Analysis

After taking an obligatory look at whether the Supreme Court should feel bound by its past precedents, the Justices on Monday moved into an issue clearly of more interest to them: what do they need to do to protect the role of juries in laying the groundwork for criminal sentences? This inquiry turned into a combative discussion of just what the Court meant in 2000 in giving jurors a much-enhanced role when their verdicts trigger the fixing of sentences — the historic decision in Apprendi v. New Jersey.

The Justices who were opposed to expanding Apprendi argued that it dealt singularly with curbing judges who decide to impose a sentence beyond the top limit set by the legislature, while the Justices who seemed ready to push Apprendi a bit further contended that it should mean that increasing a convicted individual’s potential sentence should depend upon what the jury found, not the judge. There did not seem to be a middle ground. The two lawyers arguing the case were just as far apart.

The case of Alleyne v. United States (docket 11-9335) is a potentially historic dispute over the modern phenomenon of “mandatory minimum” sentences, and the roles of judges and juries in imposing such sentences. At stake are laws in which a legislature decides that some aspects of a specific crime justify a sentence longer than the bottom of the range (such as having or displaying a gun during the crime), and dictate an add-on sentence that is still within the range but may be more than the judge would otherwise have selected. They are defended on the ground that they make sentencing for such crimes more uniform, but the actual impulse seems to be to limit the discretion of kind-hearted judges to go easy in such cases.

A lawyer for the federal government, Deputy U.S. Solicitor General Michael R. Dreeben, defended the constitutionality of such laws by arguing that they have no effect on the right to a jury trial, and in fact are predicated upon the fact that the accused has no constitutional right to a lenient judge. But a lawyer for Allen Ryan Alleyne, Assistant Federal Public Defender Mary A. Maguire of Richmond, Virginia, countered that such laws are invalid because they intrude on the right to have a jury determine a harsher punishment and even then only when the jury finds the justifying facts beyond a reasonable doubt.

In a 2002 decision, Harris v. United States, a splintered Court ruled that there is no constitutional problem with “mandatory minimums” when a judge uses a relaxed legal standard to decide that a sentence above the floor must be imposed. While the Court has granted review in the Alleyne case to decide whether to overrule Harris, Monday’s argument in the case focused very little on Harris, and very heavily on Apprendi.

In Apprendi, the Court ruled that the Sixth Amendment right to a jury trial means that any fact that leads to a sentence longer than the maximum spelled out in law must be found to exist by the jury, applying the rigorous legal standard, beyond a reasonable doubt. In Harris, a plurality of the Court concluded that “mandatory minimums” do not run afoul of the Apprendi rule. That conclusion, though, is what is now at stake in the Alleyne case.

Justice Antonin Scalia, who supported the Harris outcome at the time, took the lead Monday in seeking to confine Apprendi to the situation where a sentence would go beyond a maximum. Under a “mandatory minimum” scheme, he said, the individual is “exposed” to anything within a range, not above it. So, he explained, the Sixth Amendment is not offended if the judge is required to pick a specific sentence within the range — something the judge could do anyway, even without being told to pick such a sentence by a “mandatory minimum” law.

Justice Stephen G. Breyer, who went along with the outcome in Harris but has since developed strong doubts about it, sought to put the focus on what “mandatory minimum” laws mean to the individual being sentenced. They mean, the Justice said, that the individual finds himself worse off because he gets a harsher sentence than he otherwise might have. The Court, he suggested, should not focus solely on the word “exposed,” as in what range of sentence is open to the judge, but rather on the actual impact from the perspective of the convicted individual.

Justice Scalia, noting that Breyer had long been a critic of the Apprendi rule itself, sarcastically remarked that “Apprendi is so bad he [Breyer] wants to extend it.” In fact, Breyer did seem to be in favor of giving Apprendi some broader scope. (That, by the way, is the view of Apprendi that Justice Clarence Thomas has repeatedly championed, but he did not ask any questions or make any comments during the Alleyne argument.)

Although Justices Sonia Sotomayor and Elena Kagan (neither of whom was on the Court when Harris was decided) seemed initially concerned about whether the Court would be justified in overruling Harris, both seemed as the argument proceeded to warm to the idea that the precedent may well have compromised the role of the jury in the sentencing process. Sotomayor wondered what steps the Court should be taking now to “protect the jury system,” and to avoid “the extreme” of having judges decide every fact necessary to support a sentence, or having the jury do so. Kagan made a studied effort to figure out what “principle” the Apprendi decision established, and did seem somewhat open to reading that principle more generously than the Harris Court had.

Justice Ruth Bader Ginsburg said comparatively little during the argument, but she was a dissenter in Harris, and clearly holds the view that “mandatory minimums” infringe on the jury function. It thus appeared that there was a fairly solid nucleus of Justices willing at least to seriously re-think the Harris precedent.

Of the other Justices, Anthony M. Kennedy, the author of the main Harris opinion, seemed noncommittal about the core issue of overruling it, although he suggested that doing so might make it more difficult for defense lawyers to figure out the strategy they would follow in trying to develop the facts that bore on sentencing. Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr. (who also were not on the Court when Harris was decided) asked tougher questions of the public defender than for the Justice Department’s lawyer.

Recommended Citation: Lyle Denniston, Argument recap: Just what does Apprendi mean?, SCOTUSblog (Jan. 14, 2013, 1:45 PM), https://www.scotusblog.com/2013/01/argument-recap-just-what-does-apprendi-mean/