So Long, Harris — Breyer’s on Board

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Category: Criminal Law & Process, Federal Criminal Law & Process, Federal Sentencing, Public, U.S. Supreme Court
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Yesterday, in a long-anticipated move, the Supreme Court finally overturned its 2002 decision in Harris v. United States. The new decision in Alleyne v. United States extended jury-trial rights to mandatory minimum sentences. Justice Breyer’s “flip” from his position in Harris made the difference.

In Apprendi v. New Jersey (2000), the Court held that a defendant has a right to a jury trial regarding the facts that may increase the maximum sentence to which he is exposed. Breyer dissented in Apprendi and has steadfastly maintained ever since that Apprendi was wrongly decided.

Two years later, in Harris, the Court decided not to extend Apprendi to the facts that raise a defendant’s minimum sentence. Breyer was part of the 5-4 majority in Harris, but stated in a concurring opinion that he could see no reason to distinguish increasing the maximum from increasing the minimum. Thus, Breyer’s vote in Harris was simply another vote against Apprendi. This immediately raised the expectation that some day, when Breyer was ready to give up the fight against Apprendi, he would be willing to overturn Harris.

Some day has come. 

In Alleyne, Breyer provided the crucial fifth vote to overturn Harris. In a short concurring opinion, Breyer reiterated his view that Apprendi was in error, but stated, “Apprendi has now defined the relevant legal regime for an additional decade [since Harris]. And, in my view, the law should no longer tolerate the anomaly that the Apprendi/Harris distinction creates.”

I don’t see much of particular interest in Justice Thomas’s majority opinion; Thomas authored the dissent in Harris, which he has now been able to rewrite as an opinion for the winning side.

Justice Sotomayor’s concurring opinion was more notable for its effort to reconcile overturning Harris with the doctrine of stare decisis. (Thomas has never had much use for stare decisis, so he predictably gave short shrift to the doctrine in his opinion.) Sotomayor, joined by Justices Ginsburg and Kagan, affirmed that overturning precedent requires a “special justification.” Here, though, such a special justification was present:

As an initial matter, when procedural rules are at issue that do not govern primary conduct and do not implicate the reliance interests of private parties, the force of stare decisis is reduced. See United States v. Gaudin, 515 U. S. 506, 521 (1995); Payne, 501 U. S., at 828. And any reliance interest that the Federal Government and state governments might have is particularly minimal here because prosecutors are perfectly able to “charge facts upon which a mandatory minimum sentence is based in the indictment and prove them to a jury.” Harris, 536 U. S., at 581 (THOMAS, J., dissenting). Indeed, even with Harris in place, prosecutors already sometimes charge such facts and seek to prove them to a jury. . . .

In this context, stare decisis does not compel adherence to a decision whose “underpinnings” have been “eroded” by subsequent developments of constitutional law. Gaudin, 515 U. S., at 521. In rejecting a constitutional challenge to a state statute that increased a defendant’s minimum sentence based on judicial factfinding, McMillan relied on a distinction between “elements” and “sentencing factors.”477 U. S., at 86. That distinction was undermined by Apprendi, where we held that a legislature may not “remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed.” 530 U. S., at 490 (internal quotation marks omitted).

In Harris, we squarely confronted the question whether “McMillan stands after Apprendi.” 536 U. S., at 550. Five Members of the Court recognized that the cases were in fact incompatible. See id., at 569 (BREYER, J., concurring in part and concurring in judgment); id., at 572, 583 (THOMAS, J., dissenting) (“[O]nly a minority of the Court embrac[es] the distinction between McMillan and Apprendi that forms the basis of today’s holding”). . . .

We have said that a decision may be “of questionable precedential value” when “a majority of the Court expressly disagreed with the rationale of [a] plurality.” Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 66 (1996). And Harris has stood on especially weak ground because its vitality depended upon the possibility that the Court might retreat from Apprendi. See Harris, 536 U. S., at 569–570 (opinion of BREYER, J.). That has not happened. Instead, while individual Members of this Court have continued to question Apprendi, see post, at 1–2 (opinion of BREYER, J.); post, at 1–2 (ALITO, J., dissenting), its rule has become even more firmly rooted in the Court’s Sixth Amendment jurisprudence in the decade since Harris. . . .

As a result of these decisions, Harris has become even more of an outlier. For that reason, I agree that it is appropriate for the Court to “overrule Harris and to apply Apprendi’s basic jury-determination rule to mandatory minimum sentences” in order to “erase th[is] anomaly” in our case law. Post, at 2–3 (opinion of BREYER, J.). I do not suggest that every single factor that supports the overruling of precedent is present here. Post, at 3, n. * (ALITO, J., dissenting). But particularly in a case where the reliance interests are so minimal, and the reliance interests of private parties are nonexistent, stare decisis cannot excuse a refusal to bring “coherence and consistency,” Patterson, 491 U. S., at 174, to our Sixth Amendment law.

Sotomayor thus suggests a lesser deference to precedent in cases presenting procedural questions, particularly when the precedent lacked majority agreement on the reasoning. Expect this opinion to be invoked in any number of crim pro cases in the next few terms, especially since Sotomayor’s reasoning was partially, if summarily, echoed in footnote 5 in the majority opinion.

Whatever the significance of its discussion of stare decisis, Alleyene may prove the most practically important decision in the Apprendi line of cases since Blakely v. Washington (2004), which resulted in fundamental changes to many sentencing guidelines systems. Mandatory minimums are a routine aspect of criminal-law practice in many jurisdictions, including the federal system, often providing prosecutors with a powerful source of leverage in plea negotiations. Alleyne now reduces that leverage by making it procedurally more onerous for prosecutors to have mandatory minimums applied. How much more onerous will vary a great deal from case to case; in many, the loss of leverage will be insignificant, but in some it may be decisive. Although Alleyne is not likely to result in a large increase in the number of jury trials, it may perceptibly alter the prosecutor-defendant balance of power in plea negotiations in certain kinds of cases in some jurisdictions.

Alleyne’s impact, however, will be substantially constrained by another “anomaly” (to use Breyer’s term) in the Apprendi line of cases: the Apprendi jury-trial right does not apply to sentence enhancements based on prior criminal convictions. The leading case is Almendarez-Torres v. United States (1998). Since many of the most important mandatory minimums — think, for instance, of “three strikes” laws — are triggered by criminal history, the Almendarez-Torres exception actually constitutes a huge gap in Alleyne‘s coverage.

Might Almendarez-Torres be in jeopardy now? Alleyne should inspire defense counsel to redouble their efforts to have A-T overturned. After all, the decision is of about the same vintage as Harris and seems no less anomalous relative to the Apprendi line of cases. Bearing in mind Sotomayor’s point about the diminished force of stare decisis in procedural cases, the Court should be open to revisiting A-T now. Notably, Breyer’s vote in A-T was necessary for the 5-4 majority, just as it had been in Harris. If Breyer really has made his peace with Apprendi and is now committed to eliminating doctrinal anomalies in this area, A-T may not long stand.

Cross posted at Life Sentences.

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