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Argument preview: Back to the sentencing puzzle

At 10 a.m. Monday, the Supreme Court will hold one hour of oral argument on the role of judges and juries when the law requires a minimum sentence after conviction of a specific crime, in Alleyne v. United States (docket 11-9335).  Arguing for the convicted individual, Allen Ryan Alleyne, will be Mary E. Maguire, an assistant federal public defender in Richmond, Virginia.  Representing the federal government will be Deputy U.S. Solicitor General Michael R. Dreeben.


For several decades, the Supreme Court has been struggling — and often has been deeply divided — over how to sort out the roles of juries and judges in the process of criminal sentencing — specifically, who gets to decide the facts that bear upon how severe a sentence may be?  Much of the time, the focus has been on whose duty it is to decide the facts that will support a sentence that is longer than the maximum specified for a given crime.  Since the Court’s decision in 2000 in Apprendi v. New Jersey, the Court majority has ruled repeatedly that, if a fact is going to lead to an enhanced sentence, prosecutors have to prove that to the jury and must do so by satisfying the toughest legal standard: beyond a reasonable doubt.

But the Apprendi decision left intact older rulings by the Court that a judge, applying the least-demanding standard (preponderance of the evidence), had the authority to decide to increase a sentence above the minimum.  That involves what are called “mandatory minimum sentences.”  A legislature decides that, for some crimes, the convicted individual should have to face the prospect of a minimum sentence that is higher than the floor while still below the maximum.  The theory is that something about a specific crime made it more serious and thus deserving of more punishment. This principle was established clearly by the Court in the 1986 decision in McMillan v. Pennsylvania.  It has since been reaffirmed, but by a shakier majority, and the Court is now set to reconsider the issue.

The Court is now confronting, in the case of Alleyne v. United States, whether to extend the Apprendi view of the central role of the jury in finding sentencing facts to the realm of the mandatory minimum sentencing.  Justice Clarence Thomas has been arguing for years that, constitutionally, there should be no difference between finding facts to support a sentence beyond a maximum, and finding facts that will push a sentence above a minimum, or floor; either way, he has said, the convicted individual is exposed to greater punishment than is otherwise prescribed, so both should depend upon the jury as fact-finder, in order to satisfy constitutional due process.

Thomas, though, has stated that view as a dissenter, most notably in the 2002 decision in Harris v. United States.   There, an uncertain majority (four Justices plus a reluctant fifth) stayed with the position declared in the McMillan decision sixteen years earlier, and upheld the authority of a judge to find by a preponderance of the evidence the facts necessary to support a mandatory minimum sentence.

For years, though, defense lawyers have been urging the Court to go along with the Thomas approach, and that idea has picked up the support of Justice Stephen G. Breyer (who provided, with some doubts, the fifth vote in Harris v. United States).   The Court had not granted any of those requests.   And the Justice Department relied upon those denials of review in urging the Court, during this Term, to continue to leave the Harris precedent unexamined.

Aside from Breyer, only two Justices remain from the Harris plurality: Justice Anthony M. Kennedy, who wrote the main opinion, and Justice Antonin Scalia.  (The others were now-retired Justice Sandra Day O’Connor and the late Chief Justice William H. Rehnquist.)  Along with Thomas, the only other dissenter still serving is Justice Ruth Bader Ginsburg (they were joined by since-retired Justices David H. Souter and John Paul Stevens).

On October 5, the Court agreed to reexamine Harris, granting review of this simple question: “Whether this Court’s decision in Harris v. United States…should be overruled?”

At issue in Harris was whether added punishment is based on a finding of an element of the crime, or rather on only a decision about a sentencing factor.  Elements of a crime have to be charged in the indictment, and found by a jury, beyond a reasonable doubt, but sentencing factors are for the judge to resolve, using the relaxed preponderance standard.   The majority provided an interpretation of the federal law providing that, if an individual is convicted of carrying a gun during a serious or violent crime, that individual would receive — in addition to the penalty for that specific crime — a separate minimum five-year sentence.  (The mandatory minimum would rise to seven years if the gun had been “brandished” — that is, used in a menacing way, and to ten years if the gun had actually been fired.)

The Court majority upheld that law even though, in the specific case, the indictment had not charged William Joseph Harris with brandishing a gun while selling drugs out of his pawnshop.  He had been charged, though, with carrying a gun during that crime.   The trial judge in the case, however, found by a preponderance of the evidence that Harris had brandished the gun, and imposed an added-seven year sentence.  The Fourth Circuit Court ruled that “brandishing” was only a sentencing factor, not an element of the crime, that this satisfied the Court’s McMillan precedent, and that it did not violate Apprendi.

Justice Kennedy’s plurality opinion agreed with that interpretation of the “brandishing” issue, so that factor did not need to be charged in the indictment, decided by the jury, and decided by a reasonable doubt test.  That group of four Justices also concluded — with the support of Justice Breyer — that the Apprendi line of cases did not apply to mandatory minimum sentences, but only to mandatory maximums.   So long as the added punishment imposed by the judge was within the specified range of potential sentences, the plurality said, it could be imposed based upon the judge’s finding alone.    Since then, however, Breyer has joined Justice Thomas in urging the Court to reexamine Harris, and that is what the Court plans to do in Alleyne v. United States, a petition filed in March of last year and granted — over the Justice Department’s objection — near the opening of the Term.

Allen Ryan Alleyne of Richmond, Virginia, along with his girlfriend, Valencia Jones, allegedly planned to rob the owner of the convenience store where Valencia worked.  The plan was to rob the manager, Pat McLaughlin, as he was leaving the store with the day’s proceeds.   On October 1, 2005, Alleyne and an accomplice (who has never been identified and has not been prosecuted) decided to go ahead with the plan, after watching McLaughlin’s daily movements.

They rented a car, drove ahead of McLaughlin as he left the store, and then pulled over.  Faking car trouble, they flagged down McLaughlin.  The accomplice, who had been driving, got out of the car, walked over to McLaughlin’s car, pointed a gun at the store manager, and demanded the money bag, which contained $13,201.  Alleyne slid over into the driver’s seat, and drove away with the accomplice.  (Valencia Jones testified against Alleyne at the trial; she was later convicted for her role in planning the robbery and taking some of the proceeds.)

Alleyne was indicted for robbery and one count of using or brandishing a gun during the crime.  The jury convicted him of robbery, and of possessing a gun, but did not find him guilty of brandishing the gun.   The judge sentenced Alleyne to forty-six months in prison for robbery.  Then, after finding that Alleyne would have known that his accomplice would brandish a gun, tacked on another eighty-four months (seven years), making a total prison sentence of 130 months.   The trial judge said he was bound by the Harris precedent, and his conclusion on brandishing was based upon a preponderance standard.  The Fourth Circuit Court, also feeling bound by Harris, upheld the full sentence, including the added seven years.

Petition for certiorari

Public defenders in Richmond took Allleyne’s case to the Supreme Court, urging it to overrule Harris and to apply the same constitutional limits that restricted sentencing judges’ power to enhance the punishment beyond a maximum to the situation when the judge imposed a mandatory minimum, above the floor of the range specified in the law.   The petition took note of Justice Thomas’s efforts to reopen Harris, and Justice Breyer’s movement toward that position.

The petition gave three reasons why the Court should hear the case: that the brandishing issue has been fully litigated in this case and in other lower courts, that this case is essentially a twin of the Harris case that involved the very same gun crime punishment law, and that the judge had applied the seven-year minimum only because the judge felt bound by Harris to make the finding despite the jury’s refusal to convict on brandishing.

Lower courts, the petition noted, have no power to second-guess Harris, but the Supreme Court does, and should now resolve its continuing status.   Even the judge in his case, Alleyne’s counsel argued, “understood the primacy of the jury’s role,” and even expressed his reluctance to overrule the jury on the brandishing point.

The Justice Department noted that in at least five cases, some very recently, the Court had denied petitions “arguing that Harris should be overruled or asserting that Harris already has been overruled implicitly.”   The brief in opposition said that nothing had changed since the Harris decision in 2002, and it noted that the Court in Harris had reaffirmed its position on mandatory minimums even in the face of an argument that Apprendi required a different approach.   The brief quoted the Court plurality as having said that judges had always considered aggravating circumstances that justified added sentences that were still within the range set by law.   The Court should feel still bound by Harris, it argued.

With the Court’s membership substantially changed since 2002, there obviously were four votes to take a new look at the precedent.

Briefs on the merits

In an ambitious brief on the merits, Alleyne’s lawyers argued not only that Harris be cast aside, but that McMillan, too, be overruled, on the argument that both were wrong when decided.   McMillan, it contended, was “a break from the historical treatment of facts triggering increases in the absolute limits of punishment.”   The Court could have rectified that in Harris, but did not, the brief commented, and it suggested that the Court should now do so, without being guided by the doctrine of stare decisis to stand by Harris.

As expected, the brief interpreted Apprendi as broadly as possible, contending that it stood for the proposition that facts that increase the prescribed range of penalties facing a defendant must be submitted to a jury and proven beyond a reasonable doubt.   Even when Apprendi was decided in 2000, it was clear, the brief said, that the Court one day would have to revisit its McMillan ruling.

Its grievance with McMillan (which the lawyers obviously had concluded needed to be undercut if Harris was to be overruled) was based on a reading of history, finding in that background a “deeply rooted understanding that juries alone can find facts that expose criminal defendants to additional punishment.  That understanding is older than our nation, and the Framers embedded it in the Sixth Amendment.  It is equally well-settled that facts that must be proved to the jury must be proved beyond a reasonable doubt, a right protected by the Fifth Amendment.”

To the basic point in both of the challenged precedents, that mandatory minimums are different from going beyond maximums, the Alleyne brief asserted that a mandatory minimum sentence does in fact change the range of permissible sentences by increasing the punishment that would otherwise be available to the judge to impose.   Once it is understood that a fact that moves the sentencing above the floor, then it follows that greater punishment results, and that must be attributable to a finding by a jury beyond a reasonable doubt, the brief argued.

As a back-up argument, Alleyne’s counsel suggested that the Court could avoid a constitutional ruling by interpreting the gun-punishment law at issue either to declare that the law is aimed at three separate crimes that have fixed-term sentences, instead of maximums up to life, or to read it as establishing three separate crimes with “brandishing” and “discharging” as elements of the crimes.   The brief said that the first alternative is preferable, and would be more favorable to Congress’s legislative product, but either interpretation would overturn Alleyne’s sentence.

The Justice Department’s brief on the merits relied heavily upon the stare decisis argument, contending that both McMillan and Harris have been entirely justifiable reactions to the “twentieth century innovation” of mandatory minimum sentencing laws that were “designed to promote consistency in sentencing and establish legislative restraints on judicial discretion.”  Harris, it argued, followed McMillan faithfully on the constitutional point, and explicitly rejected the contention that McMillan and Apprendi could not be reconciled, the Department asserted.

What Apprendi is all about, the government filing said, is preventing a judge from increasing the range of potential punishment.  Its rationale, therefore, has no bearing upon a judge’s authority to impose a specific sentence that remains within the range laid out by the legislature, the brief went on.  When a judge imposes a mandatory minimum, the brief added, that does nothing to disturb the protection that Apprendi provided, because the sentence “cannot exceed the maximum based on the facts found by the jury.”

More broadly, the government argued that “judicial factfinding in a discretionary system” does not offend the right to a jury trial, because a judge — when staying within a specified range — is determining only the facts necessary to select a sentence that is contemplated by the range itself.  “Such judicial factfinding raises no constitutional concern because the facts found by the jury authorize the sentence imposed….Once the jury verdict authorizes a particular maximum sentence, the finding of a fact — here, for example, brandishing — that raises the minimum sentence within the authorized range poses no threat to the jury’s power.

The government sought to answer Alleyne’s arguments about reinterpreting the brandishing law in order to avoid having to decide the constitutional question.  Those very arguments were made in Harris as to this specific law, and were rejected, the brief said.

In strongly defending the past precedents, the government added a policy argument: in the wake of both of those rulings, in 1986 and 2002, Congress and state legislatures have relied upon them to pass numerous mandatory minimum sentencing laws, so overturning the precedents at this point “could provoke unpredictable legislative responses with potentially adverse consequences for defendants, prosecutors, and courts.”

Alleyne’s side of the case has drawn the support of a variety of criminal defense and civil liberties organizations, sentencing reform advocates, and the Families Against Mandatory Minimums, an advocacy organization, which contends that such sentencing regimes result in “inflexible and excessive penalties.”   The federal government has the support of fifteen states, undertaking primarily to counter Alleyne’s arguments that mandatory minimums run counter to history.


With Justice Thomas leading the charge, Allen Alleyne would appear to start with a considerable advantage.  The Apprendi rationale, with its emphasis on the historic role of the jury, has strong support within the Court, and Thomas has done more than any other member of the Court to dismiss as artificial the attempt to limit Apprendi to the realm of exceeding maximums.   And, with the likely support of Justices Breyer and Ginsburg, Thomas would appear to be within reach of a majority even if he could not draw either Justice Kennedy or Justice Scalia away from their positions in Harris.  All he would need was a split among the four Justices who have joined the Court since Harris: Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., Elena Kagan, and Sonia Sotomayor.

It is already clear, from the grant of Alleyne’s petition, that there are four votes for reexamining the strength of the Harris precedent.  That is especially important, in view of the fact that the case was granted after repeated failures of previous attempts to reopen the issue.

Although Alleyne’s counsel have sought to raise in the briefing, for the first time, non-constitutional ways to decide the case by reinterpreting the statute, the Justice Department has made a strong counter-argument that the Court does not usually reconsider statutory interpretations on the premise that Congress could change them if it wished so the Court should not do so itself.  That puts the emphasis, then, on the constitutional question and, while the Court does not lightly overturn a constitutional precedent, it will do so if it has become persuaded that time and other decisions have undercut its reasoning and intellectual force.

In the end, it very likely will depend upon how a majority understands Apprendi after having had ten years of experience with it since Harris.

Recommended Citation: Lyle Denniston, Argument preview: Back to the sentencing puzzle, SCOTUSblog (Jan. 12, 2013, 12:02 AM),