Cato Supreme Court Review, 2008-2009

Ilya Shapiro

• Publisher: Cato Institute
• Year: 2009
• ISBN:
  9781935308164
• Topic: Politics & International Relations
• Subtopic: Public Policy
• Index: Politics & International Relations

Published every September in celebration of Constitution Day, the Cato Supreme Court Review brings together leading legal scholars to analyze the most important cases of the Court's most recent term. It is the first scholarly review to appear after the term's end and the only on to critique the court from a Madisonian perspective.

Using Its Sixth Sense: The Roberts Court Revamps the Rights of the Accused

Mark Chenoweth*

The Sixth Amendment loomed large during the Supreme Court’s 2008 October Term.¹ Fittingly, the justices heard six oral arguments touching on nearly every aspect of that amendment.² This outsized fraction of cases indicates the recent tumult in criminal procedure law.³ In particular, the latter-stage Rehnquist Court decisions in Apprendi v. New Jersey and Crawford v. Washington raised numerous questions that the Court had not answered fully by the time Chief Justice John Roberts and Justice Samuel Alito replaced Chief Justice William Rehnquist and Justice Sandra Day O’Connor.⁴ Among the six argued cases, the Roberts Court heard two especially significant ones, which afforded it an early opportunity to clarify lingering issues in Sixth Amendment law and put its own stamp on constitutional criminal procedure jurisprudence. Considered separately, Oregon v. Ice and Melendez-Diaz v. Massachusetts are momentous cases, because each of them reshapes a major line of Rehnquist-era (albeit not Rehnquist-endorsed) precedent.⁵ Perhaps more importantly, however, these two cases taken together signify that the Roberts Court will continue the Rehnquist Court’s renovation of the Sixth Amendment along originalist lines.

This pair of major cases explored the parameters of two separate Sixth Amendment protections afforded to criminal defendants: the right to a jury trial in the sentencing context, and the right to confront adverse witnesses. More specifically, Oregon v. Ice posed the question whether a post-Apprendi sentencing judge may find facts apart from the jury verdict to decide whether the defendant will serve consecutive or concurrent sentences. Melendez-Diaz v. Massachusetts asked if, given Crawford, it infringes a defendant’s right to confront his accusers for the prosecution to enter lab test data into evidence via affidavit rather than via a lab technician’s live testimony.

This article will first examine the Court’s reasoning in Ice and Melendez-Diaz, and it will then address the implications of those decisions for the Apprendi and Crawford lines of precedent, respectively. In so doing, it will consider what questions remain open following this term’s decisions, surmise where the jurisprudence regarding each of these major precedents may evolve, and discuss how Justice David Souter’s retirement could affect that evolution. The article will conclude by explaining how these cases exemplify the trend of originalist renovation.

I. Slipping on Ice: The Apprendi March Slows Down

A. Apprendi Jurisprudence before Ice

Justice Ruth Bader Ginsburg’s opinion for a narrowly divided court in Oregon v. Ice must be understood against the backdrop of the previous decade’s dramatic developments in the Court’s Sixth Amendment sentencing law jurisprudence. Led by an unusual coalition of justices, the Rehnquist Court staged a radical renovation of the right to a jury trial in its later years. The odd alliance joined that Court’s three most consistently liberal jurists—Justices John Paul Stevens, David Souter, and Ruth Bader Ginsburg—with its two most thoroughgoing conservatives, Justices Antonin Scalia and Clarence Thomas.

Beginning with the Apprendi decision in 2000, the Court broke from its prior approval of sentencing regimes that rely upon post-verdict judicial fact-finding.⁶ By a 5-4 margin, the Court held that the prosecution must both charge in the indictment and prove to the jury beyond a reasonable doubt every fact that contributes to the length of a defendant’s sentence in order to uphold the accused’s right to a trial by jury. As a result, judges may no longer enhance a defendant’s sentence based on facts found by the judge during the sentencing phase, except for the fact of a prior conviction, which, after all, another jury already determined.⁷ Although Apprendi did not put an end to the controversial practice of judges basing sentencing decisions on acquitted conduct,⁸ it did curtail the previous prosecutorial practice of holding back facts or charges that might not be proved beyond a reasonable doubt to the jury in order to present them to the judge as factors meriting an enhanced sentence.⁹

The Court followed Apprendi two years later with Ring v. Arizona, deciding that a jury—not a judge—had to decide whether aggravating factors outweighed mitigating factors in rendering a death sentence.¹⁰ Although Ring was a 7-2 decision, the five-justice Apprendi majority added Justice Anthony Kennedy explicitly on stare decisis grounds and Justice Stephen Breyer on sui generis Eighth Amendment grounds.¹¹ The very same day, in Harris v. United States, the Court seemed to depart from Apprendi’s logic.¹² Even though a jury must decide facts that increase a defendant’s maximum sentence, the Harris majority held that a judge could permissibly find the facts necessary for increasing a defendant’s mandatory minimum sentence (based, in that case, on having brandished a weapon). Four of the five Apprendi justices hung together in dissent, but Justice Scalia crossed over to join the Harris majority without comment. Harris involved the same potential for prosecutors holding back facts not provable to the jury—brandishing is a crime with its own elements—in order to present them to the judge post-verdict and raise a defendant’s minimum sentence. The Court reasoned, however, that no Sixth Amendment violation had occurred, because the higher mandatory minimum fell within the available sentence for the guilty verdict returned by the jury.

In the waning days of the 2003–04 term, Apprendi struck yet again. In Blakely v. Washington, the Court held that Washington state’s sentencing guidelines regime was an unconstitutional violation of the jury trial right described in Apprendi, because it permitted the sentencing judge to find additional facts justifying an enhanced sentence.¹³ Because Washington’s system closely resembled the federal sentencing guidelines, the Blakely decision generated immediate confusion and uncertainty in federal sentencing. To deal with the Blakely aftermath, the Court set two cases for oral argument on the first day of October Term 2004. Come January 2005, when Booker v. United States and Fanfan v. United States were decided, the Apprendi five held together once again, and the Court decided that the federal sentencing guidelines as constructed also violated the Sixth Amendment’s jury trial guarantee.¹⁴

The victors, however, did not get the spoils. Justice Ginsburg deserted the Apprendi five to join in crafting a remedy favored by the Booker/Fanfan dissenters.¹⁵ Whereas the remainder of the Apprendi five would have required juries to find the necessary facts for enhanced sentences under the mandatory guidelines (following existing practice in states like Kansas),¹⁶ the Booker dissenters plus Justice Ginsburg excised just that portion of the statute making the federal sentencing guidelines mandatory.¹⁷ This way federal trial judges could still look to the guidelines as instructive or persuasive authority, but they were not impermissibly bound to find facts or issue enhanced sentences. The Booker remedy majority reasoned that such a result did less violence to the statute and came closer to preserving what Congress had intended.¹⁸

The Apprendi line of cases stood at this juncture when Chief Justice Roberts and Justice Alito replaced Chief Justice Rehnquist and Justice O’Connor. In a nearly unbroken chain of 5-4 decisions, generally pitting the three most liberal and two most conservative justices against the middle four, the Court had steadily reinforced its holding in Apprendi and extended the application of Apprendi’s rule to strike down several sentencing regimes—including New Jersey’s, Arizona’s, and Washington’s, as well as the federal sentencing guidelines.¹⁹

The pro-Apprendi trend showed no signs of abating in the newly reconstituted court’s first full term together in 2006–07. For example, the constitutionality of California’s sentencing guidelines regime came under review in California v. Cunningham.²⁰ The Apprendi five became six with the addition of Chief Justice Roberts, and the Court held that California’s three-tiered sentencing system, where judge-found facts can move defendants into higher sentencing tiers, violated the right to trial by jury. Later in the term, in Rita v. United States, a nearly unanimous Court held that federal courts of appeals could apply a presumption of reasonableness to trial-court sentences falling within the guidelines range.²¹ Finally, in a pair of 7-2 decisions from December 2007—Gall v. United States and Kimbrough v. United States—the Court held that two lower courts had erred in overturning sentences below the guidelines range, because judges may depart downward from the now merely advisory federal sentencing guidelines.²² The reasonableness of sentencing decisions, said the Supreme Court, must be reviewed under an abuse of discretion standard.

B. The Majority’s Reasoning in Oregon v. Ice

With this flood of decisions as a backdrop, Oregon v. Ice posed the question whether a judge may find post-verdict facts to justify ordering a defendant to serve consecutive rather than concurrent sentences, or whether, given Apprendi, a jury must make that decision. Unlike most states, Oregon’s state legislature had established concurrent sentences as the default, specifying that consecutive sentences may be given only if the judge finds that the defendant’s offenses were not part of the same “continuous and uninterrupted course of conduct,” or that the offenses indicated a “willingness to commit more than one criminal offense,” or that they caused or risked causing the victim “greater or qualitatively different loss, injury or harm.…”²³

Apartment superintendent Thomas Ice twice entered the unit of his 11-year-old female victim and sexually assaulted her. The jury convicted him on two counts of first-degree burglary (entering with the intent to commit a crime), two counts of first-degree sexual assault for touching the victim’s vagina, and two additional counts of first-degree sexual assault for touching the victim’s breasts. The judge deemed the two burglaries separate incidents and imposed those sentences consecutively. The court further deemed that the sexual assaults both exhibited the requisite willingness to commit multiple offenses and caused qualitatively different harm. The court imposed the vaginal sexual assault sentences consecutive to the burglary sentences but exercised discretion to impose the breast sexual assault sentences concurrent to the rest (effectively earning no additional time for the latter). Based on the judge’s predicate findings, Ice received a total sentence of 28 years, 4 months (340 months), rather than the fully concurrent default sentence of 7 years, 6 months (90 months).²⁴

In approving the practice of basing consecutive sentences on judge-found facts, the Supreme Court relies primarily on prevailing historical practice under the common law and the sovereign authority of states over administration of their own criminal justice systems. The Court first asks whether the judge-found facts at issue in the case were the kind of facts that the framers of the Bill of Rights would have understood to be within the jury’s domain.²⁵ After a brief consideration of English and early American common-law tradition, the Court concludes that juries have not historically found facts pertaining to the decision to impose consecutive sentences. Because juries played no such role historically—and the decision itself was not a common-law jury function—the Ice Court reasons that Oregon’s scheme poses no threat to the traditional jury role as a bulwark between the accused and the state that the Sixth Amendment sought to protect.²⁶ Furthermore, since historical practice must

inform the scope of constitutional rights, the right to trial by jury will not automatically “attach[] to every contemporary state-law ‘entitlement’ to predicate findings” that constrains judicial sentencing discretion.²⁷

Turning then to the prerogatives of sovereign states, the Court notes that state legislatures have long determined the kind of regime states would employ in administering multiple sentences.²⁸ The Court refers to an amicus brief filed by several of Oregon’s sister states and voices concern that a contrary ruling could imperil a broad swath of sentencing practices.²⁹ For example, judge-found facts can govern decisions regarding supervised release, drug rehabilitation, community service, and the amount of fines or restitution imposed. To avoid prejudicing a jury during the guilt phase of trial, a bifurcated trial might be required with the facts forming the basis for a consecutive sentence being considered at a later stage of the proceedings. Before infringing state power by imposing such requirements, the Court indicates that it would need to see a “genuine affront to Apprendi’s instruction.”³⁰

Just such federalism concerns permeated many of Justice O’Connor’s dissents in the Apprendi line of cases, yet she never received a single vote from either Justice Ginsburg or Just...

Table of contents

• FOREWORD
• Introduction
• Is the Constitution Libertarian?
• The Future of the Voting Rights Act after Bartlett and NAMUDNO
• The War between Disparate Impact and Equal Protection
• Into the Pre-emption Thicket: Wyeth v. Levine
• linkLine’s Institutional Suspicions
• Hydraulic Pressures and Slight Deviations
• (Un)Reasonableness and the Roberts Court: The Fourth Amendment in Flux
• Using Its Sixth Sense: The Roberts Court Revamps the Rights of the Accused
• Pleasant Grove City v. Summum: The Supreme Court Finds a Public Display of the Ten Commandments to Be Permissible Government Speech
• FCC v. Fox Television Stations, Inc.: Awaiting the Next Act
• The Caperton Caper and the Kennedy Conundrum
• Looking Ahead: October Term 2009
• Contributors