Another revolution on sentencing?
Just as the Supreme Court set off a revolution in criminal sentencing with its 2000 ruling in Apprendi v. New Jersey, on Friday it set the stage for another — tied directly to the Apprendi precedent. The Court agreed to consider overruling one of its own precedents that allowed judges, rather than juries, to rule on facts that would allow more than a minimum sentence to be imposed. Until now, the “Apprendi rule” had only insisted that juries find the facts to raise a sentence beyond a maximum, not a minimum.
At issue is the continuing validity of the 2002 decision in Harris v. United States, in which the Court was widely splintered. The strength of that ruling as a precedent now appears to depend upon whether the Justice who cast the fifth vote to make a majority for the result there – Justice Stephen G. Breyer — has changed his mind. There have been signs that he may have done just that. In any event, there were at least four votes to face the issue anew.
The one facet of this issue that might limit the scope of an overruling of Harris is whether a decision that a jury must find the facts necessary to raise a sentence only applied to an enhancement of a minimum that was mandatory, but not necessarily to any increase in the floor sentence within a range. The Court might have to confront, if it were to cast Harris aside, whether such a ruling would apply across the board to enhanced sentencing, above any floor even if not mandated as the minimum. The new case does involve a mandatory minimum.
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.
One factor that emphasized the importance of the Court’s grant of review was that the Justices had repeatedly refused other requests in recent years to reconsider its ruling in Harris. In that decision, a plurality of Justices had decided that the Apprendi rule on the jury’s role in enhanced sentencing did not apply to increases in the minimum, or “floor,” of a sentence when there was a finding by the judge that a gun was brandished during a crime. Finding that a gun had been “brandished” was a sentencing issue, not a necessary element of the crime, the plurality ruled. In fact, the Apprendi decision had said explicitly that it had to be the jury that found the facts necessary to support an increase in the maximum sentence.
Justice Breyer had gone along with that view in a separate opinion in the Harris case, saying then that he was not persuaded that there was no difference between raising a minimum sentence or enhancing a maximum one, although he questioned its logic. In a later case, though, he had expressed doubts about that distinction. Breyer’s expression of doubt about it obviously has prompted criminal defense lawyers to go to the Court with repeated pleas to reconsider Harris. Until Friday, however, the Court had routinely turned aside such pleas — as Solicitor General Donald B. Verrilli, Jr., had pointed out in June in urging the Justices to bypass the Alleyne case.
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 urging the Court not to reopen the issue of Harris‘s validity, the Solicitor General argued that the Court should adhere to that precedent, especially because judges, prosecutors, and defense lawyers have relied on the distinction, and it would be seriously disruptive to change the constitutional rule now.
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.
Recommended Citation: Lyle Denniston, Another revolution on sentencing?, SCOTUSblog (Oct. 5, 2012, 3:44 PM), http://www.scotusblog.com/2012/10/another-revolution-on-sentencing/