High court limits reach of Apprendi
In a January 14, 2009 opinion, the Supreme Court ruled 5-4 that the Sixth Amendment does not mandate jury determination of facts necessary to the imposition of consecutive (rather than concurrent) sentences in multi-offense convictions. Writing for the majority in Oregon v. Ice, No. 07-901, Justice Ginsberg declined to extend the Apprendi v. New Jersey, 530 U.S. 466 (2000) and Blakely v. Washington, 542 U.S. 296 (2004) line of cases to consecutive sentencing determinations. In Apprendi and Blakely the Court held that the Sixth Amendment requires juries to find all facts (other than the existence of a prior conviction) that could be used to lengthen a defendant’s sentence.
A majority of states leave the consecutive or concurrent sentencing decision to the judge’s discretion but a minority, including Oregon, limit that discretion by requiring sentencing judges to find certain facts before imposing consecutive sentences. Justice Ginsberg found no Sixth Amendment issue with either approach. Justice Ginsberg based her rationale on respect for state sovereignty in justice administration and pre-Constitutional practice, which arguably places the holding at odds with Apprendi itself. Justice Ginsberg resolved the issue by applying Apprendi only to findings which have an impact on the length of a sentence for “discrete crimes,” rather than to determinations such as consecutive sentencing that affect the total sentence.
Writing in dissent, Justice Scalia noted the apparent conflict with Apprendi, observing that “Oregon’s sentencing scheme allows judges rather than juries to find the facts necessary to commit defendants to longer prison sentences, and thus directly contradicts what we held [in Apprendi] and have reaffirmed several time since.” Justice Scalia rejected Justice Ginsberg’s dichotomy between sentence lengths for individual crimes and total sentences as a distinction without difference under the Sixth Amendment.
Further development in the lower courts will be necessary to see how this decision might apply beyond the concurrent-consecutive sentencing issue, but Oregon v. Ice at least signals a willingness on the part of a majority of the Court to limit the potential reach of Apprendi.
(With appreciation to Eric E. Reed, Esq., for contributing this entry)
