So Long, Harris — Breyer’s on Board

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. 

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SCOTUS: No Automatic Reversal of Conviction When Judge Improperly Participated in Plea Discussions

Federal Rule of Criminal Procedure 11 sets forth various requirements and prohibitions relating to guilty pleas, including a ban on judges participating in plea discussions. If there is a violation, Rule 11(h) specifies that a “variance from the requirements of this rule is harmless error if it does not affect substantial rights” — no harm, no foul. However, at least two circuits have adopted a rule of automatic vacatur of the guilty plea if the judge participated in plea discussions. Other circuits, including the Seventh, have applied the general 11(h) harmless error rule in these situations.

Earlier today, in United States v. Davila (No. 12-167), the U.S. Supreme Court unamimously resolved the circuit split in favor of the general harmless error rule. As the Court saw it, the legal question was an easy one: “[N]either Rule 11 itself, not the Advisory Committee’s commentary on the Rule singles out any instructions [in Rule 11] as more basic than others. And Rule 11(h), specifically designed to stop automatic vacaturs, calls for across-the-board application of the harmless-error prescription . . . .”

The Court declined to adopt any bright-line rules regarding the application of the harmless-error rule: “Our essential point is that particular facts and circumstances matter.” Having determined that the lower court should have applied the harmless-error rule, the Court chose to remand for further consideration of the “particular facts and circumstances.” At the same time, the Court did say, “Had Davila’s guilty plea followed soon after the Magistrate Judge told Davila that pleading guilty be the ‘best advice’ a lawyer could give him, this case may not have warranted our attention.” The suggestion seems to be that a guilty plea entered “soon after” the judge recommended such a course of action would pretty clearly not fall into the category of harmless error. What made Davila’s case more difficult was the three-month delay between the Rule 11 violation and the guilty plea.

Cross posted at Life Sentences.

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Lindsay Lohan and the Law

lindsay-lohan-mug-shot-2011-la-sheriffI have two friends (and fellow classmates) who love to flood my email inbox and Facebook account with pictures of Lindsay Lohan. I think they love it more than summer break. Admittedly, I had this coming. These friends showed me a particularly startling picture of Ms. Lohan during a study break 1L year, and I let out a sort of shriek that I’m not proud of. I understand that actions have consequences. The pictures began rolling in during fall of 2011 and haven’t stopped since.

Feelings of disregard pervaded those first few months. But as the seasons changed, so did I. Most pictures came with headlines, and the more I read, the more I wondered how someone can so frequently break laws, violate probation, and skip out on court dates, and yet avoid any meaningful jail time. Then again, it’s not necessarily her fault that she’s been able to avoid consequences better than I have. The question, for me at least, is whether the justice system has treated her differently than it would you or I. And if so, why?

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