Friday, March 22, 2013

A Criminal Sentencing Revolution? Alleyne v. United States

mandatory minimum sentences may be unconstitutionally imposed in Federal courts
[Update: This case was decided in Alleyne's favor. Read my post on the opinion here].

In America, defendants facing criminal charges have the right to a jury trial. The jury hears evidence and determines the facts. The judge hears legal argument and determines the law, then instructs the jury on that law. The jury applies the law to the facts and reaches a verdict. A guilty verdict must be supported by the highest standard of proof, proof beyond a reasonable doubt. After the verdict, the judge imposes sentence, and it's here that certain facts, or sentencing factors, shape the outcome. The law in Federal court and in some states, allows these facts to be proved by a lower standard, and only to a judge. Proof of certain facts triggers mandatory minimum sentences. These facts are never part of the indictment, they are never presented to the jury yet they might double or triple the sentence. If that sounds wrong, it's because it might be. The issue is before the U.S. Supreme Court in Alleyne v. United States.


Lower Court History of Alleyne v. United States

Two men robbed a store manager who was taking cash deposits to the bank. One of the robbers stood outside his car pretending it was broken down. He flagged down the the manager who stopped to help. The robber pointed a gun at the manager and took his money. The gunman returned to the passenger side of his car and was driven away. The victim never saw the driver and the man with the gun was never caught. The prosecution believed that Allen Alleyne was the get away driver and he was charged in a Virginia Federal court with two crimes: (1) robbery affecting Interstate commerce, and (2) using, carrying or brandishing a firearm during a crime of violence.

The Jury convicted Alleyne on both counts but a special verdict form asked them to determine whether he brandished the weapon and they found that he did not. At sentencing hearing, the judge imposed a 46 month sentence on the robbery, but also found, by a preponderance of the evidence, that Alleyene knew or should have known that his accomplice would display a gun. That's enough to trigger a brandishing enhancement and a mandatory minimum 84 months consecutive to the 46. The total sentence of 130 months did not exceed the statutory maximum. The defense appealed to the Fourth Circuit arguing that the process violated Alleyne's right to a jury trial and to proof beyond a reasonable doubt. The sentence was affirmed.

Apprendi: A High Standard for Exceeding the Maximum Sentence.

Traditionally, elements of the crime were submitted to the jury while sentencing factors were determined by the judge. In 2000, the Supreme Court decided Apprendi v. New Jersey holding that, no matter what they are called, "facts which increase a range of penalties to which a criminal defendant is exposed" must be proved to the jury beyond a reasonable doubt. p 490. The court there reasoned, "Despite what appears to us the clear "elemental" nature of the factor here, the relevant inquiry is one not of form, but of effect--does the required finding expose the defendant to a greater punishment than that authorized by the jury's guilty verdict?" p 494. In that case, the judicial finding allowed a sentence that otherwise exceeded the statutory maximum sentence. Alleyne argues that the logic should be applied to any factor which increases the statutory minimum sentence. Language throughout Apprendi supports that thinking:
The degree of criminal culpability the legislature chooses to associate with particular, factually distinct conduct has significant implications both for a defendant's very liberty, and for the heightened stigma associated with an offense the legislature has selected as worthy of greater punishment...When a judge's finding based on a mere preponderance of the evidence authorizes an increase in the maximum punishment, it is appropriately characterized as 'a tail which wags the dog of the substantive offense.' p 495.
Today, Apprendi stands for the proposition that facts which increase the sentencing range above the statutory maximum, must be proved to the jury beyond a reasonable doubt. The holding does not apply to facts which trigger a minimum sentence within the allowed sentencing range and that's what Alleyne could change.

Harris: A Lower Standard for Mandatory Minimum Sentences


Deciding in Alleyne's favor would mean extending Apprendi, but also overruling a 2002 case which presented the same issue: Harris v. United States. In that case, pawn shop owner, William Harris sold drugs with a pistol at his side. He was convicted after bench trial of drug trafficking while possessing a gun. The indictment said nothing about brandishing the weapon. The sentencing judge found brandishing by a preponderance, applied that sentencing factor and imposed the resulting 84 month minimum sentence.

While The Apprendi court rejected the formal labels of 'element' and 'sentencing factor' when construing the New Jersey law, the Harris court did a very close read of the Federal statute. They looked at whether the statute created multiple drug trafficking offenses or a single offense that could be sentenced a variety of ways. In the end, the court relied in part on the way the subparagraphs were numbered, finding: "When a statute has this sort of structure, we can presume that its principal paragraph defines a single crime and its subsections identify sentencing factors." p 553.

Before Apprendi, the court had decided McMillan v. Pennsylvania which approved a minimum sentence triggered by a preponderance standard. In Harris, the court reaffirmed that holding and distinguished from Apprendi:
The factual finding in Apprendi extended the power of the judge, allowing him or her to impose a punishment exceeding what was authorized by the jury. The finding in McMillan restrained the judge's power, limiting his or her choices within the authorized range. It is quite consistent to maintain that the former type of fact must be submitted to the jury while the latter need not be. p 567

Alleyne Decision: Speculation and Impact


Alleyne v. United States was argued January 14, 2013 and remains undecided. Accounts of the argument suggest that the court did not spend too much time on Stare Decisis or even the merits of the Harris holding. The question seems to be about what Apprendi really means.

Vote Breakdown


So how does the Court Break Down? Kennedy wrote the Harris opinion, but may have softened on the issue. Alito, Roberts and Scalia (the only remaining, non-concurring member of Harris majority) will probably vote to affirm. Thomas wrote the dissent in Harris and Ginsburg joined him so they will very likely side with Alleyne. Kagen and Sotomayor seemed to lean slightly toward the defendant in oral argument so Breyer might be the wild card. He concurred with the result in Harris but only because he sees no 6th amendment problem with judicial sentencing factors regardless of their impact on the sentence. He argued in that dissent however that Harris was not logically distinguishable from Apprendi, a case where he was one of only two dissenters. It's worth noting that Breyer dislikes mandatory minimum sentencing and said as much in his Harris concurrence. He might side with Alleyne to limit these sentences and to harmonize this line of cases with Apprendi; after all, it is the law of the land even if he disagrees with it. As Scalia remarked of Breyer at the Alleyne argument “Apprendi is so bad he wants to extend it.”

Impact of a Defense Decision


A decision in Alleyne's favor would have a huge national impact. State and Federal statutes and sentencing policy would need to fundamentally change. If a favorable decision is applied retroactively it could trigger a resentencing project akin to Booker. Luckily the impact in Maine's state courts would be limited. Maine's Aggravated Drug Trafficking law, makes aggravating factors elements of the crime, and most other Maine statutes require that aggravating facts be "plead and proved."

But in many states, crimes are charged alleging only the bare facts of the main offense. The real "trial" then comes at the sentencing hearing where a judge decides what factors are proven. +Jason Dunkle has written about how Pennsylvania Drug Trafficking law uses this process. +James Novak has an article on Arizona Drug Sentencing explaining a similar system there. This could soon be unconstitutional. State process would need to change and some amount of resentencing or retrial would be required.

An opinion is expected soon.