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The Right to a Jury Trial Finally Applies to Mandatory Minimums


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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