, the trial judge significantly increased the sentences of three defendants by factoring in drug conspiracy charges that the jury had rejected.

"It is really hard to understand why the court ruled as it did," said University of Illinois College of Law professor Margareth Etienne, a sentencing expert. "It goes against everything the Supreme Court has said for the last 15 years."

Cato Institute senior fellow Ilya Shapiro said, "It's not just high-­profile culture-war issues like same-sex ­marriage and the right to bear arms that the Supreme Court is avoiding like the plague."  Shapiro said the court's action was "another opportunity lost by the Court, another responsibility shirked.  "The issue has been raised in numerous lower court decisions, and in a 2007 Supreme Court case, several justices said it should be taken up if the right case came along.  As recently as Oct. 1, the U.S. Court of Appeals for the First Circuit mentioned the Jones case in a ruling that criticized the "questionable ­practice" of basing sentences on uncharged or unproven offenses.

An unusual lineup of three justices — Antonin Scalia, Clarence Thomas and Ruth Bader Ginsburg — took the rare step of dissenting from the denial of review.  "This has gone on long enough," Scalia wrote. "The present petition presents the non-hypothetical case the court claimed to have been waiting for."

In the case the court denied, a District of Columbia jury found Antwuan Ball, Desmond Thurston and Joseph Jones guilty in 2007 of selling between two and 11 grams of cocaine, relatively small amounts. They were acquitted on racketeering and other charges that they were part of an extensive narcotics conspiracy. Yet, when U.S. District Judge Richard Roberts sentenced the three, he said he "saw clear evidence of a drug conspiracy," and sentenced Ball, Thurston and Jones to 18, 16 and 15 years in prison, respectively — four times higher than the highest sentences given for others who sold similar amounts of cocaine, according to filings with the Supreme Court....

Stephen Leckar, of counsel to Kalbian Hagerty in Washington, who represented the defendants in the petition denied last week, said he was disappointed that the petition fell "one vote short" of being granted certiorari. The fact that conservatives Scalia and Thomas dissented — along with liberal Ginsburg — "ought to be a fire bell in the night" signaling that the issue should be resolved, Leckar said....

The University of Illinois' Etienne speculated that some justices may have felt the facts of the Jones case were "too good" to be a vehicle for making a broad pronouncement on the issue. She explained that Jones involved a judge ignoring an actual acquittal by a jury, whereas a more common scenario is a judge basing an enhanced sentence on conduct that may or may not have been charged or was not part of a plea agreement. Ruling on a case involving an actual acquittal might leave the broader issue unresolved. "It is going to take a while" for the court to revisit the issue, Etienne added. "Until it does, the old adage that one is 'innocent until proven guilty' will continue to have little meaning."

Previous related posts on the Jones case:

• Extended examination of ugliness of acquitted conduct enhancement
• Latest chapter in notable federal acquitted conduct case from DC
• "When Acquitted Doesn't Mean Acquitted"
• DC Circuit gives disconcertingly short-shrift to Antwuan Ball's many significant sentencing claims
• Notable follow-up thoughts on acquitted conduct and the sentencing of Antwuan Ball
• Rooting for acquitted conduct petition grant from SCOTUS long conference
• Trying not to get too excited about SCOTUS relist in Jones/Ball acquitted conduct case
• Three Justices dissent from denial of certiorari in Jones/Ball acquitted conduct case
•  Refusing to take up acquitted punishment, passive virtues, SCOTUS reputation, and cert-denial-deal speculation

Three Justices dissent from denial of certiorari in Jones/Ball acquitted conduct case

I am very disappointed to have to report that this morning the Supreme Court denied certiorari review in the notable federal drug sentencing case from DC involving Antwan Ball and his co-defendants concerning judicial fact-finding to increase a federal guideline sentence contrary to a jury acquittal.  As I noted in this post last week, Jones v. US, No. 13-10026, was relisted by the Justices after their "long conference."  Now today's SCOTUS order list has at the very end the news that cert has been denied in Jones v. US, No. 13-10026, with a three-page dissent from that decision authored by Justice Scalia and joined by Justices Thomas and Ginsburg.  Mega-bummer!!!

Here is the bulk of Justice Scalia's dissent from the denial of cert in Jones (with emphasis in the original): 

A jury convicted petitioners Joseph Jones, Desmond Thurston, and Antwuan Ball of distributing very small amounts of crack cocaine, and acquitted them of conspiring to distribute drugs. The sentencing judge, however, found that they had engaged in the charged conspiracy and, relying largely on that finding, imposed sentences that petitioners say were many times longer than those the Guidelines would otherwise have recommended.

Petitioners present a strong case that, but for the judge’s finding of fact, their sentences would have been “substantively unreasonable” and therefore illegal.  See Rita v. United States, 551 U.S. 338, 372 (2007) (SCALIA, J., joined by THOMAS, J., concurring in part and concurring in judgment).  If so, their constitutional rights were violated.  The Sixth Amendment, together with the Fifth Amendment’s Due Process Clause, “requires that each element of a crime” be either admitted by the defendant, or “proved to the jury beyond a reasonable doubt.”  Alleyne v. United States, 570 U. S. ___, ___ (2013) (slip op., at 3). Any fact that increases the penalty to which a defendant is exposed constitutes an element of a crime, Apprendi v. New Jersey, 530 U.S. 466, 483, n. 10, 490 (2000), and “must be found by a jury, not a judge,” Cunningham v. California, 549 U. S. 270, 281 (2007).  We have held that a substantively unreasonable penalty is illegal and must be set aside.  Gall v. United States, 552 U.S. 38, 51 (2007).  It unavoidably follows that any fact necessary to prevent a sentence from being substantively unreasonable — thereby exposing the defendant to the longer sentence — is an element that must be either admitted by the defendant or found by the jury.  It may not be found by a judge.

For years, however, we have refrained from saying so.  In Rita v. United States, we dismissed the possibility of Sixth Amendment violations resulting from substantive reasonableness review as hypothetical and not presented by the facts of the case.  We thus left for another day the question whether the Sixth Amendment is violated when courts impose sentences that, but for a judge-found fact, would be reversed for substantive unreasonableness.  551 U.S., at 353; see also id., at 366 (Stevens, J., joined in part by GINSBURG, J., concurring) (“Such a hypothetical case should be decided if and when it arises”).  Nonetheless, the Courts of Appeals have uniformly taken our continuing silence to suggest that the Constitution does permit otherwise unreasonable sentences supported by judicial factfinding, so long as they are within the statutory range....

This has gone on long enough.  The present petition presents the nonhypothetical case the Court claimed to have been waiting for.  And it is a particularly appealing case, because not only did no jury convict these defendants of the offense the sentencing judge thought them guilty of, but a jury acquitted them of that offense.  Petitioners were convicted of distributing drugs, but acquitted of conspiring to distribute drugs.  The sentencing judge found that petitioners had engaged in the conspiracy of which the jury acquitted them. The Guidelines, petitioners claim, recommend sentences of between 27 and 71 months for their distribution convictions.  But in light of the conspiracy finding, the court calculated much higher Guidelines ranges, and sentenced Jones, Thurston, and Ball to 180, 194, and 225 months’ imprisonment.  

On petitioners’ appeal, the D. C. Circuit held that even if their sentences would have been substantively unreasonable but for judge-found facts, their Sixth Amendment rights were not violated.  744 F. 3d 1362, 1369 (2014).  We should grant certiorari to put an end to the unbroken string of cases disregarding the Sixth Amendment — or to eliminate the Sixth Amendment difficulty by acknowledging that all sentences below the statutory maximum are substantively reasonable.

I am especially disappointed that Justice Scalia and his joiners here could not garner one more vote to grant cert from any of the newer Justices who came on the Court after Blakely and Booker became the Sixth Amendment law of the land.  Of course, Justice Alito has frequently shown his disaffinity for expanding the Sixth Amendment rights recognized in those cases.  But Chief Justice Roberts joined the Blakely gang in applying (and arguably expanding) Sixth Amendment rights in Cunningham v. California and Justices Sotomayor and Kagan have "shown empathy" for defendants seeking expanded applications of the Sixth Amendment in more recent cases such as Alleyne.  As I will explain in a future post, anyone (like me) hoping that Justices Sotomayor and Kagan might end up being even more committed to defendants' procedural rights at sentencing has to be deeply troubled by their disinclination to provide a fourth vote for granting cert in Jones.

Previous related posts on this case and acquitted conduct sentencing enhancements:

• Rooting for acquitted conduct petition grant from SCOTUS long conference
• Trying not to get too excited about SCOTUS relist in Jones/Ball acquitted conduct case
• Extended examination of ugliness of acquitted conduct enhancement
• Latest chapter in notable federal acquitted conduct case from DC
• "When Acquitted Doesn't Mean Acquitted"
• DC Circuit gives disconcertingly short-shrift to Antwuan Ball's many significant sentencing claims
• Notable follow-up thoughts on acquitted conduct and the sentencing of Antwuan Ball
• Strong commentary on acquitted conduct sentencing
• Sincere questions about acquitted conduct sentencing
• Amicus brief in Sixth Circuit acquitted conduct case focused on statutory issues

Trying not to get too excited about SCOTUS relist in Jones/Ball acquitted conduct case

Regular readers likely recall a number of posts about the notable federal drug sentencing case from DC involving Antwan Ball and his co-defendants concerning judicial fact-finding to increase a federal guideline sentence contrary to a jury acquittal. As I noted in this post last week, this case, Jones v. US, No. 13-10026, was consider by the Justices at their "long conference." When there was subsequently no announcement of cert being granted last week, I assumed today's SCOTUS order list (noted here) would include Jones v. US, No. 13-10026, on the long list of cases for which certiorari was denied.

But, while the Justices surprised many court-watchers today by denying cert on all the same-sex marriage cases, they surprised me by "relisting" Jones v. US, as noted in this official docket report, for consideration again at the Court's conference this coming Friday.  This is relatively big news — to the extent that not making a cert decision is big news — because a relist is usually a strong signal that one or more Justices are strongly interested in the case and want some more time to mull over the possibility of a grant of cert or some other significant action.

Still, as the title of this post is intended to connote, I am trying real hard to resist getting excited by the prospect of cert being granted in Jones (and/or in another acquitted conduct case) real soon.  It is quite possible — dare I say perhaps even likely — that this relist is just a sign that a Justice or two is working on a dissent from the denial of cert review and need another few days to put the finishing touches on that dissent.   Indeed, given how crisply the acquitted conduct issue is presented in Jones and how many prior petitions have failed to garner the votes need for a cert grant in recent years, it is hard to imagine that the Justices want or need more time to mull this over.  But, while the Dougie Downer voice in my head will keep telling me not to get too excited by all this, the optimist voice in my head keeps imaginging that the big baseball and Sixth Amendment fans on the Supreme Court, namely Justices Scalia and Sotomayor, are going to convince enough of their colleague to finally be willing to "play Ball" and take up the acquitted conduct issue in Jones v. US.   

Previous related posts on this case and acquitted conduct sentencing enhancements:

• Rooting for acquitted conduct petition grant from SCOTUS long conference
• Extended examination of ugliness of acquitted conduct enhancement
• Latest chapter in notable federal acquitted conduct case from DC
• "When Acquitted Doesn't Mean Acquitted"
• DC Circuit gives disconcertingly short-shrift to Antwuan Ball's many significant sentencing claims
• Notable follow-up thoughts on acquitted conduct and the sentencing of Antwuan Ball
• Strong commentary on acquitted conduct sentencing
• Sincere questions about acquitted conduct sentencing
• Amicus brief in Sixth Circuit acquitted conduct case focused on statutory issues

Rooting for acquitted conduct petition grant from SCOTUS long conference

Today, on the first Monday before the first Monday in October, the US Supreme Court Justices meet for the so called "long conference" at which they consider which of the large number of cert petitions that piled up over the summer ought to be heard during the Court's upcoming term. SCOTUSblog this morning here reviews some of the highest profile matters sure to generate the bulk of coverage and commentary.

Of course, I am always hoping/rooting for the Justices to grant cert on any and all sentencing issues. But there is one particular case, Jones v. US coming up from the DC Circuit, in which I filed an amicus in support of cert and thus in which I have a particular interest.  Regular readers of this blog are familiar with this case, which concerns judicial fact-finding to increase a federal guideline sentence contrary to a jury acquittal. (In prior posts (some of which appear below), I stressed the sentence given to one of the co-defendants in this Jones case, Antwan Ball.)

Over at SCOTUSblog, Lyle Denniston provided this effective review of the case and the SCOTUS filings a few weeks ago, and I encourage readers to check out that post or my prior posts linked below for context and background.  Here I will be content to provide this link to the cert petition and this link to my amicus brief in support of cert, as well as these paragraphs from the start of my amicus brief:

Sentencing rules permitting substantive circumvention of the jury’s work enables overzealous prosecutors to run roughshod over the traditional democratic checks of the adversarial criminal process the Framers built into the U.S. Constitution.  When applicable rules allow enhancement based on any and all jury-rejected “facts,” prosecutors can brazenly charge any and all offenses for which there is a sliver of evidence, and pursue those charges throughout trial without fear of any consequences when seeking later to make out their case to a sentencing judge.  When acquittals carry no real sentencing consequences, prosecutors have nothing to lose (and much to gain) from bringing multiple charges even when they might expect many such charges to be ultimately rejected by a jury.  Prosecutors can overcharge defendants safe in the belief they can renew their allegations for judicial reconsideration as long as the jury finds that the defendant did something wrong.  Indeed, piling on charges makes it more likely that the jury will convict of at least one charge, thus opening the door for prosecutors to re-litigate all their allegations before the judge.  Under such practices, the sentencing becomes a trial, and the trial becomes just a convenient dress rehearsal for prosecutors....

The Petitioners contend, as several Justices have already observed, that the Sixth Amendment is implicated whenever a legal rule (in this case, substantive reasonableness review) makes judge-discovered facts necessary for a lengthy sentence.  Amicus further highlights that this case presents the narrowest and most troubling instance of such a Sixth Amendment problem — namely express judicial reliance on so-called “acquitted conduct” involving jury-rejected, judge-discovered offense facts to calculate an enhanced Guideline sentencing range and thereby justify an aggravated sentence.  By allowing prosecutors and judges to nullify jury findings at sentencing such as in the case at bar, the citizen jury is “relegated to making a determination that the defendant at some point did something wrong,” and the jury trial is rendered “a mere preliminary to a judicial inquisition into the facts of the crime the State actually seeks to punish.” Blakely, 542 U.S. at 306-07.

Though various forms of judicial fact-finding within structured sentencing systems may raise constitutional concerns, this case only concerns the uniquely serious and dangerous erosion of Sixth Amendment substance if and when Guideline ranges are enhanced by facts indisputably rejected by the jury.  It may remain possible “to give intelligible content to the right of a jury trial,” Blakely, 542 U.S. at 305-06, by allowing broad judicial sentencing discretion to be informed by Guidelines calculated based on facts never contested before a jury.  But when a federal judge significantly enhances a prison sentence based expressly on allegations indisputably rejected by a jury verdict of not guilty, the jury trial right is rendered unintelligible and takes on a meaning that could only be advanced by a Franz Kafka character and not by the Framers of our Constitution.

Previous related posts on this case and acquitted conduct sentencing enhancements:

• Extended examination of ugliness of acquitted conduct enhancement
• Latest chapter in notable federal acquitted conduct case from DC
• "When Acquitted Doesn't Mean Acquitted"
• DC Circuit gives disconcertingly short-shrift to Antwuan Ball's many significant sentencing claims
• Notable follow-up thoughts on acquitted conduct and the sentencing of Antwuan Ball
• Strong commentary on acquitted conduct sentencing
• Sincere questions about acquitted conduct sentencing
• Amicus brief in Sixth Circuit acquitted conduct case focused on statutory issues

"Procedural Rights at Sentencing"

The title of this post is the headline of this notable new article by Carissa Byrne Hessick and F. Andrew Hessick.  Here is the abstract:

In determining which constitutional procedural rights apply at sentencing, courts have distinguished between mandatory and discretionary sentencing systems.  For mandatory systems ― systems that limit sentencing factors and specify particular punishments based on particular facts ― defendants enjoy important rights including the right to a jury, the right to proof beyond a reasonable doubt, the right to notice of potential sentencing aggravators, and the right not to be sentence based on ex post facto laws.  By contrast, for discretionary systems ― systems that leave the determination of sentencing factors and how much punishment to impose based on particular facts to the judge’s discretion ― defendants do not enjoy these protections.

This Article challenges this discrepancy.  It argues that, given the rationales underlying each of these rights, there is equal reason to apply these rights in discretionary sentencing systems as in mandatory ones.  As it explains, procedural rights regulate the means by which facts are found and the manner in which courts use those facts, and consequently are critical to discretionary systems.  Just as in mandatory sentencing systems, judges in discretionary systems must make factual findings to determine the appropriate sentence to impose.  The Article argues that the various justifications for providing fewer procedures in discretionary schemes are based on misconceptions about the nature of discretion at sentencing and inaccurate historical analysis.

Might SCOTUS soon (ever?) consider whether its Apprendi jurisprudence should apply to criminal forfeitures?

The question in the title of this post is my response to the brief discussion of a constitutional claim appearing in yesterday's Ninth Circuit decision in US v. Wilkes, No. 11-50152 (9th Cir. March 10, 2014) (available here).  Here is why:

Wilkes argues that determination of the amount of his criminal forfeiture by the district judge, as opposed to a jury, violated his Sixth Amendment right to a jury trial. Wilkes argues that Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, 133 S. Ct. 2151 (2013), require that the jury find facts justifying an increase in either end of the range of the prescribed penalty. Wilkes further argues that Southern Union Co. v. United States, 132 S. Ct. 2344 (2012), applied Apprendi and, by extension, Alleyne, to monetary penalties — which he contends includes criminal forfeiture.

Wilkes’s argument is directly contradicted by binding Supreme Court precedent. In Libretti v. United States, 516 U.S. 29, 48–49 (1995), the Court expressly held that there is no Sixth Amendment right to a jury verdict in a criminal forfeiture proceeding. The Supreme Court has cautioned courts of appeals against concluding that “recent cases have, by implication, overruled an earlier precedent.” Agostini v. Felton, 521 U.S. 203, 237 (1997).  Thus, “[i]f a precedent of [the Supreme] Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to [the Supreme] Court the prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989). In compliance with the Supreme Court’s instructions, we reject the argument that Southern Union implicitly overruled Libretti.

Notably, and I think sensibly, this Ninth Circuit panel does not try to explain why Libretti is still sound and good law in light of Apprendi, Southern Union and Alleyne. Instead, it says it is not its role/job to reverse a pre-Apprendi ruling based on Apprendi; that is what SCOTUS has to do. But since SCOTUS has reversed at least two significant pre-Apprendi rulings based on Apprendi, defendants might be wise to keep raising and preserving this claim until the Supreme Court gives it another modern review.

"Sentencing and Prior Convictions: The Past, the Future, and the End of the Prior Conviction Exception to Apprendi"

The title of this post is the title of this interesting and potent new paper now available via SSRN and authored by the always interesting and potent Nancy King. Here is the abstract:

This article traces the fascinating history of early efforts to identify defendants and their prior convictions as well as the evolving use of prior convictions in aggravating punishment; examines how contemporary repeat offender penalties fall short of punishment goals and contribute to the racially lopsided profile of punishment today; and critiques potential justifications for the prior conviction exception to the rule in Apprendi v. New Jersey, arguing that the exception should be abandoned.

The article summarizes empirical research testing the relationship between prior convictions and examining the efficacy of repeat offender sentences in reducing recidivism; collects commentary on the use of risk prediction in sentencing; surveys state-by-state eighteenth century authority that belies the claim that denying element status to prior convictions that raise the range of punishment is a longstanding tradition; evaluates the weaknesses of the case law underlying the Court's decision in Almendarez-Torres; argues that defendants need not be prejudiced when prior convictions are treated as elements; and observes that the original reason that a very small number of states in the nineteenth century stopped requiring prior convictions to be treated as elements — namely, that an offender’s criminal history was often unknown unless or until a warden recognized him — no longer exists.

An earlier version of the article was delivered as the Barrock Lecture on Criminal Law at the Marquette University Law School.

Are 12 Alleyne GVRs (including one from Kansas) a sign of big Sixth Amendment things to come?

Busy on various fronts, I have not yet had time to think through all the impacts that the Supreme Court's Sixth Amendment work last week in Alleyne might produce.  But today, via this SCOTUS order list, I see that there are 12 cases in which certiorari is granted and the judgment vacated, so the case can be remanded "for further consideration in light of Alleyne v. United States, 570 U.S. ___ (2013)."

Some GVRs after a big SCOTUS sentencing ruling are not always a big deal, as there can often be a number of cases in the cert pipeline that are just like the case in which the Supreme Court announced its new doctrine. But, in addition to being intrigued that there were at least a dozen Alleyne-type claims already in the SCOTUS pipeline that now led to these GVRs, I find especially notable that one comes from Kansas (Astorga v. Kansas) and thus involves a remanded "to the Supreme Court of Kansas for further consideration in light of Alleyne v. United States, 570 U.S. ___ (2013)."

My sense has been that Alleyne could and would not end up being nearly as disruptive to any state sentencing systems as Blakely had been. But this Kansas remand, as well my own sense that at least a few states relied on Harris for a while to keep some parts of their sentencing systems in tact, prompts the question in the title of this post.

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:

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

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.

Another perspective on Alleyne argument (predicting Harris's demise)

Experienced lawyer and federal sentencing guru Mark Allenbaugh (firm website here), who has already provided a terrific review of last week's meeting of the US Sentencing Commission for the blog here, now comes through with this lengthy guest-post concerning what he saw at yesterday's SCOTUS oral argument over the reach of the Apprendi:

In a rather spirited exchange between the Justices and counsel, the U.S. Supreme Court heard oral argument today in Alleyne v. United States, 11-9335. (Alleyne is pronounced “AH-lane,” by the way).   The question presented was whether the Court should over-rule its decade old plurality decision in Harris v. United States, 536 U.S. 545 (2002), which held that Apprendi did not apply to facts triggering mandatory minimum penalties. In Alleyne, the defendant was convicted of violating 18 U.S.C. § 924(c), which requires a 5-year mandatory minimum sentence for possession of a firearm in connection with another felony, but a 7-year mandatory minimum if the firearm was brandished, 10 years if discharged.   Moreover, such mandatory minimum penalties are to be imposed consecutive to any guidelines sentence for the underlying felony.   A special verdict form was used in Alleyne as to whether the defendant merely possessed or brandished the firearm; the jury found only that a firearm was possessed.   However, at sentencing, the district judge found by a preponderance of the evidence that the defendant in fact brandished the firearm.  And while reluctant to be a “reverser” of the jury, imposed the 7-year mandatory minimum sentence.

Somewhat surprisingly, the Court started off with a rather rigorous investigation into stare decisis.   Justices Alito and Scalia explored what the principle was for ignoring stare decisis in this case, and pondered the effect of prior opinions of the Court on Harris. Justice Ginsburg helpfully asked whether the issue simply was the degree of persuasiveness a plurality decision has vis-à-vis a unanimous opinion.  Still Justice Alito struggled with developing a constitutional principle that would support overruling Harris. Nevertheless, it did not appear that stare decisis would be an impediment to reversing Harris.

Moving on to the core issue, the Justices struggled with what the holdings in Apprendi and McMillan (upon which Harris rested) meant in terms of increased penalty exposure.  If the ceiling (statutory maximum) is increased, all agreed that that clearly increases a defendant’s exposure. T he issue was whether that also applied to the floor (mandatory minimum).  Justice Scalia repeatedly returned to the fact that if only the floor changes, say from 5 years to 7 years, it does not change what a judge “could have” imposed, and therefore does not increase a defendant’s exposure.  So, for example, if the ranges are 5 to 10 years, a judge could just as easily impose a 7 year sentences the same as if the range were 7 to 10 years.  The government framed the issue as whether a defendant has a constitutional right to judicial leniency. i.e., to a lower sentence than the mandatory minimum.

Interestingly, while there was a focus on the statutory maximum, there was little discussion of a penalty “range,” which to this observer would have seemed to address much of the concern.  A range, of course, implies both a ceiling and a floor.  Apprendi did, after all, discuss exposure not only in terms of an increased statutory maximum penalty, but expressly held that “[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed RANGE of penalties to which a criminal defendant is exposed.” (Emphasis added).  And as we all know, Booker, in holding the Federal Sentencing Guidelines unconstitutional, was concerned about “ranges” there as well.  So, if the argument had moved away from just the ceiling and to “range,” then it would have seemed to address some of the Court’s concerns.  Interestingly, Justice Breyer, who candidly admitted in Harris that he could not logically distinguish Apprendi from its application to mandatory minimum penalties, was silent throughout much of the debate.

Finally, there was some interesting discussions concerning statistics from Justices Kagan and Sotomayor.  Those Justices inquired as to the frequency of sentences imposed at the mandatory minimum in 924(c) cases.  Presumably if judges impose sentences at the mandatory minimum the majority of the time (and Petitioner’s counsel indicated that this is the case), such a finding presumably would tend to show that judges likely would impose a lower sentence if they could (and indeed, per the record below, that appeared to be the case in Alleyne).   However, the question was not framed quite right.  The penalties at 924(c) are imposed consecutive to any guideline sentence, so unless one knew what the underlying guideline sentence was, merely looking at the final sentence would not be instructive.  Further, and more importantly, the Commission does not provide any statistics on 924(c) that would be helpful to answering this question (although Ch. 9 of its recent report to Congress on Mandatory Minimum Penalties does provide some insight). Providing such statistics would be quite helpful, and the Commission’s database appears robust enough to provide reports on the same.

In the end, it appears to this observer that Harris will be overruled. Given that Harris will have little practical effect on sentencing practice because the government already includes in the indictment the facts that trigger a mandatory minimum, it is somewhat odd (to this observer) why the Court granted cert. in Alleyne.  Was it simply an academic exercise to clean-up Harris?  Perhaps, although it could be the start of a larger effort.  The Court recently asked the government to file a response to a petition of cert. in Stroud v. United States, 12-6877 addressing the controversial holding in Watts that courts may use acquitted and uncharged conduct at sentencing.

Recent prior posts on Alleyne case:

• SCOTUS grants cert to reconsider Harris
• NYCDL amicus brief in Alleyne with an offense/offender kicker
• Is Alleyne a stare decisis sleeper about "super-duper precedents"?
• Will 2013 finally bring the demise of Harris via the Alleyne case?
• Great weekend reading for Sixth Amendment fans
• An early report on Alleyne argument over Apprendi's reach

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:

• SCOTUS grants cert to reconsider Harris
• NYCDL amicus brief in Alleyne with an offense/offender kicker
• Is Alleyne a stare decisis sleeper about "super-duper precedents"?
• Will 2013 finally bring the demise of Harris via the Alleyne case?
• Great weekend reading for Sixth Amendment fans

Great weekend reading for Sixth Amendment fans

My main plans for the coming weekend is to watch a lot of (well-paid) large men running around a small field inflicting brain damage on one another while millions cheer them on while drinking lots of alcohol (aka the NFL divisional playoffs).  But I may also have to spend a little time obsessing over the Sixth Amendment and its application to mandatory minimum sentencing fact-finding because Monday brings the Supreme Court oral argument in Alleyne v. United States (basics and briefing here via SCOTUSblog).

Moreover, as Rory Little spotlights in this new SCOTUSblog post, there is also another distinct type of Sixth Amendment case on tap for the Justices on Monday.  Here is how Rory's preview gets started:

Monday is apparently “Sixth Amendment Day” at the Court.  Most eyes will be on the first case to be argued (Alleyne v. United States), in which the Court will consider whether there an Apprendi right to jury trial for mandatory minimum sentencing facts.  But don’t ignore the second case, Boyer v. Louisiana, which presents a Speedy Trial question that seems increasingly important in a world of rising appointed-counsel costs funded by decreasing government budgets.

When a criminal trial is delayed because there are no funds to pay for the indigent defendant’s counsel, does that delay count against “the state” in a Speedy Trial analysis?  We’ll see whether the Justices can stay focused on this discrete question presented – which would be an important one to answer around the nation — or whether they will take the bait (offered by both sides albeit in opposite directions) to decide whether the right to speedy trial was actually violated on the (always) unique facts of this case?  The normal course would be to answer only the question presented, and then remand for “further proceedings not inconsistent” with the Court’s opinion.  While “bad facts” on both sides in this case might tug for a broader ruling, it seems more likely that the Justices will avoid a decision on the ultimate merits – which still leaves a difficult debate on the narrower question.

In addition to the parties' briefs in both cases, there are two amicus briefs filed in Boyer and six amicus briefs filed in Alleyne.  If the NFL playoff games fail to hold my attention, I likely will pull some of these briefs up on my e-reader; I would greatly appreciate any informed (or even uninformed) recommendations as to which of all these briefs make for the best reads. 

Of course, I am partial to the Alleyne brief I help put together for the New York Council of Defense Lawyers (discussed here), in part because it presents an approach to the Sixth Amendment that does not appear in other briefs.  I suspect that, especially in all the Alleyne case, a lot of similar ground may get covered in all the usual discussion of Sixth Amendment jurisprudence; I am thus especially interested to figure out whether and how any fresh ideas about the Apprendi line of cases have been presented to the Justices in all the briefing.

Recent prior posts on Alleyne case:

• SCOTUS grants cert to reconsider Harris
• NYCDL amicus brief in Alleyne with an offense/offender kicker
• Is Alleyne a stare decisis sleeper about "super-duper precedents"?
• Will 2013 finally bring the demise of Harris via the Alleyne case?

SCOTUS cert grant and argument in cases (only?) hard-core sentencing fans should love

After its usual lengthy holiday recess, the US Supreme Court is back in action this week with a full slate of oral arguments and with plans to issue opinions in cases argued earlier this Term on both Tuesday and Wednesday.  And, as well covered here at SCOTUSblog, the Justices got all the new year action off to a running start with a trio of cert grants which included a plea practices case:

The Supreme Court agreed on Friday to rule on the rights of non-Indian couples to adopt an Indian child over the objection of a parent who is a tribal member.   That was one of three newly granted cases. The others deal with the remedy if a federal judge has some role in plea bargaining discussions, and a dispute among states over sharing the waters of a river that flows between them....

The Justices agreed to hear an appeal by the federal government in United States v. Davila (12-167), testing what the remedy is to be in a plea-bargained criminal case when a federal judge had some role leading up to agreement on the plea deal.  The Eleventh Circuit Court ruled that, if the judge (in this case, a magistrate judge) has any role whatsoever in the plea talks, the guilty plea that resulted must be thrown out.   The government petition argued that the guilty plea should be overturned only if the judge’s participation had resulted in prejudice to the accused.

If the issue that the Justices have now taken up in Davila is not intricate enough to scratch the procedural itch of hard-core sentencing fans, today's first scheduled SCOTUS oral argument should provide the perfect balm. Dan Richman provides at SCOTUSblog a great preview of the case in this post with the metaphysical title "When is a burglary a 'burglary'?". Here is how the post starts:

Because its application brings some of the federal system’s harshest mandatory penalties, and requires federal courts to categorize a diverse range of prior state convictions (most of which arose out of guilty pleas on undeveloped records), the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), has provided the Court with considerable business (and a fair amount of exasperation).  Descamps v. United States, 11-9540, set for argument on Monday, January 7, presents the Court with yet another categorization exercise that highlights the tension between such exercises and the Court’s developing constitutional doctrine about when judges can find facts in criminal proceedings.

These paragraphs from Dan's terrific preview spotlights why anyone who enjoys (or hates) visiting Apprendi-land should keep an eye on Descamps:

While the issue is pitched as one of statutory interpretation, substantial constitutional concerns lurk just beneath the surface.   As the Court explained in Cunningham v. California, under the Apprendi line of cases, the Sixth Amendment right to jury trial prohibits “a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.”  The doctrine’s focus on statutory maximums (which are rarely imposed), but not mandatory minimums (which always are) is an artifact of a line of cases that, on January 14, 2013, will, once again, be up for reconsideration when the Court hears argument in Alleyne v. United States.  But the rule’s carve-out reflects the continued vitality of Almendarez-Torres v. United States, which held that fact-finding as to the existence of prior convictions can be done by judges, not juries, even when such findings can increase a defendant’s statutory maximum.  Because this carve-out is a glaring exception from the constitutional rule, the Court has patrolled it carefully, in cases like Shepard v. United States, which limited the universe of materials a sentencing court can consult to determine what the jury in the prior case was actually required to find, or what the defendant necessarily admitted....

Although the Court specifically refused to grant that part of Descamps’s petition asking for Almendarez-Torres to be overruled, it will be interesting to see whether hostility to that case drives oral argument.  By Justice Thomas’s tally in Shepard v. United States, “a majority of the Court now recognizes that Almendarez-Torres was wrongly decided.”  So look for the Justices to limit the Almendarez-Torres carve-out by making inquiries into the nature of prior offenses as mechanistic as possible.  Given the warnings by lower courts of the practical and constitutional difficulties raised by the Ninth Circuit’s outlier approach, we should expect the government to face an uphill battle.  And, for all its technical aspects, it is one worth watching, as the heaviness with which the federal hand comes down on a lot of defendants depends on how their prior criminal convictions get categorized.

UPDATE:  The oral argument trascript in Descamps is now available at this link.  I will blog about anything interesting I find within it if/when I have time this evening (in other words, if the National Championship game gets boring).

Will 2013 finally bring the demise of Harris via the Alleyne case?

I have been too busy with family et al. this holiday season to find the time to complete either a 2012 sentencing year-in-review post or a set of 2013 sentencing law and policy predictions.  But, on this last day of 2012, I can helpfully preview what is surely among the top sentencing stories to watch in the next year (especially for Apprendi fans): the Supreme Court's consideration of the Alleyne case, in which the Justices are to consider whether to reverse the mandatory minimum exception to the Apprendi Sixth Amendment doctrine.

This preview comes principally via a new BNA article by David Debold and Matthew Benjamin, which I have been permitted to post here.  The piece is titled "Is Harris a Mandatory Minimums Ruling Whose Time Has Run Out?", and it starts this way:

On Jan. 14, the U.S. Supreme Court will hear argument in Alleyne v. United States, the latest case to explore the contours of the Sixth Amendment’s jury-trial guarantee at the sentencing phase. Since 2000, when the Supreme Court issued its landmark opinion in Apprendi v. New Jersey, the rule has been that, "other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt."

On numerous occasions over the past dozen years, the court has applied this rule to invalidate sentencing schemes that allowed judges to find facts that would expose a defendant to a more severe sentencing outcome.  Just last term, in Southern Union Co. v. United States, the court held for the first time that Apprendi applies to the imposition of criminal fines....

Alleyne raises a variation on the Apprendi theme. Unlike cases such as Southern Union, where the court applied the Sixth Amendment to the finding of facts capable of raising the sentencing ceiling, Alleyne will address whether a jury must find facts that raise the floor—otherwise known as mandatory minimums.  This is familiar territory for the Supreme Court. Just a couple of years after Apprendi, the court held in Harris v. United States that the Sixth Amendment does not require that a jury determine the facts that raise the bottom of a statutory sentencing range.  Thus, under Harris, a judge may constitutionally find facts that trigger a mandatory minimum sentence within the existing statutory range, and the judge may find such facts by a preponderance of the evidence, with no need for the government to allege them in an indictment.

The vitality of the holding in Harris has always been tenuous, at best.  The crucial fifth vote came from Justice Stephen G. Breyer, who candidly admitted in his concurrence that he could not "easily distinguish Apprendi v. New Jersey from this case in terms of logic." Instead, he voted with the plurality only because he could "not yet accept [Apprendi’s] rule."  Many petitioners — recognizing that no more than four justices could agree on a principled basis for the Harris holding — have hoped to learn how Breyer would rule if ever forced to admit that Apprendi is here to stay.  But repeated requests for the court to revisit Harris have consistently failed — until the recent grant of certiorari in Alleyne. Alleyne thus presents the court with a long-anticipated opportunity to overrule Harris.

Download Debold-Benjamin BNA piece on Alleyne

Recent prior posts on Alleyne case:

• SCOTUS grants cert to reconsider Harris
• NYCDL amicus brief in Alleyne with an offense/offender kicker
• Is Alleyne a stare decisis sleeper about "super-duper precedents"?

NYCDL amicus brief in Alleyne with an offense/offender kicker

As long time readers know, in first trying to make sense of Blakely, I was drawn to distinguishing between offense conduct and offender characteristics in the application of Apprendi's "bright-line rule."  I first developed this idea in my Conceptualizing Blakely article, advanced it in a Stanford Law Review article, and unpacked it further (with Stephanos Bibas) in Making Sentencing Sensible.  As explained in Conceptualizing Blakely, I believe an offense/offender distinction helps give conceptual content to the prior conviction exception, better links the Apprendi rule to the express text of the Constitution, and resonates with the distinctive institutional competencies of juries and judges.

Consequently, when the Supreme Court decided it would take another trip to Apprendi-land by granting cert in Alleyne to consider the continued validity of the Harris mandatory minimum limit on the the Apprendi rule (basics here and here), I was interested in pitching the Justices yet again on the idea of incorporating an offense/offender distinction into some part of this jurisprudence.  Wonderfully, a terrific group of New York lawyers reached out to me about helping the New York Council of Defense Lawyers on an Alleyne amicus brief, and they were willing to add an offense/offender "kicker" to NYCDL's arguments for overruling Harris.  The NYCDL brief in which I lended a hand was filed yesterday and can be downloaded below.  Here are two key paragraphs from the summary of argument:

As this Court has applied Apprendi’s holding over the last decade, several Justices have expressed con-cerns about the rule’s potential impact on trials and sentencing.  As NYCDL’s experience in New York federal and state courts shows, any such effects will be minimal.  New York’s federal courts, for example, have operated for seven years under a paradigm for drug offenses that substantially parallels the structure all courts would face should this Court overturn Harris.  Practitioners there have been able to apply Apprendi’s rule to drug offenses with relative ease: from the indictment to the jury instructions or to the plea allocution, New York prosecutors and defense lawyers are able to address any facts that expose defendants not just to increased maximums, but also to increased minimums.  Similarly, criminal defense attorneys in New York state courts regularly confront situations where a jury is required to find facts that trigger a mandatory minimum sentence, without apparent difficulty or inefficiency.  These experiences buttress Petitioner’s argument that “there are no practical impediments to overruling Harris.”  Pet. Br. 42.

Moreover, any of the enduring practical concerns identified by certain Justices can be addressed by adopting an approach to overruling Harris that distinguishes between facts that are specific to the offense and facts that are specific to the offender.  The Constitution’s text requires that all facts relating to the alleged “crimes” at issue must be stated in the indictment and presented to the jury, which the Due Process clause requires to be proven beyond a reasonable doubt.  To avoid a requirement that aggravating facts concerning an offender’s past be presented to the jury if such offender-specific characteristics implicate a mandatory minimum, the Court should draw a line for Constitutional purposes that allows judicial determinations of offender-specific facts that are relevant to sentencing, so long as such facts do not alter the range of applicable sentences.  Such a rule comports with the particular competencies of the jury and judge: The jury’s traditional role is to answer questions about the criminal conduct alleged in an indictment, while the judge has historically been expected to assess broader offender-based considerations such as an offender’s criminal history, amenability to rehabilitation, and correctional treatment.  Where, as here, a sentencing judge acts as “the reverser of juries” in finding offense-related facts only by a preponderance of the evidence, the sentence is unconstitutional.  The decision below should be reversed.

Download NYCDL Amicus Brief in Alleyne

A musical message from Milbarge in honor of Harris reconsideration

Very long-time readers may recall some comical song parodies by the mysterious Milbarge concerning Blakely and Booker (example here). The classic of the genre was "'Twas the Night Before Booker," and even a re-reading of this 2004 ditty brings to mind a more innocent sentencing era.  I was thus excited to receive the following e-mail from Milbarge this weekend:

I'll confess that I'm just as excited for the Court's decision to reconsider Harris [basics here]. So even though my blog is on semi-permanent hiatus..., I decided to dust off the ol' parody song pen and see what I could come up with.

You may recall the old tv Western called "Branded," starring Chuck "The Rifleman" Connors. Here is a video of the opening credits and theme song. And here are the lyrics to the song.

It's kind of a weird song (it's used in "The Big Lebowski," by the way), which makes it difficult to parody, but I couldn't resist the branded/brandished wordplay. So here's my stab at a song to honor what will hopefully be the next sentencing watershed decision:

 

What did the jury find?

What will the sentence be?

Is Apprendi here to stay...?

Brandished!

 

Apprendi’s odd man out.

But can they say it was brandished

By a reas’nable doubt?!

 

Harris hung around...

Never overruled...

But now they’ve taken up Alleyne...

Brandished!

 

Mandatory prison time.

How can the judge say you brandished

When the jury didn’t bite?!

 

And it should be just five

But it’s seven to life.

Did they prove

Or indict...

 

Brandished!

Related post:

• SCOTUS grants cert to reconsider Harris

SCOTUS grants cert to reconsider Harris

I am thankful that I am on the golf course this afternoon, and even more thankful I can blog via my smartphone about the decision by SCOTUS to grant cert to reconsider Harris.  Details to follow once back at a real computer.

UPDATE: Lyle Denniston has this lengthy post about this notable cert grant titled "Another revolution on sentencing?".  Here are excerpts:

The newly granted case is Alleyne v. United States (docket 11-9335), growing out of the robbery of a convenience store owner in Richmond, Va.  Allen R. Alleyne got eighty-four months added to his basic sentence for the robbery, on the theory that he would have known that his accomplice in the robbery would wield a gun as they carried out the robbery.  The added sentence was based upon the finding by the judge, not the jury, that Alleyne would have known about the plan to “brandish” a gun — a factor that leads to a mandatory minimum sentence beyond a basic sentence for the crime itself....

Since the Court decided the Apprendi case twelve years ago, various combinations of Justices have adhered to it, and sometimes expanded its reach.  But the Court had never extended it beyond enhancement of the maximum sentences that a legislature had laid down.  Justice Breyer, whose former leadership of the U.S. Sentencing Commission had made him at least a skeptic about Apprendi, but Alleyne’s public defender lawyers had pointed out in their new petition that Breyer had made comments in 2010 — when the Court was considering United States v. O’Brien — that the time may have come to revisit the Harris precedent.

The new petition argued: “Justice Breyer and the four dissenting Justices in Harris were correct in perceiving the logical and practical inconsistency of the plurality’s position.  A strict distinction between maximum and mandatory minimum sentences cannot be reconciled with the rule of Apprendi that the Constitution’s indictment, jury, and proof guarantees apply to all ‘facts that increase the prescribed range of penalties to which a criminal defendant is exposed.”...

In the Alleyne case, the accused was convicted of one count of robbery affecting interstate commerce, because the robbery occurred as a store manager was carrying deposits to a bank, and one count of using a gun during a crime of violence.  He received a forty-six-month sentence on the robbery charge.  The prosecutors also had charged Alleyne with brandishing a firearm during the robbery.  Even though the jury concluded that Alleyne had not done so, the trial judge ruled that Alleyne should have foreseen that his accomplice would brandish a gun during the robbery, so he had to be punished for that himself.  The judge then imposed an added eighty-four months of sentence on top of the forty-six months — as required under the federal law that imposes a mandatory minimum sentence for brandishing a gun.

Alleyne’s lawyer at the trial had conceded that the Harris decision did treat brandishing a gun as a sentencing factor, not as an element of the crime, the defense lawyer argued that Harris was inconsistent with Apprendi and later sentencing cases.  The judge rejected that challenge, but commented in imposing the added sentence that “I don’t like being the reverser of juries.”  The judge said that he had to countermand the jury finding that Alleyne did not brandish a gun because the Harris precedent gave him no choice.  The Justices are expected to hold argument on the Alleyne case either in January or February.

ANOTHER UPDATE:  Todd Bussert has posted the cert petition in Alleyne in this post at his Federal Prison and Post Conviction Blog.

Is SCOTUS gearing up to reconsider Harris and the Sixth Amendment's application to mandatory minimums?

The question in the title of this post is prompted by an exciting paragraph deep within John Elwood's exciting new SCOTUSblog post excitingly titled "Relist (and Hold) Watch." Here it is:

Unsurprisingly, the first real order list after the Long Conference left us with a boatload of relists.  Eleven, in fact.  Apprendi purists, ready the confetti:  Two of the relists, Alleyne v. United States, 11-9335, and Dotson v. United States, 11-9873 (which we first discussed in May), ask the Court to overrule Harris v. United States (2002).  You might recall that, in Harris, a plurality headed by Justice Kennedy plus Justice Breyer’s concurrence in the judgment held that facts that increased the mandatory minimum sentence need not be decided by the jury.  Two members of the Harris majority (Chief Justice Rehnquist and Justice O’Connor) are gone, as are two of the dissenters (Justices Stevens and Souter).  It would be a pretty big deal if the New ‘n’ Improved Court revisited Harris.  But I will try to curb my enthusiasm in case the Court is pulling its Lucy-and-the-football trick again, like it did both during OT2010 and last Term when it relisted cases seeking to revisit another sentencing rule in tension with Apprendi, Almendarez-Torres v. United States (holding that the fact of a prior conviction could be found by a judge rather than submitted to a jury) – only to deny those petitions without comment.

I have so much to say on this topic, but I need to first get my confetti ready and also put on my black-striped Charlie Brown yellow shirt.

"A Demise Greatly Exaggerated — Apprendi Is Extended to Criminal Fines"

The title of this post is the title of this notable new piece authored by David Debold and Matthew Benjamin appearing in a recent issue of Bloomberg BNA’s Criminal Law Reporter.  The piece discusses the Supreme Court's Sixth Amendment work last Term in Southern Union, and here are two notable paragraphs from the piece's introduction:

Although relatively straightforward in its reasoning, the Southern Union holding has potentially farreaching consequences.  As Apprendi and later cases did with respect to sentences of imprisonment or death, Southern Union will strengthen the relative bargaining position of criminal defendants in plea negotiations over fines.  This is particularly true for corporations and other organizational defendants, for whom the most potent available punishment is a large fine and for whom the most likely resolution of criminal misconduct allegations is a settlement agreement.

Southern Union also can be expected to usher in new battles regarding the admissibility at trial of evidence that the decision now makes relevant to establishing a defendant’s maximum fine.

Finally, Southern Union suggests that the court — including its two newest members, Justices Sonya Sotomayor and Elena Kagan, both of whom joined the majority — is firmly committed to Apprendi and may consider recognizing that its constitutional protection extends to another financial penalty in criminal cases: restitution.  In short, reports of Apprendi’s possible demise — which started circulating after the court’s 2009 decision in Oregon v. Ice — appear to have been greatly exaggerated.

Effective review of Southern Union's impact and potential import

For various understandable reasons, the Supreme Court significant Sixth Amendment ruling in Southern Union has not gotten all that much attention.  But this effective Indiana Lawyer article, headlined "US Supreme Court: Criminal fines require jury finding," provides a nice reminder of the significance of the ruling. Here are excerpts from this piece:

An end-of-term U.S. Supreme Court decision did far more than reduce a penalty in a federal criminal environmental judgment from $18 million to $50,000. It created a new reality for how the government will have to pursue such prosecutions in the future, experts say.

A rare coalition of conservative and liberal justices ruled 6-3 in Southern Union Co. v. United States, 11–94, that the Sixth Amendment right to a jury trial requires a jury to determine facts to support a sentence imposed after a guilty verdict....

“This is definitely a win for the defendants,” [Indiana University law professor Ryan] Scott told the Indiana Lawyer. “That said, the history of Apprendi is one of the Supreme Court recognizing more and more expansive jury rights and the government responding with great resilience.”

In essence, experts said, juries will have to determine factors such as lengths of violations for sentences involving fines on a “per day/per violation” basis, or losses and potential penalties in federal fraud cases. A simple guilty verdict such as that in Southern Union no longer is sufficient to allow a judge to use his or her discretion in levying criminal fines....

Southern Union seems to suggest that Apprendi may apply to any penalties inflicted by the government for the commission of offenses.... Also left for future consideration: “When does an offense rise beyond the level of ‘non-petty’ and become substantial enough to invoke the Apprendi rule?”

Scott also sees more Apprendi questions arising. The jury trial right could be a matter for the courts to decide in cases involving restitution determinations and in matters where asset forfeiture is ordered, he said.

A (too) quick first take on Southern Union and Hill/Dorsey

I am so very pleased and grateful the Supreme Court finally handed down today opinions in two of the three big sentencing cases pending this term: we got Southern Union concerning Apprendi's applicability to fines (basic here), and Hill and Dorsey concerning application of the new crack FSA sentencing provisions to pipeline cases (basics here).  We still await Jackson and Miller, the juve LWOP Eighth Amendment cases (which, I would guess, will be handed down on Monday.)  Even before reading them very closely, I wanted to share a few quick reactions to today's notable sentencing rulings:

1.  In both cases, federal defendants prevailed and were able to get a SCOTUS reversal of pro-prosecution rulings issued by federal circuit courts.  This reality reinforces, yet again, my belief that the US Supreme Court is a much more pro-defendant appellate tribunal on sentencing issues than many (most? all?) other appellate courts in the nation.  (This means, inter alia, sentencing defendants unhappy with an appellate outcome in a lower court ought always seriously consider appealing to SCOTUS.)

2.  In both cases, oral argument proved to be a pretty good predictor of where the Justices were leaning, and those Justices with a history of engagement with sentencing issues were tasked with writing opinions for their colleagues.  We got two opinions from Justice Breyer (a majority and a lead dissent), and an opinion from Justice Sotomayor (a majority) and Justice Scalia (a dissent).  I was a bit surprised that Justice Alito did not write in either of these cases, though his vote in both was pro-prosecution and I suspect he has a (pro-prosecution) opinion coming in the juve LWOP cases.

3.  Because of the huge debates and controversy over crack sentencing rules, and because hundreds of crack cases are sentenced in federal courts every month, the Hill and Dorsey cases will likely get much more attention and have more short-term impact in the days and months ahead.  But Southern Union is the "bigger" decision because it shows (a) that there are now six Justices (including three of the four newer ones) who are happy to keep extending the Apprendi/Blakely rule and (b) that the Ice ruling cutting back on the Sixth Amendment's reach is likely to end up as an outlier in this jurisprudence.

4.  In light of the 6-3 outcome Southern Union, I see strong reasons for the defense bar to keep pushing hard to get the Justices to take up a case that enables reconsideration of the Almendarez-Torres exception (covering prior convictions) and the Harris exceptions (convering mandatory minimums) to the Apprendi rule.  Because Chief Justice Roberts is now a long-term citizen in Apprendi-land and because he has shown in other settings a willingness to engineer the overturning of precedents he finds misguided, the time may now be really ripe to find strong case(s) through which to seek reversal of these (misguided?) Apprendi exceptions.

In 6-3 opinion, SCOTUS finds that Apprendi rule applies to criminal fines

As I hoped and expected, today we finally got one of the big final sentencing cases from the Supreme Court.  Specifically, as per the early SCOTUSblog report, we have this Apprendi sighting:

Justice Sotomayor has opinion. The rule of Apprendi v. NJ applies to the imposition of criminal fines. The First Circuit is reversed. The vote is 6-3. Justice Breyer dissents, joined by Kennedy and Alito.

The full opinion is now available at this link and I am certain I wil have much to say about the ruling and its import in the hours to come.

UPDATE:  A very quick scan of the opinions (in which the dissent by Justice Breyer is nearly twice as long as the opinion for the Court) suggests that three of the four newer Justices are now happy citizens in Apprendi-land with Justice Alito the only newby on the outside complaining about this magical land's continued growth.

Another week of SCOTUS waiting for sentencing fans

I had thought there was a reasonable possibility that the Supreme Court sometime this week might hand down one of the big sentencing cases still pending: Southern Union (Apprendi's application to fines); Jackson and Miller (mandatory LWOP for young juve murderers); Dorsey and Hill (the FSA's application to pipeline cases).  But, as detailed via this post at How Appealing, the Justices did not issue opinions in any of these cases this morning.  They Justices did grant cert and hand down one opinion on police practice issues, and Lyle Denniston reports here at SCOTUSblog that probably the most notable criminal justice decision was a cert denied in two high-profile federal convictions flowing from campaign donations in Alabama. 

According to the folks at SCOTUSblog, it appear that the Court will not hand down opinions again until next Monday.  So, it's another week of waiting for these sentencing rulings.  Fortunately, absent some dramatic or unexpected development (such as a order for reagument), I think we can reasonably expect to see opinions in all of these cases within the next three weeks.

Anyone yet eager to make predictions on the timing, outcomes, vote counts or opinion writers in these big sentencing cases.  At this moments I am inclined to guess we will get Southern Union next week, the juve LWOP cases the week of June 18, and the FSA pipeline cases the week of June 25.  In addition, I think the defendants are likely to previal in these cases by votes of 7-2, 5-4, and 6-3, with Justices Thomas, Kennedy and Sotomayor as principal opinion writers. 

But who really knows with this Court these days!?!?

Seeking early predictions on Southern Union (and Apprendi's future)

This coming Monday, the Supreme Court will hear oral argument on the biggest Apprendicase to come down the pike in a few years.  SCOTUSblog has this effective new argument preview posted on the case, and here is how it begins:

On Monday, March 19, the Supreme Court will hear oral argument in Southern Union Co. v. United States, a case that could bring about profound changes in the way courts impose criminal fines, which serve as the principal sanction for organizations, including corporations.  The Court will have to determine whether fines are subject to the principle announced in Apprendi v. New Jersey: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”  To date, the Court has applied this principle only to the death penalty (Ring v. Arizona) and to sentencing schemes limiting years of incarceration a judge may impose in the absence of specific factual findings (Blakely v. Washington, United States v. Booker, Cunningham v. California, and Oregon v. Ice).

The issue arises in the context of an environmental criminal statute authorizing a prison term and a fine “per day” of violation.  The jury was not asked to determine the number of violation days; it returned a general verdict of guilty.  However, the court imposed a sentence based on the premise that the violation had occurred for more than one day.  If the Supreme Court finds that the trial court engaged in judicial fact finding -- and if Apprendi applies to fines -- the sentence violates due process and the Sixth Amendment right to jury trial.

The decision in this case could turn on the Court’s assessment of the judicial role in imposing fines at the time of the Founders and whether fines -- the sanction for corporate “persons” -- are a fundamentally different punishment from incarceration.  Considerations concerning the administration of justice may come into play.  Finally, the opinion should clarify the significance of Oregon v. Ice, the Court’s most recent relevant precedent.

Another Southern Union preview can be found in this Greenwire piece, which includes this discussion of some underlying facts:

Seizing on the Apprendi ruling, Southern Union claims that only a jury can decide on the number of days the company was in violation of RCRA. Although a jury deliberated on the question of Southern Union's guilt, it was U.S. District Judge William Smith of the District of Rhode Island who imposed a total of $18 million in fines and fees based in part on how many days the mercury was illegally stored.

Under RCRA, the company faced a criminal penalty of up to $50,000 a day. The government had asserted in the indictment that the company was in violation for 762 days, meaning there was a maximum fine of $38.1 million.

Southern Union had opted to go to trial so it could argue that the mercury had not been abandoned and was therefore not a waste product.  The company maintained it had stored the mercury carefully and that it would eventually be recycled. The mercury only became a problem when vandals broke into the facility and spilled some of the substance, which led to an expensive remediation process.

After considering the questions concerning the Apprendi ruling, Judge Smith imposed a $6 million fine and a $12 million community service fee. Smith concluded that the jury had found the company to be in violation for the entire period, which gave him the leeway to impose the penalty.

Southern Union had no luck when it appealed to the Boston-based 1st U.S. Circuit Court of Appeals. In December 2010, the court -- going further than Smith -- held Apprendi didn't apply to financial penalties.  It based its ruling in part on a 2009 Supreme Court ruling, Oregon v. Ice, in which the high court, again split 5-4, said that Apprendi was not intended to expand the jury's role beyond what it has done in the past.

Southern Union and its supporters -- which include the National Association of Criminal Defense Lawyers and the U.S. Chamber of Commerce, who filed a joint amicus brief -- say the appeals court is out of sync with other courts around the country that have concluded that criminal penalties are covered by Apprendi....

Solicitor General Donald Verrilli, representing the Obama administration, insisted in his brief that the Supreme Court made clear in the 2009 Iceruling that judges must consider the historical role of the jury in deciding how to draw a line between the role of judges and juries. "This court has long recognized that criminal fines, even significant ones, raise fundamentally different concerns from terms of incarceration or the death penalty," Verrilli said.

The former is a "deprivation of property," while the latter is a "deprivation of liberty or life," he said.  Verrilli delved into English common law in making the case that judges traditionally had "more discretion with respect to fines than they did in imposing terms of imprisonment or death."...

Whatever the court rules, it is not likely to directly affect a large number of cases. There are 15 federal statutes that impose fines based on the number of days of a violation, although a number of them concern violations of environmental regulations, including Clean Water Act permitting. "It's a narrow category of cases," said criminal law expert Ryan Scott, an associate professor at Indiana University's Maurer School of Law....

Supreme Court watchers are unsure how the court will rule, in large part because there are four serving justices who were not on the court when Apprendiwas decided and two -- Justice Elena Kagan and Justice Sonia Sotomayor -- have been appointed since Ice was decided.  As Scott put it, it is an "unusually difficult one to guess."

I share Professor Scott's view that predicting an outcome, or even the votes of  particular justices, in Southern Union is unusually difficult.  I can make a plausible prediction that Southern Union could possibly win 9-0 because I doubt that the Court's still-remaining Apprendi dissenters (Justices Breyer and Kennedy) will be distinctly eager to prevent Apprendi's extension into this arena.  And yet, in Ice, a one-time (though fickle) Apprendi supporter, Justice Ginsburg, wrote a broad opinion for the Court limiting Apprendi's reach and suggesting that she (as well as Justice Alito, who was another key swing vote in Ice) may be increasingly concerning about what could happen if Apprendi rights were extended into new sentencing settings.  If Justice Ginsburg remains very concerned about the expanding the borders of Apprendi-land, I could imagine her (perhaps with the help of the Apprendi-haters) seeking to persuade some of the new Justices to draw another line in the jurisprudential sand here.

As my post title suggests, I am very eager to hear from readers concerning their perspectives on the Southern Union case in particular and on Apprendi jurisprudence more generally now that it is a full dozen years since the Sixth Amendment started playing a big role in sentencing law and policy.

Some recent related posts:

• SCOTUS to decide whether Apprendi applies to criminal fines via Southern Union
• Sixth and Eighth Amendment cases as notable amuse-bouche for SCOTUS health care litigation
• Top-side brief in Southern Union explains why Sixth Amendment Apprendi rule applies to fines
• How might newer Justices take on Apprendi jurisprudence in Southern Union?

How might newer Justices take on Apprendi jurisprudence in Southern Union?

A helpful e-mail from a reader reminded me that I have not blogged enough about the exciting Apprendi doctrine case that the Supreme Court will hear upon its return to oral argument action on March 19. The question presented in Southern Union v. US (SCOTUSblog coverage here) is simple enough: "Whether the Fifth and Sixth Amendment principles that this Court established in Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny, apply to the imposition of criminal fines."  What is not simple is figuring out what the newer SCOTUS justices, particularly Justices Sotomayor and Kagan, think about the Supreme Court's somewhat tortured Apprendi jurisprudence and its application in this setting.

Notably, Chief Justice Roberts has been a consistent vote with those Justices inclined to expand Apprendirights (of which only Scalia and Thomas are still on the Court), as evidenced most clearly by his votes in Cunningham (with the majority) and Ice(with the dissent).  Meanwhile, Justice Alito has been a consistent vote with those inclined to limit Apprendi rights, as evidenced most clearly by his votes in Cunningham (with the dissent) and Ice(with the majority).  Justice Breyer and Kennedy have been consistent Apprendi haters, but maybe the doctrine will bother them less in this context.  And who knows what to expect of Justice Ginsburg in this arena in the wake of Booker and Ice.

Southern Union will present the first crisp opportunity for the two newest Justices to indicate how they view ApprendiFifth and Sixth Amendment rules.  If they both join the Roberts, Scalia, Thomas troika in Apprendi-land, Southern Union could possibly have profound long-term implications for all sorts of (financial and other) punishments beyond fines.

Top-side brief in Southern Union explains why Sixth Amendment Apprendi rule applies to fines

All Apprendi/Blakely fans (and, for that matter, all Apprendi/Blakely haters) will want to check out this SCOTUS merits brief from the petitioner in Southern Union v. US, which was filed last week.  Here is the start of the brief's statement of the case

This case raises the question whether the principle that this Court recognized and applied to sentences of incarceration in Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny, applies equally to the imposition of criminal fines.  At the outset, the Court might wonder what the argument could be that the Apprendi principle does not apply to criminal fines, given that this Court’s explicit holding in Apprendi was that any fact that increases the “penalty” for a crime must be submitted to the jury and proved beyond a reasonable doubt, and criminal fines are unquestionably “penalties.”  Indeed, prior to the decision below, federal and state courts uniformly held (or assumed) that Apprendi applies to the imposition of criminal fines.  Even the United States agreed that the Apprendi principle applies to fines.

The decision below is the first to hold otherwise.  It did so based on the court of appeals’ view that this Court’s opinion in Oregon v. Ice, 555 U.S. 160 (2009), announced a whole new methodology that fundamentally narrowed the Apprendi doctrine and also suggested that a court can use non-jury fact-finding to impose a fine that exceeds the maximum fine set by the legislature, which is what happened in this case.  As shown below, this reading of Ice, a case which did not involve a criminal fine, is fundamentally flawed and ignores the fact that Ice was an exceedingly narrow ruling.  In particular, the court of appeals’ historical understanding was at a minimum incomplete, and in all events did not support its conclusion that fines are outside the scope of Apprendi.

This Court should reverse the court of appeals’ holding because it would deprive criminal defendants of their fundamental jury trial rights in cases involving fines, and should vacate the fine imposed in this case (which was 360 times greater than that authorized by the jury’s verdict).

Many hard-core Apprendi/Blakely fans were justifiably puzzled by Ice, and this new case presents the Court with its first opportunity to explain if and how Ice was meant to recast the Apprendi/Blakely Sixth Amendment rules.  Also, Southern Union will present the first crisp opportunity for the two newest Justices to indicate how they view Apprendi/Blakely Sixth Amendment rules, which could of course have profound long-term implications for all sorts of punishments beyond fines.

Sixth and Eighth Amendment cases as notable amuse-bouche for SCOTUS health care litigation

As reported here at SCOTUSblog, the Supreme Court has released its oral arguments calendars for its February and March sittings. Not surprisingly, the legal media is mostly talking about the court's decision to set arguments on the new federal health care law for all its sessions in the week of March 26.   And, also not surprisingly, I find interesting the fact that the Court has scheduled for oral argument its Sixth Amendment Apprendi fines case (Southern Union Co.) and its two Eighth Amendment juve LWOP cases (Miller and Jackson) in the week just prior to the health care litigation.

As the title to this post suggests, I thin these constitutional criminal law and procedure cases will provide a notable tingler for the constitutional taste buds to prepare the Justices for the health care fight to follow. In Southern Union Co., the federal government will be urging the Justices not to read the Constitution to place any more procedural burdens on its efforts to impose criminal fines, and in Miller and Jackson, two states will be urging the Justices not to read the Constitution to place any more substantive limits on what punishments they can impose on juveniles convicted of murder. In these cases, some of the more conservative Justices will surely be sympathetic to assertions that an unelected judiciary should not find new constitutional problems with duly enacted criminal laws.

But, of course, the script will be (somewhat) flipped the following week with the health care litigation. The feds, of course, will still be defending federal law against constitutional attack. But now state will be urging an unelected judiciary should to find constitutional problems with duly enacted civil laws. And, so the thinking goes, now the more conservative Justices seem likely to be sympathetic to assertions that these duly enacted laws go to far.