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The Right to a Jury Trial Finally Applies to Mandatory Minimums

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In 2000, the Supreme Court held (in an opinion by Stevens, joned by Scalia) that the Sixth Amendment requires that sentencing be based only on factors that have been proven to a jury or adduced in a plea agreement. Two years later, however, in United States v. Harris the Court rather inexplicably narrowed this requirement in an opinion that, as Justice Thomas wrote in dissent, “rests on either a misunderstanding or a rejection of the very principles that animated Apprendi just two years ago.” Harris was given a mandatory minimum sentence based on a factor (brandishing a firearm) that was not proven to a jury or adduced in a plea. Eight justices in Harris logically cast the same votes, but for some mysterious reason Scalia switched sides and upheld the sentence.

Today, the Supreme Court decided to eliminate what was always an inexplicable anomaly, as Harris was overruled. Justice Thomas again noted the obvious incompatibility of Apprendi and Harris:

In Apprendi, we held that a fact is by definition an element of the offense and must be submitted to the jury if it increases the punishment above what is otherwise legally prescribed.  While Harris declined to extend this principle to facts increasing mandatory minimum sentences, Apprendi’s definition of “elements” necessarily includes not only facts that increase the ceiling, but also those that increase the floor. Both kinds of facts alter the prescribed range of sentences to which a defendant is exposed and do so in a manner that aggravates the punishment.  Facts that increase the mandatory minimum sentence are therefore elements and must be submitted to the jury and found beyond a reasonable doubt.

While the appointments of Barack Obama and George W. Bush voted in the expected pro- and anti- civil liberties direction, the key swing in this case was Breyer. Breyer reiterated his disagreement with Apprendi as an initial matter, but argued that because it remained in force “the law should no longer tolerate the anomaly that the Apprendi/Harris distinction creates.” As Sotomayor’s concurrence points out, because of this anomaly stare decisis can’t be seen to have much force in this particular case, pace Alito’s dissent.

I note also that, as in Harris, the World’s Last Principled Jurist Antonin Scalia has declined to write and explain his inexplicable vote pattern, which is probably sound judgement.

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  • sparks

    I note also that, as in Harris, the World’s Last Principled Jurist Anontin Scalia has declined to write and explain his inexplicable vote pattern, which is probably sound judgement.

    It’s that or the Vaffanculo Effect. Or both.

  • Anon21

    Another in a series: Clarence Thomas Isn’t the Stupid, Hackish Caricature That Lazy Liberals Who Don’t Really Follow the Supreme Court Make Him Out To Be.

    • Murc

      Eh? I know few people who think Thomas is either stupid or a hack. I certainly don’t think that.

      I just think the constitutional principles he espouses are vile and make him unqualified to judge a talent show, let alone serve on the Supreme Court. The fact that they do seem to be actual principles (he’s certainly much more consistent than Scalia or Alito, whose lodestar is “what’s good for conservatives?” rather than “is this an effective and consistent rubric for interpreting the constitution?”) and that he occasionally gets one right is irrelevant. Scalia occasionally gets one right to.

      • Anon21

        Eh? I know few people who think Thomas is either stupid or a hack. I certainly don’t think that.

        Wander on over to Daily Kos or TPM (or better yet, don’t) and you will find plenty of people saying he just votes however Scalia tells him to, is too stupid to speak up during oral argument, etc.

        As to the rest: I agree with you that Alito never gets one right, or at least hasn’t so far.

        • Walt

          I can’t imagine a more important question that resolving Thomas’ position on the hack versus wacko continuum.

          • Anon21

            It’s not super-important, but a lot of the dumb-left criticism of Thomas has more than a whiff of racism. You’ll sometimes hear him called an affirmative-action Justice and that sort of thing. Altio and Scalia do not come in for the same kinds of criticism. I think that’s notable and worth pushing back against.

            • NonyNony

              I will say that prior to the appointment of Alito to the court, I heard a lot of the kind of stuff you’re talking about with regard to Thomas. Lemieux pushes back against it regularly too, so I assume that it’s still out there.

              I disagree that you don’t hear the same things about Alito though – Alito seems to be regularly regarded as a corporate tool who got his JD from a box of Corn Flakes. And in fact since Alito hit the court I’ve heard less about Thomas’s hackishness.

              (Also it probably doesn’t hurt Thomas that Scalia – the former poster child for “intelligent conservatism” on the court – has turned into a Fox News/Limbaugh drone and says and writes outrageously stupid and highly mockable things. Thomas is easily in one of the top two smartest conservatives on the court spots at this point..)

            • Johnny Sack

              But wasn’t he? He was replacing Thurgood Marshall, of course Bush was going to get a black guy, and there were none sufficiently right wing in the appellate courts at the time.

              Look at his qualifications against everyone else. Even Alito was a U.S. Attorney and appellate court judge for a decade and a half. Roberts was one of the finest appellate advocates in the country before being nominated to the DC circuit. Ginsburg was a professor, a rockstar at the ACLU, and appellate judge nominated by Carter. Breyer was well-respected in admin law and also on (was it the 1st circuit) for many years. Sotomayor was an ADA, litigator, district judge for several years, and circuit judge for a decade.

              Aside from being on the Supreme Court, Thomas is one of the least-accomplished justice sitting. Granted, that doesn’t necessarily make for a bad judge (his scant judicial experience was more than Kagan’s, and I’m not making the argument that that is the be all end all anyway). But it did raise some eyebrows. Especially in the African American community. It came off as very cynical at the time. Now, go ahead and call me a racist. I don’t really care.

              • Anon21

                Yeah, but… pre-Court experience is just a proxy for being intellectually qualified. Thomas’s service on the Court has proven he is intellectually qualified, even if you disagree with him about almost everything (as I do). Relitigating how he was first chosen at this point does stink of racism, because it’s just so irrelevant in light of his two decades on the bench.

                • Johnny Sack

                  Can i ask for a bit more nuance from you? I’m not re litigating it, I’m looking at it from the ex ante perspective. As a member of a minority group underrepresented in the legal profession, I was offended at the time of the appointment-surely there was some more qualified member of the African American community. But then, it’s politics so what are you going to do.

                  I don’t think Thomas is unambiguously qualified, although he’s certainly not an idiot. No such thing as the dormant commerce clause? He’s a strange man, but he’s here to stay.

                  I’m not sure what you’re getting at. I don’t necessarily think judges make better justices. It doesn’t make sense to criticize Obama for having little national political experience now, but again, I’m considering what a gamble it was from the ex ante perspective to get someone who has to later prove themselves. There are dozens if not hundreds of people who have already proven themselves either as appellate advocates or judges (etc). Why nominate someone who has yet to prove themselves? Thomas has, I think, proven himself, but that certainly wasn’t a given.

                • Hogan

                  Thomas testified in his confirmation hearings that while he was at Yale Law School, at the time Roe v. Wade was decided, he never discussed the case with any of his fellow students. Either he lied under oath or he’s so deeply uninterested in constitutional law that he shouldn’t be on the Supreme Court.

                • mpowell

                  I don’t know why you’d really want to defend Thomas’s intelligence. It’s true that he’s fiercly independent, but don’t confuse that with intelligent. He has an idiotic interpretation of the constitution and applies it more or less consistently. But nobody takes his constitutional theory seriously. It’s not a coherent, developed theory of law or anything. It’s just a rubric that he laid out and adheres to. Not that impressive, imop.

                • Anon21

                  Can i ask for a bit more nuance from you? I’m not re litigating it, I’m looking at it from the ex ante perspective.

                  Yes, but why would you, when I’m talking about what dumb people go after him with now, after decades on the court? This isn’t coming up in discussions about the political acumen and overall quality of judicial appointments of George H.W. Bush. It’s coming up in discussions of Clarence Thomas’s worth as a Justice, where it has no value except to make the speaker look like a racist asshole.

                  I don’t think Thomas is unambiguously qualified, although he’s certainly not an idiot. No such thing as the dormant commerce clause? He’s a strange man, but he’s here to stay.

                  Scalia thinks this too. Is that a sign that he’s an idiot, or just that he has bad/extremely rigid views about the Constitution?

                  Either he lied under oath or he’s so deeply uninterested in constitutional law that he shouldn’t be on the Supreme Court.

                  He lied, of course. (And not just—or most problematically—about that, as I’m sure you’ll recall.) This particular kind of lie is just a less-artful version of the lie that every judicial nominee tells, which is that they have no preexisting opinion on any of the controversial issues they are likely to adjudicate.

                  It’s true that he’s fiercly independent, but don’t confuse that with intelligent. He has an idiotic interpretation of the constitution and applies it more or less consistently. But nobody takes his constitutional theory seriously.

                  No one should take any “constitutional theory” seriously. This stuff isn’t rocket science, and it basically comes down to the theorist’s policy preferences in every case. I don’t like Thomas’s policy preferences, so I don’t like his constitutional law. But let’s not pretend his constitutional adjudication has been somehow less sophisticated than his colleagues’.

                  Again, you are pretty clearly judging him by different standards than the other Justices when you imply he’s unintelligent. He’s a fine writer (better than Kennedy, for one) and is able to hold his own in exchanges among a pretty bright group of lawyers. A terrible Justice, but he is not a dumb man.

            • Rarely Posts

              Justice Thomas clearly is a product of affirmative action, but in my view, affirmative action isn’t a bad thing. Bush wanted to find an African American to appoint, and so he undoubtedly looked at numerous potential candidates that he likely would have overlooked if he wasn’t thinking about race. He chose Justice Thomas, and Justice Thomas’ race likely played a major role in that choice. But, none of that means Justice Thomas is unqualified, though it means his paper resume didn’t have some of the elements of elite achievement many other Justices’ resumes contain. That doesn’t mean he was unqualified; he has the basic “qualifications” necessary to be a Justice. Moreover, Justice Thomas really does bring a unique and interesting perspective to the Court.

              All that said, Justice Thomas doesn’t belong on the Court, and in my view, his attitude towards precedent and his willingness to give almost no weight to stare decisis strongly counsel against choosing him. On this point, I’m not concerned about Harris for the reasons that Justice Sotomayor ably provides. Nonetheless, I am disconcerted (but not surprised) that Justice Thomas didn’t even feel the need to address the issue of stare decisis, and that is indicative of his broader attitudes. In the realm of constitutional law, Thomas has signaled that he’s willing to roll the entire nation back to before the New Deal if he has the chance, regardless of all the prior Jurists who ruled the other way, the decades of Americans electing politicians who voted in favor of maintaining New Deal and Great Society programs, and the massive reliance interests built up as everyone has structured their lives around it. That’s not, in my view, the appropriate role for a Judge in our democratic system.

              • I don’t think Thomas is an idiot, but I do think he’s a really terrible, fraud of a human being with a selfish, vicious, streak a mile wide. And I think the same of Scalia and always have. Scalia’s reputation as a “brilliant” Jurist was, to my mind, always overblown and the product of a kind of scared white guy affirmative action combined with conservative affirmative action. People were afraid to point out how illogical his arguments were, and how increasingly weird his commentary and behavior were.

                Thomas’s case has to be distinguished from Scalia’s because of his multi year sulky silence and refusal to join in oral argument made him a public cipher. People absolutely did not call him an “idiot” at the time of his appointment. He was considered a horrible choice, a liar, a sexist, a fantasist, a man who while he was high up (head?) at the EEOC both sexually harrassed his subordinates and lied about it. There’s no denying that this made him a terrible choice for dog catcher, let alone a judge on the highest court.

                But really, must you drag Kos into this as the arbiter of all things left? They aren’t exactly the brightest bulbs out there and their insults are frequently random, frozen, chosen out of a hat. Its quite common to call someone an “idiot” because he doesn’t agree with one.

  • mpowell

    Alito is a hack. Scalia is kind of losing it. Thomas is motivated by constitutional principles so bizarre (and so important to him) that it is never really surprising when he reaches a truly terrible result (though he gets this one right). But what explains Breyer’s opinion here? I really struggle to understand how any justice, much less someone with Breyer’s intelligence, could fail to recognize the constitutional requirement to prove all aspects of a case that influence sentencing adversely for the defendant. Any ideas?

  • joe from Lowell

    Is it my imagination, or does the Supreme Court deal with a lot of issues relevant to federal drug laws by taking cases that aren’t about drug convictions?

  • Joe

    Bill Otis (a former prosecutor) makes a case that I have seen made from the defense side too at 3.05:

    http://sentencing.typepad.com/sentencing_law_and_policy/2013/06/per-justice-thomas-in-5-4-scotus-split-alleyne-extends-sixth-amendment-to-findings-triggering-mandat.html#comments

    Basically, this is a lot of doctrinal noise, but the net effect is minimal. He at times is a tad over the top in his commentary but here he is restrained and seems to have a point.

    It is somewhat curious that Scalia did not in Harris explain himself, but went along with the majority filled with people who given their druthers wouldn’t support Apprendi in the first place. The majority did draw a line, refuted by Thomas then and now, but you’d think Scalia would deem is worth his time to note his special position here. Oh well.

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