I took Crim Law my first semester in law school. My professor, now the school’s dean, was an imposing fellow to 1L eyes. He looked approximately seven feet tall, with a deep, booming voice, a propensity for cold-calling, and a demanding, often impenetrable teaching style. I loved the class, even though I went into fight-or-flight mode in the minutes before he would stroll down the aisle of the auditorium.
We read the Apprendi line of cases, where the Supreme Court ruled that the Sixth Amendment right to a jury trial prevented judges from enhancing criminal sentences beyond statutory maximums based on facts other than those decided by a jury beyond a reasonable doubt. I thought I grasped the gist, with my nervous 1L brain. Then we got to Harris v. United States. In Harris, the majority held that Apprendi did not apply to facts that would increase a defendant’s mandatory minimum sentence. Judges could apply mandatory minimums on the basis of facts not proved to a jury, without violating the Sixth Amendment. These fact were sentencing factors, the majority held, not offense elements.
Terrified that I had misunderstood something crucial, I visited my crim prof’s office before the class when we would discuss Harris. I recited the cases up to that point, if for no other reason than to show that I had, in fact, been reading and that my ultimate confusion was not because I was totally mentally challenged. (Even if just a little.) I summarized my understanding of the Court’s holding in Harris, why it just didn’t square, how I knew that I must be missing something, because I just didn’t see how Harris properly followed. After way too long, I finally sputtered, “Sir, I’m . . . I’m just . . . confused.”
My prof leaned back in his chair, paused dramatically, sighed, then replied, “Ms. Tabo, of course you are confused. The Supreme Court is confused.”
As of this week, the Court is no longer so confused….
In Alleyne v. United States, in a majority opinion authored by Justice Clarence Thomas, SCOTUS overruled Harris.
In Alleyne, a judge issued a seven-year sentence to the defendant, Allen Ryan Alleyne. At trial, the jury had found that the Alleyne had “used or carried” a firearm during and in relation to a crime of violence. The judge found that Alleyne had “brandished” the firearm, which increased the defendant’s mandatory minimum sentence from five to seven years.
In a five-to-four decision by Justice Thomas (joined by liberal Justices Ginsburg, Breyer, Sotomayor, and Kagan), the Court vacated Alleyne’s sentence and remanded the case for resentencing. The majority held that the seven-year mandatory minimum sentence violated his constitutional right to trial by jury because the brandishing issue was never submitted to the jury.
The issue of mandatory sentencing minimums has lured some strange fellows to the same bed in the political arena too. Senator Rand Paul, Tea Party favorite from Kentucky, and Senator Patrick Leahy, liberal Democrat from Vermont, both want to end mandatory minimums for many crimes. Rand Paul issued a statement praising the Court’s decision in Alleyne. He wrote:
“Today’s Supreme Court decision is a promising step forward in reining in mandatory minimum sentencing in our courts. Sen. Patrick Leahy (D-Vt.) and I recently introduced the Justice Safety Valve Act, which is designed to combat the injustice in many federal criminal laws, which have mandatory minimum penalties attached. Mandatory minimum sentences violate the bedrock principle that all people should be treated as individuals – not grouped in to a one-size-fits-all mandate.”
Grover Norquist of Americans for Tax Reform publicly supports the bill, as does the Families Against Mandatory Minimums Foundation. (Hence, the name, right?) Norquist — the Alice in Wonderland of D.C., offering the “Drink Me” potion that will shrink government budgets by any means necessary — sees this bill as a way to reduce Bureau of Prisons spending. FAMM views mandatory minimums as a tool for incarcerating their (felonious) loved ones for longer than is just under their particular circumstances.
Note that the practical impact of Alleyne alone is dubious. The decision does not eliminate mandatory sentencing minimums. It holds that facts that trigger minimums are elements of the offense itself and are thus subject to the guarantees of the Sixth Amendment. The vast majority of criminal cases end with a plea agreement, in which case there is no mythical jury finding any of the elements beyond a reasonable doubt, including the ones that would trigger a mandatory minimum sentence. Savvy prosecutors, when drafting plea deals, will now be sure to include the mandatory-minimum-triggering facts. If Allen Ryan Alleyne had stated in his plea colloquy that he had brandished a gun instead of just possessed one, he’d have no Sixth-Amendment challenge. Alleyne may mean little more practically than one more item on prosecutors’ to-do lists.
Note too, though, that neither Justice Thomas nor my liberal crim prof arrived at the conclusion that Harris belonged in the trash bin because of its practical consequences, whether they liked those consequences or not. I suspect my prof might celebrate reduced prison terms (again, if that’s even what Alleyne will cause). Maybe Justice Thomas would not so celebrate, if leftist lore about CT being a stone-hearted racist with a chip on his shoulder is to be believed for a fraction of a second (or however long it takes to get to the end of one of Elie’s rants, whichever comes first).
Clarence Thomas and my old crim prof don’t have much in common beyond being black men over the age of 60 with law degrees. (Well, the booming voices too.) CT is regarded by both his friends and foes as a conservative stalwart. While I’ve never seen my prof’s voter registration card, he certainly gave every impression of leaning well left of center politically. And probably not much of a Thomas fan. They don’t agree on much.
What they do share is an extraordinarily deductive approach to law, especially the Sixth Amendment. The method is almost arithmetic. It is deductive in that it reasons from a firm general rule to the specific outcome, whatever the outcome might mean in a particular case. Not vice versa. We don’t examine the range of social outcomes, then induce a rule that will increase the likelihood of the ones we desire.
So, there’s a logic to Apprendi. The Sixth Amendment demands that a jury must find beyond a reasonable doubt all of the facts that will determine the penalty range of a crime. Constitutionally, minimums matter just as much as maximums. Harris strayed from this logic. Therefore, Harris must be corrected.
Alleyne, in overruling Harris, does what law should do, in the way legal decision-makers should do it. It shows that even those with diverging political ideologies can detach from the pull of outcomes and focus on what the Constitution demands. It highlights what happens when we reason deductively versus inductively. At the very least what happens is that we stop looking like liberal or conservative caricatures.
For that, we can just wait for a discussion of Fisher.
Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. She has clerked on the U.S. Court of Appeals for the Fifth Circuit and worked as a researcher for multiple projects on the intersection of cognitive science and law, including Baylor College of Medicine’s Initiative on Neuroscience and the Law. She looks forward to a career of teaching and writing about, but never practicing, law. You can reach her at [email protected]