Justices rule jury must decide facts that increase mandatory minimum sentences

The U.S. Supreme Court handed down a major ruling on mandatory minimum sentences on Monday. The case concerned whether a defendant's Sixth Amendment right to a trial "by an impartial jury" extends to facts relating to punishment. The issue was whether punishment is an element of a crime, and if so, to what extent? In Alleyne v. United States, 2013 DJDAR 7678 (June 17, 2013), Justice Clarence Thomas, writing for a slim majority of 5-4, overturned the court's earlier rulings that a jury verdict was not required for sentencing ranges that exceed the statutory minimum - only the statutory maximum.

While some commentators have argued that this decision will lead to a reduction of sentences in drug cases - which occupy a large part of federal criminal jurisprudence - these suggestions are misplaced.

First, most cases in the federal system result in plea bargaining. In federal court, this generally means that the U.S. attorney and the defendant enter into an agreement whereby the government will argue for the applicability of a certain guideline range within a pre-agreed spectrum, and the defendant will argue that the other end of the spectrum should apply. In these cases, the judge will ultimately decide the sentence upon the agreement of the parties, within the limits proscribed by the plea agreement. Alleyne does not affect a judge's ability to sentence pursuant to a plea agreement.

Second, factors relating to whether a mandatory minimum sentence should apply are already litigated by juries where those cases go to trial. This is because for those crimes, the sentencing range increases the upper range as the mandatory minimums increase. For example, the maximum sentence for possessing 100 marijuana plants is 40 years, whereas the maximum sentence for possessing 1,000 plants is life. Under Apprendi v. New Jersey (2000), any fact that increases the prescribed range of punishment is considered an element of the crime. This means that for trials involving marijuana and other drugs, juries are already making findings beyond a reasonable doubt pursuant to precedent that has been upheld and extended through Alleyne.

Alleyne relates to federal gun cases - and a lot of prison time, a cost to both defendants and the public at large - and is a welcome, rational voice in an otherwise vitriolic and somewhat unrealistic nationwide gun debate.

Allen Alleyne was charged as an accomplice in a federal bank robbery. Alleyne's accomplice used a gun to persuade the victim to surrender money. He was charged with federal crimes, including using and carrying a firearm in relation to a crime of violence, which calls for a mandatory minimum sentence of five years; seven years if a firearm is "brandished"; and 10 years if it is discharged. Though the jury convicted Alleyne of the crime of using a firearm, they did not find true the special allegation that the firearm was "brandished." Nevertheless, the federal judge imposed a sentence of seven years, finding that he had brandished a weapon even though the verdict forms made clear that the jury did not find true beyond a reasonable doubt that the defendant had brandished the firearm. On appeal, Alleyne argued that he should not receive more than five years. Both the federal district court and the 4th U.S. Circuit Court of Appeals ruled against Alleyne on the basis of stare decisis.

Alleyne reverses stare decisis in Harris v. United States (2002) and McMillon v Pennsylvania (1986). McMillon held that facts that increase a mandatory minimum can be determined by a judge by a preponderance of the evidence rather than a jury pursuant to a beyond-a-reasonable-doubt standard.

Apprendi marked the first chink in the McMillon rationale. Sixteen years after McMillon, the Apprendi court ruled that the logic underlying McMillon could not be used to uphold a New Jersey statute that increased the statutory maximum where a judge made the determination that racial bias motivated the crime.

Only two years after Apprendi, however, the court ruled in Harris that a factor increasing the mandatory minimum punishment could be determined by a judge on a preponderance standard. In Harris, the court made an illogical distinction between what it considered "elements of the crime" to be decided by a jury and "sentencing factors" a judge could decide. Interestingly, Harris concerned the exact same statute as was at issue in Monday's ruling.

Justice Stephen Breyer, writing a concurrence in Alleyne, notes that until Alleyne, federal sentencing law contained an illogical anomaly in its determination of elements versus sentencing factors which could neither logically nor fairly be parsed.

According to Justice Thomas' analysis in Alleyne, the greatest controversy stems from a disagreement over what factors are considering "sentencing factors" and what are considered elements of the crime. He notes that historically, common law in the U.S. defined crimes to include facts relevant to the punishment of those crimes. The post-Apprendi ruling in Harris stood in stark contradiction to that history and bedrock of due process under the Sixth Amendment.

While Alleyne does not directly impact drug cases, it does so indirectly in that it represents a return to historical rights of the accused in the U.S., and is a step toward justice.

This past week, it seems, was a success for drug decriminalization. The U.S. House of Representatives just approved an amendment to a farm bill, legalizing in some settings the industrial cultivation of hemp.