Please ensure Javascript is enabled for purposes of website accessibility

US Supreme Court takes up sentencing factors case

US Supreme Court takes up sentencing factors case

Listen to this article

In a case that raises the question of whether judges, rather than juries, can constitutionally decide factors that could trigger an increase in the minimum sentence, the justices of the U.S. Supreme Court seemed reluctant to shake up a sentencing scheme that Congress and the courts have relied upon for more than a decade.

The case of Alleyne v. U.S. involves the conviction of Allen Alleyne on robbery and firearm charges in a Virginia federal court. At sentencing, the judge determined that Alleyne brandished a firearm in the commission of the robbery, a finding that triggered an automatic minimum sentence of five to seven years under a federal sentencing statute.

The defendant appealed, arguing that his Sixth Amendment rights were violated because the judge, not a jury, came to the conclusion that he brandished a firearm.

But the 4th Circuit affirmed the sentence, citing Harris v. U.S., which held that the determination of whether a defendant “brandished” a gun for sentencing purposes was not an element of a crime that must be determined by a jury.

The defendant petitioned the Supreme Court for certiorari to decide whether Harris should be overruled, and the Court granted the petition.

Stare decisis and judicial discretion

As Mary M. Maguire of the Federal Public Defender’s Office in Richmond, Va., began her argument on the defendant’s behalf that only juries should constitutionally be allowed to determine facts that could lead to a higher sentence, Justice Sonia M. Sotomayor jumped in.

“Could you address an issue that’s very important to me, the one of stare decisis?” Sotomayor asked.

Maguire explained that Harris was not precedential because it was a plurality decision.

“I can think of some pretty important decisions of this Court that were not the result of a majority opinion,” said Justice Samuel A. Alito Jr. “Do you want us to adopt that as a blanket rule?”

“No, [but] in constitutional questions like this, stare decisis is at its weakest,” Maguire said.

Justice Antonin G. Scalia pointed out that Harris wasn’t the only case standing in the way of the defendant’s argument. In is 1986 ruling in McMillan v. Pennsylvania, (477 U.S. 79), the Court held that possession of a firearm can be treated as a sentencing element for a court rather than a factual element of a crime, which would be reserved for a jury.

“You’ve distinguished Harris. How do you distinguish McMillan?” Scalia asked.

Maguire explained that the focus of McMillan wasn’t the Sixth Amendment.

“McMillan was mostly concerned about … a due process claim,” she began.

“I don’t care about ‘mostly,’” Scalia replied. “We don’t decide cases on what a case ‘mostly’ says. We decide on what it says.”

When Maguire argued that the judge’s ruling violated the principles of Apprendi, Scalia questioned whether that was true, since a federal conviction for robbery carries a sentence of up to 10 years and the mandatory minimum for brandishing a weapon is seven years.

“On a practical level is it prevents the judge from even considering anything less than the seven years,” Maguire replied.

“That’s true, but you must acknowledge that that’s not the theory of Apprendi,” Scalia said. “The logic of Apprendi is that the jury has to decide it if it increases the sentence to which the defendant is exposed, not if it eliminates some discretion of the court. He’s exposed.”

Jury right vs. judicial leniency

Deputy Solicitor General Michael R Dreeben argued for the government that the judge’s finding that the defendant brandished a weapon was constitutional because “the Sixth Amendment protects a right to a jury trial; it does not protect a right to judicial leniency.”

“Not only does it not contradict any decision of this Court to allow the judge to make those findings, it doesn’t contradict the principle behind the jury trial right or the right to proof beyond a reasonable doubt,” Dreeben added.

“Why are juries incapable of figuring out whether a gun was carried or brandished?” asked Sotomayor.

Dreeben said his argument “not that juries are incapable of finding facts under [mandatory minimum] statutes. It’s that Congress has sound reasons for wishing to allocate that fact-finding to [judges in] the sentencing process, and that it is not unconstitutional.”

Justice Elena Kagan asked whether it would be different if brandishing carried a higher minimum penalty, such as 40 years.

“A very large gap,” Kagan said. “Is your argument still the same?”

“The constitutional argument is the same,” Dreeben replied.

Sotomayor expressed concern that allowing judicial findings to increase sentences would lead to the situation Apprendi was meant to prevent: legislators supplanting the role of the jury.

“We started out in a country where almost all sentencing was in the discretion of the judge,” Sotomayor said. “Whatever crime you committed, the judge could decide how to sentence you. Apprendi and its subsequent progeny” aimed at preventing that.

Scalia expressed a different concern: that sentencing decisions might be taken entirely out of the hands of judges.

“If we come out the way that the petitioner here urges us to do, legislatures will [say]: ‘If you brandish, you get seven years, period, with no discretion with the judge,’” he said. “That, it seems to me, is the greater risk.”

Polls

Should Steven Avery be granted a new evidentiary hearing?

View Results

Loading ... Loading ...

Legal News

See All Legal News

WLJ People

Sea all WLJ People

Opinion Digests