Oregon v. Ice

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Authorship: Lyle Denniston

Contents

[edit] Briefs and Documents

Docket: 07-901

Issue: Whether, under Apprendi v. New Jersey (2000) and Blakely v. Washington (2004), a sentencing judge violates the Sixth Amendment by imposing consecutive sentences based on a fact not found by the jury or admitted by the defendant.


Merit briefs

Amicus briefs

Oral Argument: Transcript

Decision: Reversed and Remanded in an opinion by Justice Ginsburg

[edit] Pre-Argument Articles

Argument Preview

A test of the role of judges and juries in imposing sentences on individuals convicted of crimes – a test that has engaged the Supreme Court’s attention for eight years – continues as the Court turns its focus in Oregon v. Ice to sentences that have to be served back to back, instead of simultaneously.

Background

Since 2000, and the decision in Apprendi v. New Jersey, the Court has been moving each year to clarify the Sixth Amendment implications of criminal sentencing. The Apprendi decision brought about a virtual revolution in that field, with its mandate that any facts that lead to a higher sentence, if they go beyond the facts that justified a guilty verdict, cannot be decided by a judge, but must be determined by a jury. That, the Court said, is a critical aspect of the right to be tried by a jury. In the eight years since, the Court has scuttled or modified significantly a series of state and federal sentencing schemes, in the process expanding considerably the jury’s role in determining punishment.

As time has passed and precedents have built up, a controversy has been spreading among lower courts, especially state courts, over the impact – if any – that Apprendi would have on consecutive versus concurrent sentencing. In essence, the question they answered, in conflicting ways, is whether there is a necessary role for juries in opting for consecutive sentences. Put another way, the question is: do consecutive sentences amount to more severe punishment, so must the jury find the facts necessary to justify them?

Under common law traditions, trial judges had wide, often complete, discretion to determine how sentences were to be served. Some states, however, adopted laws to channel the judge’s use of discretion. In the process of analyzing those laws, state courts had to determine whether, and how, Apprendi applied.

The Supreme Court had shown little interest in answering that question. Nine times, it has turned aside appeals on that aspect of Sixth Amendment jurisprudence. It finally stepped in, with Oregon v. Ice (07-901).

That case involves Thomas Eugene Ice of Salem, Ore., an apartment house manager in Marion County. He was convicted of two counts of first-degree burglary, and four counts of first-degree sexual abuse. Prosecutors claimed that, on two separate occasions, he entered the apartment of a family in the complex, went into an 11-year-old girl’s bedroom, and each time touched her breast and vagina.

As a result, Ice faced trial on six separate offenses, the burglary offenses and the molestation counts. He was convicted on all six. Under Oregon law, sentences imposed for multiple crimes must be served concurrently, unless the judge finds that the offenses did not occur as part of the same course of conduct and that, even if they did, the two crimes resulted in separate harms. In Ice’s case, the judge found that the convictions for the two burglaries and four sex crimes arose out of separate incidents, and ordered consecutive sentences, totaling 340 months (28 years and four months). That total resulted from requiring that three of the sentences be served back-to-back.

Before the judge had selected the sentences, the Supreme Court decided the Apprendi case. Ice’s defense lawyers filed a new sentencing memo, arguing that the new decision meant that it was the jury’s task to consider any factors which could result in a more severe sentence The trial judge rejected the argument, and followed prosecutors’ recommendations on consecutive sentencing.

Ice’s lawyers took the issue to the Oregon Supreme Court, in a 5-2 ruling, overturned the consecutive sentences and ordered new sentencing. It rejected the state’s argument that the Court’s recent Sixth Amendment decisions did not even apply to the question of how multiple crimes should be served. Any sentencing determination that results in a longer total sentence, based on a judge’s factual findings, violates the jury trial right.

Petition for Certiorari

The state of Oregon filed its appeal on Jan. 4, raising the single question about the Sixth Amendment issue in the context of how sentences are to be served. The Court granted review on March 17 and slightly modified the question it would address (without changing the substance), putting it this way: “Whether the Sixth Amendment, as construed in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004), requires that facts (other than prior convictions) necessary to imposing consecutive sentences be found by the jury or admitted by the defendant.”

The appeal made two arguments: first, it cited the deepening split over the issue among state courts, and urged the Court to “establish a uniform application of the federal constitutional jury-trial right for all states,” and, second, it argued that the state Supreme Court ruling was “an unwarranted extension of Apprendi and Blakely beyond what this Court’s reasoning supports.” Those precedents, it contended, focus on sentences for individual offenses, not on total punishment.

Ice’s lawyers contended in response that the split was not nearly as wide as the state had argued, and noted the Supreme Court’s pattern of denying all appeals seeking to raise the consecutive sentence question in the Apprendi context. Very few states, the lawyers asserted, depart from the complete discretion approach of the common law.

Analysis

The Court, since Apprendi, has not been entirely consistent in shifting the task of choosing sentences – that is, resolving the facts underlying stiffer sentences -- from judges to juries. Indeed, in the federal sentencing arena, it began by shoring up the jury’s role under the Sixth Amendment even while simultaneously retaining the Sentencing Guidelines system – albeit in advisory rather than mandatory form. And, since then, it has given back to judges some of the discretion they had lost under the Sentencing Guidelines even while leaving the Guidelines more or less intact. Part of that is the result of the Court’s continuing deep division in its members’ perceptions about Apprendi and its sequels. This makes it significantly more difficult to predict how any new post-Apprendi issue is going to be resolved.

If the Court reacts sympathetically to the state of Oregon’s argument that its state Supreme Court has stretched the meaning of Apprendi and moved it into sentencing territory where, as the state insists, the Sixth Amendment has never applied, some Justices may hesitate to embrace that supposed expansion. Another factor is that the Justices most responsible for enhancing the jury’s sentencing role are the conservative Justices who believe that the Constitution gets much of its meaning from common law traditions. The tradition of judge-centered discretion on how sentences are to be served could help the state’s cause with those Justices.

If the Court sees consecutive sentences as harsher because they do, indeed, lengthen the time to be served, as Ice’s attorneys have argued and the Oregon Supreme Court found, that could bolster the jury’s role in finding the factual foundations for the added years behind bars.

[edit] Oral Argument Analysis

With Justice Stephen G. Breyer waging, seemingly alone, a rearguard effort to limit juries’ fact-finding role in determining criminal sentences, the Supreme Court on Tuesday displayed a strong inclination to stay on course in the eight-year effort to add to the jury’s power. This time, if that impression holds, the Court would let the jury — at least in a dozen or so states — settle the facts on how multiple sentences would have to be served: together, or back-to-back.

In Oregon v. Ice (07-901), the Court once again was exploring the meaning of the 2000 decision in Apprendi v. New Jersey, assigning to the jury rather than the judge the duty of finding the facts needed to support more severe punishment for a crime. The maximum punishment, the Court has made clear since then, is only that which is supported by facts settled by the jury.

The Oregon case appeared to give the Court a clearcut choice: follow long-standing tradition, and leave it to the judge’s discretion to find the facts that support making multiple sentences consecutive or concurrent, or abandon tradition and assign that to the jury.

While the Court leaned noticeably toward the jury option, one potential question went unanswered in the argument Tuesday: would the jury have to have that role as a general constitutional proposition, or have it only in states that had laws requiring that multiple sentences for two or more crimes normally be served concurrently unless some added fact supported consecutive sentencing? Perhaps as many as 13 states have such laws, so if their existence was necessary for the jury to have the fact-finding task to make sentences consecutive, that would give such an expansion of Apprendi less impact. Oregon has that kind of law, but Justice Antonin Scalia suggested that it was “unusual.”

Justice Scalia, who has made himself the most vigorous defender of the jury’s role in sentencing, left little doubt that he sees consecutive sentences as a harsher penalty than concurrent sentences, at least when a state has made concurrent sentences the priority choice. Told repeatedly by Oregon’s solicitor general, Mary H. Williams, that Apprendi and sequel rulings have had nothing to do with the consecutive sentencing issue and that extending them would run against history, Scalia simply responded that the Court has not let past practice get in the way of buttressing the jury’s role. “So what?” he said dismissively to the argument about history.

In fact, Scalia said, a fact that leads to consecutive sentences “can turn out to be the most significant fact for the defendant. I mean, it could lengthen his sentence enormously. It’s more important than many of the other facts that we leave to the jury.” (Indeed, in the case of Oregon inmate Thomas Eugene Ice, it did make an enormous difference: 340 months, instead of 90.)

Justice David H. Souter, who has been with Scalia in enhancing jury power, dismissed the history argument as beside the point. Apprendi, he said, changed the legal landscape, and it has to be applied “to this new situation.” The Court was concerned, he added, about the jury losing control as a result of “manipulation” of sentences, thus removing the jury as “a buffer” between the state and the individual. In the consecutive sentencing context, Souter sugested, the jury might lose control over the ultimate length of a prison sentence.

Justice Breyer tried to stem the flow of the argument by raising the question of whether a ruling giving the jury a role in the consecutive sentencing context would also mean it would have to play a similar role in punishment that takes the form of, say, restitution, forfeiture, probation, mandatory treatment for drug abusers, and trying a juvenile as an adult. “I can think of five or six where there might be a factual finding necessary” to one of those different forms of sentencing. The Oregon lawyer agreed, saying “we are litigating some of those very questions” in light of the Oregon Supreme Court ruling on consecutive sentencing.

When Justice Scalia countered that a ruling could be confined to sentencing, Justice Breyer retorted that sentencing includes restitution and probation. “I mean, there is a broad definition of the word ’sentence’ in the law which includes some of the things that I mentioned, though not all,” Breyer commented. (The impact of the Court’s jury-role decisions on restitution as punishment is now pending in a recently filed case, Lauersen v. U.S., 08-416.)

Thomas Ice’s lawyer, Ernest G. Lannet, senior deputy public defender in Salem, Ore., portrayed the case as a simple application of Apprendi’s “bright-line rule” — that is, a judge may impose no more criminal punishment than is supported by jury-found facts. Once a defendant is entitled to a concurrent sentence, Lannet suggested, any facts needed to switch it to a consecutive sentence are up to the jury.

Justice Ruth Bader Ginsburg suggested, however, that the Oregon case presented something of an “enigma.” By making concurrent sentences the norm, she said, the state was seeking to put restraints on the judge because it wanted to be “more defendant-friendly.” And yet, she added, Ice was claiming that this was unconstitutional. Lannet did not solve the “enigma” for her, merely explaining the history behind the state’s choice to limit consecutive sentencing.

Lannet did concede that one of the implications of his argument, and a fact that is now occurring in Oregon, was that there would in many instances be a need to have separate trial proceedings to accommodate an enhanced jury role in sentencing — that is, a trial at which the jury would find facts and determine guilt, and a sentencing proceeding in which the jury would find the facts necessary to support a particular punishment. That prospect might be a negative for some of the Justices; for example, Justice Anthony M. Kennedy seemed a bit concerned about it.

At any point of potential difficulty for Lannet, Justice Scalia rushed in to shore up his argument, reciting anew the notion that once a criminal defendant is given “an entitlement,” that means “it has to be found by the jury.”

Lennet did not hesitate when Justice Breyer explored some of the implications of ruling in Ice’s favor. He said that, if a fact were necessary to support forfeiture of a car as “necessary for the punishment,” that would have to have been found by the jury.

Breyer, of course, remained troubled: “If we are going to depart from what the Framers did in fact foresee in this kind of case and we do accept Apprendi as something different from what they did apply, does that require us to depart as well in all these other cases which have the kinds of difference that you have listened to?” The Court, Lannet responded, already has done so.

Lannet, in fact, was even able to summon an argument that pre-Apprendi history was on the side of shoring up the jury’s power.

[edit] Opinion Analysis

Dividing 5-4, the Supreme Court ruled on Wednesday that it does not violate the Constitution for a judge to impose consecutive sentences based on facts that were not found by the jury, but by the judge. The Court thus refused to extend the line of its cases on the Sixth Amendment jury trial right to limit judges’ discretion to require that sentences be served separately rather than simultaneously. Thus, a string of decisions that began with Apprendi v. New Jersey in 2000 is limited to sentencing for single crimes, not to the arrangement for punishing multiple offenses.

“The jury-trial right,” the Court majority said in Oregon v. Ice (07-901),” is best honored through a principled rationale that applies the rule of the Apprendi cases within the central sphere of their concern…Our disposition today…is faithful to that aim.”

In a second 5-4 ruling, the Justices ruled that evidence of a crime does not have to be excluded from a case if police obtained it while relying on erroneous information supplied by another police officer. The so-called “exclusionary rule” does not apply to evidence that results from police mistakes, but only to situations involving “systemic error or reckless disregard of constitutional requirements,” the Court concluded. The decision came in Herring v. U.S. (07-513).

In the sentencing decision, Justice Ruth Bader Ginsburg said for the majority that both historic practice — juries traditionally have had no rule in deciding for or against consecutive sentences — and “respect for state sovereignty” suggest the need to confine the Apprendi rationale to “sentences for discrete crimes.” Apprendi and later cases require that any fact that would lead to a longer sentence must be found by the jury, not the judge, unless the accused admitted the fact or it was the fact of a prior conviction.

On history, Ginsburg said, judges’ control of the arrangement for serving sentences for more than one crime “was so in England before the founding of our Nation, and in the early American States.”

On state sovereignty, Ginsburg wrote that states have a strong interest “in the development of their penal systems, and their historic dominion in this area…Beyond question, the authority of states over the administration of their criminal justice systems lies at the core of their sovereign status.”

Her opinion was joined by Justices Samuel A. Alito, Jr., Stephen G. Breyer, Anthony M. Kennedy and John Paul Stevens.

Justice Antonin Scalia, the Court’s most devoted champion of the Apprendi group of decisions, wrote for the dissenters; joining him were Chief Justice John G. Roberts, Jr., David H. Souter and Clarence Thomas. Scalia wrote that the Court’s justification for its ruling “is a virtual copy of the dissents” in the Apprendi group of cases. On the majority’s finding a difference between fact-finding for an enhanced sentence for one crime and for consecutive sentences for multiple-crimes, Scalia said: “I cannot understand why we would make such a strange exception to the treasured right of trial by jury.”

The case involved Thomas Eugene Ice, a manager of an apartment complex in Oregon. He was accused of assaulting an 11-year-old girl who lived in the complex. He was charged with twice entering that family’s apartment and sexually touching the girl when she was in her bedroom. He was charged with six crimes, and convicted on all six. Under Oregon law, sentences for multiple crimes are to be served together — concurrently — unless a judge finds that the crimes did not occur as part of the same course of conduct, and that, even if they did, the two crimes resulted in separate harms. In Ice’s case, the judge found that the charges of burglary and the sex crimes arose out of separate incidents. Ice was sentenced to a total of 340 months in prison, with three of the six individual sentences to run consecutively.

In the Court’s ruling limiting the reach of the “exclusionary rule” on criminal evidence, the Chief Justice’s opinion was supported by Justices Alito, Kennedy, Scalia and Thomas. Justice Ginsburg wrote a dissent, joined by Justices Breyer, Souter and Stevens, and Justice Breyer filed a dissent joined by Justice Souter.

The ruling cleared up an issue that the Supreme Court had left open in its 1995 decision in Arizona v. Evans. In that ruling, the Justices concluded that the exclusionary rule barring illegally obtained evidence does not require exclusion of evidence obtained in a search that was based upon erroneous information due to a court employee’s clerical error. The Court said it was not deciding then whether evidence would have to be excluded if police, not a court employee, were reponsible for the error.

That issue arose in the case of an Alabaman, Bennie Dean Herring, now serving a 27-month prison sentence for possessing illegal drugs and for having a gun as a felon. In his case, police had found the illegal drugs and the gun in Herring’s car after they had pursued him based on a report from police in a neighboring county — erroneous, as it turned out — that there was a warrant outstanding for Herring’s arrest. The officers learned of the error only after they had made the search and found the criminal evidence.

The Chief Justice’s opinion for the majority declared: “Our cases establish that suppression [of illegally seized evidence] is not an automatic consequence of a Fourth Amendment violation. Instead, the question turns on the culpability of the police and the potential of exclusion to deter wrongful police conduct. Here the error was the result of isolated negligence attenuated from the arrest. We hold that in these circumstances the jury should not be barred from considering all the evidence.” The exclusionary rule, Roberts added, is not an individual right, and applies only where it results in “appreciable deterrence.”

The majority summed up the rationale of the ruling this way: “To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence. The error in this case does not rise to that level.”

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