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Notes on the Oregon v. Ice Argument

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In Oregon v. Ice, the Supreme Court heard argument on whether the Apprendi line of cases, requiring jury trial for facts that increase the maximum sentence that may be imposed, should be extended to cover consecutive as opposed to concurrent sentences for multiple crimes. CJLF's amicus brief in the case is here. Our pre-argument press release is here.


Mary Williams argued for the State of Oregon. Justice Scalia indicates that Oregon's statute is unique, requiring factual findings before the defendant is eligible for consecutive sentencing, and in that situation Apprendi should apply. Williams thinks there may be as many as 13 states with such laws. She notes prior Apprendi cases were all on one sentence for one conviction. Justice Scalia notes the important impact of consecutive v. concurrent.

Williams notes that historically the jury had no role in this decision. Astonishingly, Justice Scalia appears to retreat from history as the basis of Apprendi.

Williams discusses the Apprendi rule. Justice Kennedy says, "The rule does bear on culpability, and culpability sounds like part of the definition of an offense or a more serious offense." Justice Souter says the concern in Apprendi was the manipulation of elements to remove the jury as buffer between the accused and the state. He is not convinced that the fact that juries traditionally had no role in this decision is dispositive.

Justice Scalia asks about a hypothetical statute requiring consecutive sentences in any crime involving use of a gun. Williams says that is a more difficult situation to analyze.

Justice Breyer asks about the historical research, "all the way back to Nebuchadnezzar...." (p 13) The state didn't go back quite that far, "but I take it you did look to see what was true at the time of the writing of the Constitution." Right.

Justice Scalia is back to saying "you could say the same in Apprendi." (p 14) [If so, Justice Scalia, then Apprendi was wrongly decided.] Williams returns to the distinction that Apprendi was about the functional equivalent of elements of a greater offense. Justice Souter asks if the way they defined functional equivalent applies here. Justice Breyer asks about a variety of other decisions judges make: "restitution, forfeiture, taking a child and having him tried as an adult? What about probation? What about alternative drug programs? What about diversion?" Justice Scalia says the parade of horribles argument is easily addressed by limiting it just to sentences. Justice Breyer says some these things are part of "sentence."

Justices Stevens asks, "May I ask you a question that may seem totally irrelevant? Do you think our decision in McMillan v. Pennsylvania was correctly decided?" The first part is the easiest. Yes, it's totally irrelevant, but Williams doesn't say that. She just says it's distinguishable. Justices Stevens asks about crimes in different jurisdictions. It doesn't really make a difference.

Ernest Lannet is up for the defendant. Right out of the gate, Justice Ginsburg notes the perversity of imposing additional restrictions on the state because it imposed a presumption favoring the defendant and a factual finding needed to overcome it. "And here the State is saying, we want to give the defendant more of a right. And he can say, that's unconstitutional, but if you give me less of a right, it would be perfectly constitutional. It's that enigma that I think is very disturbing about this case."

In response, Justice Scalia asks about a hypothetical statute where "the penalty will be 30 years for burglary unless the defendant did not commit the crime with a firearm, in which case it will be 15 years?" Would Apprendi apply to the firearm finding?

Justice Breyer asks about the wisdom from the defense viewpoint of putting more and more stuff in front of the jury. [Do you really want to argue, "I didn't do it, and if I did they were one crime and not two"?] Justice Kennedy asks if Lannet is arguing that bifurcated proceedings are required.

Chief Justice Roberts takes up Justice Scalia's hypothetical. He thinks it's not a problem. [Nobody seems to realize there actually are sentence-reducing facts: the various exclusions from capital punishment -- retardation, minority, minor accomplice in a felony-murder case (Enmund v. Florida). Jury trial has not been constitutionally required for these facts to date.] Justice Scalia reasserts his position that Apprendi would apply. Justice Breyer said it would then apply to restitution as well. Ditto for forfeiture. How about juvenile v. adult court?

Justice Stevens asks if any pre-Apprendi cases support defendant's position. Lannet cites Jones v. United States. Justice Stevens says, "All the cases in Apprendi dealt with elements of the crime and that sort of thing." Is he ready to say, "Stop the Apprendi train; I want to get off"?

Justice Ginsburg asks how the legislature could possibly restrain judicial discretion. She doesn't think putting it before the jury in the guilt phase is a good idea.

Justice Souter asks what abuse would be prevented by defendant's proposed rule.

Justice Stevens asks about harmless error. "I mean, it seems to me patently obvious that both of the statutory conditions were fully satisfied."

Justice Ginsburg asks if the legislature could fix the problem just by deleting the fact-finding requirement. [That, BTW is exactly what happened in California after Cunningham.]

On rebuttal, Williams notes that the state is not asking for any cutting back of Apprendi, just limitation of it to the contexts where the Court has already applied it. No questions.

This looks pretty good for the state. Justices Stevens and Ginsburg, both essential votes for the extension of Apprendi in Booker, seem to be reluctant to extend it this far.

1 Comment

Maybe I am missing something, but this one seems pretty easy. Isn't there a pretty fundamental distinction that any man on the street can understand between the length of a sentence and the time at which said sentence begins? Now, I understand that an episode of criminal conduct may pose some issues, but that doesn't make the workaday distinction less sound. Perhaps Justice Scalia ought to admit to himself there is a difference between the maximum sentence authorized by a jury finding for a crime and the factual predicate for a consecutive sentence, even though there are fact patterns where the boundaries can be blurry.

Ginsburg's enigma is a distraction. The issue here is not just the substantive outcome or the response of a legislature, but rather the constitutional allocation of powers to judge and jury. The jury's factfinding has to authorize the max sentence. That's a pretty easy rule (aside from this application) to follow.

I also don't think that Scalia is wrong for abandoning the history. The jury trial right, if it is to mean anything, means that you cannot have a system whereby a piece of a sentence for a crime is wholly-dependent on judge fact-finding. And if a person has a right to a jury trial, doesn't he have the right to have a jury pass on every element that would increase his sentence? We wouldn't tolerate a regime where the elements of murder were committed to a jury, except mens rea, would we?

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