Analysis

With Justice Stephen G. Breyer waging, seemingly alone, a rearguard effort to limit juries’ fact-finding role in determining criminal sentences, the Supreme Court on Tuesday displayed a strong inclination to stay on course in the eight-year effort to add to the jury’s power.  This time, if that impression holds, the Court would let the jury — at least in a dozen or so states — settle the facts on how multiple sentences would have to be served: together, or back-to-back.

In Oregon v. Ice (07-901), the Court once again was exploring the meaning of the 2000 decision in Apprendi v. New Jersey, assigning to the jury rather than the judge the duty of finding the facts needed to support more severe punishment for a crime.  The maximum punishment, the Court has made clear since then, is only that which is supported by facts settled by the jury.

The Oregon case appeared to give the Court a clearcut choice: follow long-standing tradition, and leave it to the judge’s discretion to find the facts that support making multiple sentences consecutive or concurrent, or abandon tradition and assign that to the jury.

While the Court leaned noticeably toward the jury option, one potential question went unanswered in the argument Tuesday: would the jury have to have that role as a general constitutional proposition, or have it only in states that had laws requiring that multiple sentences for two or more crimes normally be served concurrently unless some added fact supported consecutive sentencing?  Perhaps as many as 13 states have such laws, so if their existence was necessary for the jury to have the fact-finding  task to make sentences consecutive, that would give such an expansion of Apprendi less impact.  Oregon has that kind of law, but Justice Antonin Scalia suggested that it was “unusual.”

Justice Scalia, who has made himself the most vigorous defender of the jury’s role in sentencing, left little doubt that he sees consecutive sentences as a harsher penalty than concurrent sentences, at least when a state has made concurrent sentences the priority choice.  Told repeatedly by Oregon’s solicitor general, Mary H. Williams, that Apprendi and sequel rulings have had nothing to do with the consecutive sentencing issue and that extending them would run against history, Scalia simply responded that the Court has not let past practice get in the way of buttressing the jury’s role.  “So what?” he said dismissively to the argument about history.

In fact, Scalia said, a fact that leads to consecutive sentences “can turn out to be the most significant fact for the defendant.  I mean, it could lengthen his sentence enormously.  It’s more important than many of the other facts that we leave to the jury.” (Indeed, in the case of Oregon inmate Thomas Eugene Ice, it did make an enormous difference: 340 months, instead of 90.)

Justice David H. Souter, who has been with Scalia in enhancing jury power, dismissed the history argument as beside the point. Apprendi, he said, changed the legal landscape, and it has to be applied “to this new situation.”  The Court was concerned, he added, about the jury losing control as a result of “manipulation” of sentences, thus removing the jury as “a buffer” between the state and the individual.  In the consecutive sentencing context, Souter sugested, the jury might lose control over the ultimate length of a prison sentence.

Justice Breyer tried to stem the flow of the argument by raising the question of whether a ruling giving the jury a role in the consecutive sentencing context would also mean it would have to play a similar role in punishment that takes the form of, say, restitution, forfeiture, probation, mandatory treatment for drug abusers, and trying a juvenile as an adult.  “I can think of five or six where there might be a factual finding necessary” to one of those different forms of sentencing.  The Oregon lawyer agreed, saying “we are litigating some of those very questions” in light of the Oregon Supreme Court ruling on consecutive sentencing.

When Justice Scalia countered that a ruling could be confined to sentencing, Justice Breyer retorted that sentencing includes restitution and probation.  “I mean, there is a broad definition of the word ‘sentence’ in the law which includes some of the things that I mentioned, though not all,” Breyer commented. (The impact of the Court’s jury-role decisions on restitution as punishment is now pending in a recently filed case, Lauersen v. U.S., 08-416.)

Thomas Ice’s lawyer, Ernest G. Lannet, senior deputy public defender in Salem, Ore., portrayed the case as a simple application of Apprendi‘s “bright-line rule” — that is, a judge may impose no more criminal punishment than is supported by jury-found facts. Once a defendant is entitled to a concurrent sentence, Lannet suggested, any facts needed to switch it to a consecutive sentence are up to the jury.

Justice Ruth Bader Ginsburg suggested, however, that the Oregon case presented something of an “enigma.” By making concurrent sentences the norm, she said, the state was seeking to put restraints on the judge because it wanted to be “more defendant-friendly.” And yet, she added, Ice was claiming that this was unconstitutional.  Lannet did not solve the “enigma” for her, merely explaining the history behind the state’s choice to limit consecutive sentencing.

Lannet did concede that one of the implications of his argument, and a fact that is now occurring in Oregon, was that there would in many instances be a need to have separate trial proceedings to accommodate an enhanced jury role in sentencing — that is, a trial at which the jury would find facts and determine guilt, and a sentencing proceeding in which the jury would find the facts necessary to support a particular punishment.  That prospect might be a negative for some of the Justices; for example, Justice Anthony M. Kennedy seemed a bit concerned about it.

At any point of potential difficulty for Lannet, Justice Scalia rushed in to shore up his argument, reciting anew the notion that once a criminal defendant is given “an entitlement,” that means “it has to be found by the jury.”

Lennet did not hesitate when Justice Breyer explored some of the implications of ruling in Ice’s favor. He said that, if a fact were necessary to support forfeiture of a car as “necessary for the punishment,” that would have to have been found by the jury. 

Breyer, of course, remained troubled: “If we are going to depart from what the Framers did in fact foresee in this kind of case and we do accept Apprendi as something different from what they did apply, does that require us to depart as well in all these other cases which have the kinds of difference that you have listened to?”  The Court, Lannet responded, already has done so.

Lannet, in fact, was even able to summon an argument that pre-Apprendi history was on the side of shoring up the jury’s power.

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