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Wednesday, January 14, 2009

Oregon v. Ice: Apprendi Does Not Govern Consecutive Sentences

Ice was convicted by a jury of two counts of first-degree burglary and four counts of first-degree sexual abuse. The court sentenced him to a total of 340 months, with three of the sentences running consecutively, based on its finding that the two burglaries of which Ice was convicted constituted "separate incidents," and that Ice’s conduct during the burglaries (which formed the basis for four other convictions) demonstrated a "willingness to commit more than one offense" "caus[ing] or creat[ing] a risk of causing greater or qualitatively different loss, injury or harm to the victim." The Oregon Supreme Court reversed and remanded for resentencing, holding that the sentencing court–by imposing consecutive sentences based on its own findings and not based on jury findings–violated respondent’s rights under the Sixth Amendment, as construed in Apprendi and Blakely. The U.S. Supreme Court reversed, holding the Sixth Amendment’s jury trial right does not prohibit a judge from determining the predicate facts necessary to impose consecutive, rather than concurrent, sentences. Justice Ginsburg, writing for the five-Justice majority, held that "twin considerations–historical practice and respect for state sovereignty–counsel against extending Apprendi’s rule to the imposition of sentences for discrete crimes." Justice Ginsburg found that the decision of whether to impose consecutive or concurrent sentences has historically been the exclusive province of judges, and thus that permitting judges to find the facts necessary to that decision neither encroaches upon the jury’s historical role as fact finder nor threatens its place as a structural protection between the state and the accused. As for state sovereignty, Justice Ginsburg noted that Oregon’s attempt to "rein in the discretion judges possessed at common law to impose consecutive sentences at will" serves the policy interests in proportionality and guarding against disparities in sentence length. She also noted that extending Apprendi to this context would potentially affect judicial fact finding for other purposes (e.g., setting terms of supervised release, community confinement, fines or restitution, or ordering treatment), that it would be difficult for states to administer (i.e., may require bifurcated trials), and that there was no evidence that Oregon’s law reflected a "pernicious manipulation" of Apprendi’s protections. In a forceful dissent, Justice Scalia, joined by Chief Justice Roberts and Justices Souter and Thomas, argued that "Oregon’s sentencing scheme allows judges rather than juries to find the facts necessary to commit defendants to longer prison sentences, and thus directly contradicts what we held eight years ago and have reaffirmed several times since." He accused the majority of setting up a "formalistic distinction" between "facts bearing on the number of years a defendant will serve for one count (subject to the rule of Apprendi) and facts bearing on how many years will be served in total (now not subject to Apprendi)," and correctly noted both that the difference between consecutive and concurrent sentences is often more important to a defendant than a finding of guilt on any single count, and that each of the majority’s arguments had been previously rejected by Apprendi, Blakely, and/or Booker.