I dare you, try to explain Apprendi to a client

I just cannot get over the chaotic situation present in federal sentencing law. About 13 years ago, Apprendi v. New Jersey, 530 U. S. 466 (2000) was decided.  As I observed yesterday, in Alleyne the Justices split wildly once again on what Apprendi means.  This is how the syllabus of the opinion describes the differing views of the Justices:

THOMAS, J., announced the judgment of the Court and delivered the
opinion of the Court with respect to Parts I, III–B, III–C, and IV, in
which GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined, and an
opinion with respect to Parts II and III–A, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. SOTOMAYOR, J., filed a concurring
opinion, in which GINSBURG and KAGAN, JJ., joined. BREYER, J., filed an
opinion concurring in part and concurring in the judgment. ROBERTS,
C. J., filed a dissenting opinion, in which SCALIA and KENNEDY, JJ.,
joined. ALITO, J., filed a dissenting opinion.

Now, assume you are a criminal defense lawyer.  Assume your client wants to know what that case called Apprendi means.  Can you accurately answer your client’s question? Hell, no.  In fact, I wager that you would commit malpractice if you tried.

The Justices should be ashamed of themselves.  For God’s sake, pick a damn rule, any rule, but stop the dithering madness.


6 responses

  1. This layman will answer the dare. My response flows from this premise: concurring opinions aren’t opinions of the court any more than are dissenting opinions and so are not binding, any more than are those dissenting opinions. The only opinion that is binding—is law of the land—is the opinion of the court. The concurring and dissenting opinions have value to the extent the reasoning in them help a lower court clarify its own thinking when adjudicating a substantially similar case, but they have no other effect. If this premise is invalid, then so is my conclusion.

    The Supreme Court held in Apprendi, per the syllabus, that a jury must try all facts related to the crime for which a defendant is being tried, and those facts include any fact that can increase, beyond a statutory limit, the maximum punishment a judge can impose. This then, is the Rule of Apprendi, as articulated by Justice Stevens in the summary of his Court opinion:

    Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.

    All the rest of Stevens’ verbiage is just argument for developing the rule and supporting argument for its legitimacy.

    While the other opinions are irrelevant to this rule as the law of the land (if my premise is valid), I do have a couple of comments on those opinions (because I have opinions on most anything).

    On Justice Scalia’s concurrence: this one seems the most plainly irrelevant. Scalia said he was only responding to Justice Breyer’s dissent, and so he added very little to the actual resolution. For all that, Scalia’s concurrence boils down to a statement that juries decide all the facts of a case, not just the ones convenient to the state (or to the defense). Which means, in this context, what Stevens wrote and nothing different.

    On Justice Thomas’ concurrence: this one just supports the Court’s opinion, with the added (but not mandatory vis-à-vis lower courts or as precedent for the Supreme Court to follow) view that prior convictions ought also to be a fact to be tried by jury and not by the consenting judge. All of his verbiage is just history and case cites to support this thesis. This proposed expansion, though, seems more a formality than anything meaningful. It seems to me that the only controversy a prior conviction might contain is its relevance to the case at hand. Relevance is a matter of law and not of fact; that much is in the realm of the judge’s task, rather than the jury’s. If it’s relevant, it’s a fact to be tried, but what is there to try? The jury reads the rap sheet and notes that the (relevant) prior conviction is, indeed, a demonstrated fact.

    On Justice O’Connor’s dissent: her argument just seems to be a disagreement with the Court, and an illogical one in the following sense. She decries the techniques of argument made by Thomas, and by Stevens, in that they recite history and a few cases, but in her disagreement, she does exactly the same thing: she uses those just decried techniques, just more so.

    On Justice Breyer’s dissent: he opens with a logical error (or so it seems to me):

    In modern times the law has left it to the sentencing judge to find those facts which (within broad sentencing limits set by the legislature) determine the sentence of a convicted offender.

    A fact that increases the sentence beyond those “sentencing limits set by the legislature,” though, is a fact of the crime, not a sentencing item, since that fact relates to a different crime—one that gets a different sentencing range. After that, his argument, depending as it does on that logical failure, becomes invalid.

    Moreover, much of his argument, also, is simply an exaggeration of the case and an irrelevancy:

    There are, to put it simply, far too many potentially relevant sentencing factors to permit submission of all (or even many) of them to a jury. As the Sentencing Guidelines state the matter,

    “[a] bank robber with (or without) a gun, which the robber kept hidden (or brandished), might have frightened (or merely warned), injured seriously (or less seriously), tied up (or simply pushed) a guard, a teller or a customer, at night (or at noon), for a bad (or arguably less bad) motive, in an effort to obtain money for other crimes (or for other purposes), in the company of a few (or many) other robbers, for the first (or fourth) time that day, while sober (or under the influence of drugs or alcohol), and so forth.”

    None of which is applicable to the Court’s rule. The Court’s rule only applies to facts whose determination increase the maximum punishment applicable—which may be many, but that’s what juries are for. The bank robber who robs on the force of his personality is committing a different crime from that committed by a bank robber who robs on the force of his gun, for instance.

    Eric Hines

  2. Dear Mr. Hines,

    You are one thoughtful and smart layperson. Great job. I hesitate to say it (for your sake), but perhaps you ought to try your hand at law school!

    Thanks for your comments. All the best.


  3. You’re very generous, Sir.

    I have thought about law school (constitutional law). Unfortunately, I came to an interest in the law too late in life for that to be practical. My age isn’t a barrier, per se (there are rookie lawyers older than me), but the cost is quite high, the payback period from actually practicing the trade would be quite long, and the diversion of funds to pay for the schooling would put a serious hit on my wife’s (and my) retirement funding.

    Eric Hines

  4. Curiosity and aptitude aside, you’re much better off not going to law school. Much better. Good choice. It is better as a hobby/side interest. (Plus, you can’t study only constitutional law in law school. You get all the crap, too.)

  5. Lately, I’ve come around to the belief that when that sentencing guidance from the Supreme Court is like the weather in Florida. If you don’t like it, just wait five minutes and it will change.

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