SCOTUSwiki Preview: Oregon v. Ice

In the post below, Lyle offers a preview of tomorrow’s argument in Oregon v. Ice (07-901), a sentencing case from Oregon. For more on the case, including the briefs at both the certiorari and merits stage, visit the case page on SCOTUSwiki.

A test of the role of judges and juries in imposing sentences on individuals convicted of crimes – a test that has engaged the Supreme Court’s attention for eight years – continues as the Court turns its focus in Oregon v. Ice to sentences that have to be served back to back, instead of simultaneously.

Background

Since 2000, and the decision in Apprendi v. New Jersey, the Court has been moving each year to clarify the Sixth Amendment implications of criminal sentencing. The Apprendi decision brought about a virtual revolution in that field, with its mandate that any facts that lead to a higher sentence, if they go beyond the facts that justified a guilty verdict, cannot be decided by a judge, but must be determined by a jury. That, the Court said, is a critical aspect of the right to be tried by a jury. In the eight years since, the Court has scuttled or modified significantly a series of state and federal sentencing schemes, in the process expanding considerably the jury’s role in determining punishment.

As time has passed and precedents have built up, a controversy has been spreading among lower courts, especially state courts, over the impact – if any – that Apprendi would have on consecutive versus concurrent sentencing. In essence, the question they answered, in conflicting ways, is whether there is a necessary role for juries in opting for consecutive sentences. Put another way, the question is: do consecutive sentences amount to more severe punishment, so must the jury find the facts necessary to justify them?

Under common law traditions, trial judges had wide, often complete, discretion to determine how sentences were to be served. Some states, however, adopted laws to channel the judge’s use of discretion. In the process of analyzing those laws, state courts had to determine whether, and how, Apprendi applied.

The Supreme Court had shown little interest in answering that question. Nine times, it has turned aside appeals on that aspect of Sixth Amendment jurisprudence. It finally stepped in, with Oregon v. Ice (07-901).

That case involves Thomas Eugene Ice of Salem, Ore., an apartment house manager in Marion County. He was convicted of two counts of first-degree burglary, and four counts of first-degree sexual abuse. Prosecutors claimed that, on two separate occasions, he entered the apartment of a family in the complex, went into an 11-year-old girl’s bedroom, and each time touched her breast and vagina.

As a result, Ice faced trial on six separate offenses, the burglary offenses and the molestation counts. He was convicted on all six. Under Oregon law, sentences imposed for multiple crimes must be served concurrently, unless the judge finds that the offenses did not occur as part of the same course of conduct and that, even if they did, the two crimes resulted in separate harms. In Ice’s case, the judge found that the convictions for the two burglaries and four sex crimes arose out of separate incidents, and ordered consecutive sentences, totaling 340 months (28 years and four months). That total resulted from requiring that three of the sentences be served back-to-back.

Before the judge had selected the sentences, the Supreme Court decided the Apprendi case. Ice’s defense lawyers filed a new sentencing memo, arguing that the new decision meant that it was the jury’s task to consider any factors which could result in a more severe sentence. The trial judge rejected the argument, and followed prosecutors’ recommendations on consecutive sentencing.

Ice’s lawyers took the issue to the Oregon Supreme Court, which, in a 5-2 ruling, overturned the consecutive sentences and ordered new sentencing. It rejected the state’s argument that the Court’s recent Sixth Amendment decisions did not even apply to the question of how multiple crimes should be served. Any sentencing determination that results in a longer total sentence, based on a judge’s factual findings, violates the jury trial right.

Petition for Certiorari

The state of Oregon filed its appeal on Jan. 4, raising the single question about the Sixth Amendment issue in the context of how sentences are to be served. The Court granted review on March 17 and slightly modified the question it would address (without changing the substance), putting it this way: “Whether the Sixth Amendment, as construed in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004), requires that facts (other than prior convictions) necessary to imposing consecutive sentences be found by the jury or admitted by the defendant.”

The appeal made two arguments: first, it cited the deepening split over the issue among state courts, and urged the Court to “establish a uniform application of the federal constitutional jury-trial right for all states,” and, second, it argued that the state Supreme Court ruling was “an unwarranted extension of Apprendi and Blakely beyond what this Court’s reasoning supports.” Those precedents, it contended, focus on sentences for individual offenses, not on total punishment.

Ice’s lawyers contended in response that the split was not nearly as wide as the state had argued, and noted the Supreme Court’s pattern of denying all appeals seeking to raise the consecutive sentence question in the Apprendi context. Very few states, the lawyers asserted, depart from the complete discretion approach of the common law.

Analysis

The Court, since Apprendi, has not been entirely consistent in shifting the task of choosing sentences – that is, resolving the facts underlying stiffer sentences — from judges to juries. Indeed, in the federal sentencing arena, it began by shoring up the jury’s role under the Sixth Amendment even while simultaneously retaining the Sentencing Guidelines system – albeit in advisory rather than mandatory form. And, since then, it has given back to judges some of the discretion they had lost under the Sentencing Guidelines even while leaving the Guidelines more or less intact. Part of that is the result of the Court’s continuing deep division in its members’ perceptions about Apprendi and its sequels. This makes it significantly more difficult to predict how any new post-Apprendi issue is going to be resolved.

If the Court reacts sympathetically to the state of Oregon’s argument that its state Supreme Court has stretched the meaning of Apprendi and moved it into sentencing territory where, as the state insists, the Sixth Amendment has never applied, some Justices may hesitate to embrace that supposed expansion. Another factor is that the Justices most responsible for enhancing the jury’s sentencing role are the conservative Justices who believe that the Constitution gets much of its meaning from common law traditions. The tradition of judge-centered discretion on how sentences are to be served could help the state’s cause with those Justices.

If the Court sees consecutive sentences as harsher because they do, indeed, lengthen the time to be served, as Ice’s attorneys have argued and the Oregon Supreme Court found, that could bolster the jury’s role in finding the factual foundations for the added years behind bars.