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Apprendi Sprawl Frozen in Ice

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When the Supreme Court announced Apprendi v. New Jersey, 530 U.S. 466 (2000) nine years ago, the result seemed sensible. The "sentence enhancement" in that case operated for all practical purpose like a higher degree of offense, and degrees were traditionally decided by the jury and had to be proved beyond a reasonable doubt. Yet in the years that followed, Apprendi spread to other areas. In Ring v. Arizona, 536 U.S. 584 (2002), the Court extended the rule to death penalty eligibility circumstances, an artificial construct with no common law equivalent that states enacted only because the Court itself forced them to. In Blakely v. Washington, 542 U.S. 296 (2004) and United States v. Booker, 543 U.S. 220 (2005), the Court threw a monkey wrench into sentencing guidelines systems enacted in the 1980s in a bipartisan consensus to reduce the sentencing disparity that arises in discretionary systems, where the luck of the draw on judges may count more than the legitimate factors of the defendant's crime and criminal record. In Cunningham v. California, 549 U.S. 270 (2007), the Court ruled that the state violated the Constitution by imposing a fact-finding requirement for the defendant's benefit, prompting the Legislature to repeal the requirement.

In Oregon v. Ice, the Supreme Court of Oregon carried the "no good deed goes unpunished" principle of Cunningham one step further. Today, the U.S. Supreme Court decided that was one step too far in a 5-4 decision that scrambles the usual ideological lines.
There is no dispute that a state may leave the decision of consecutive or concurrent sentences entirely up to the judge, with no findings of fact required.  Oregon has limited consecutive sentencing to those cases where specific facts are found regarding the two crimes, such as harm to different victims or a different kind of harm to the same victim. Because Oregon has chosen to provide this additional protection to the defendant, Ice claimed that the Constitution further requires that the facts be found by the jury. Justice Ginsburg, writing for the Court, rejected the claim.

All agree that a scheme making consecutive sentences the rule, and concurrent sentences the exception, encounters no Sixth Amendment shoal.  To hem in States by holding that they may not equally choose to make concurrent sentences the rule, and consecutive sentences the exception, would make scant sense.  Neither Apprendi nor our Sixth Amendment traditions compel straitjacketing the States in that manner.

The majority was comprised of the uncommon coalition of Ginsburg, Stevens, Kennedy, Breyer, and Alito. The pro-defendant dissent consisted of three Justices who are generally among the most favorable to the prosecution -- Scalia (writing), Roberts, and Thomas -- along with Souter.

The majority and dissent divide on the question of whether the Court should adhere literally to the words of the Apprendi line of cases or whether it should go back to the principles underlying those decision to determine if the proposed extension is really mandated by them.  The majority looks at the history and notes that juries historically had nothing to do with the concurrent versus consecutive sentencing decision. Hence, extension of Apprendi to this area is not compelled by the underlying purpose of preserving the jury's historical role against encroachment. That is the approach of CJLF's brief as well. As Justice Frankfurter said long ago, "But the ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it."  Graves v. New York, 306 U. S. 466, 491-492 (1939) (concurring opinion).

Alas, Justice Scalia disappointingly declares history to be irrelevant and insists on rigid adherence to the artificial construct of facts that increase the sentence, without any regard to how those facts increase the sentence. It is doubly disappointing to see Chief Justice Roberts joining this "history be damned" opinion.

Justice Scalia also fulminates that the majority opinion is based in large part on arguments put forward by dissenting opinions in earlier cases in the line. An argument is not wrong simply because it is contained in a dissent. A dissent's arguments were simply not weighty enough, in the opinion of the majority, to outweigh the argument pointing to the opposite result in that case. In another case where the contrary arguments are weaker, those same arguments may well prevail. That is what happened here. Consecutive sentencing bears no resemblance whatever to a higher degree of offense. It does not present the danger of encroachment of the jury's role through redefintion of elements as sentencing factors. Hence, the valid arguments presented by prior dissents are weighty enough to overcome the weaker case for extending Apprendi yet one more step from its origins.

Update: While I am disappointed in Chief Justice Roberts' vote, Doug Berman is equally and oppositely disappointed in Justice Stevens'.

1 Comment

Here's an interesting thought experiment, let's say Apprendi never existed and the problem Apprendi addressed never existed, would the Court, on the facts in Ice, have gotten four votes for Ice's position? Probably not.

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