Hope Springs Eternal in the Heart of an Ex-Public Defender

January 22, 2013
By Hanging Out with Carl Gunn



  • Ten years ago, the Supreme Court held mandatory minimums aren’t subject to Apprendi.
  • Justice Breyer recognized at the time that made no sense; he’s signaled he might change sides; and the Supreme Court just heard argument on the question last week.
  • So, click here.



Remember all the excitement when Apprendi v. New Jersey, 530 U.S. 466 (2000) came down, holding that any fact that increases a defendant’s sentence – whether or not it’s called an “element” – has to be charged and found by a jury beyond a reasonable doubt? And remember how surprising and disappointing it was when the Supreme Court held in Harris v. United States, 536 U.S. 545 (2002) that Apprendi doesn’t apply to facts that only set or increase mandatory minimums? Justice Scalia for some inexplicable reason switched sides in Harris and the 5-4 vote for the defense position in Apprendi became a 5-4 vote against the defense position in Harris.

But we didn’t lose hope – at least we shouldn’t have – because there was a very interesting opinion by Justice Breyer “concurring in part and concurring in the judgment” in Harris. Justice Breyer, like almost all of us, was of the view that the effect on a maximum sentence at issue in Apprendi and the effect on a minimum sentence at issue in Harris could not be distinguished. He joined the majority only because he still thought Apprendi was wrongly decided. As he explained his position:

I cannot easily distinguish Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), from this case in terms of logic. For that reason, I cannot agree with the plurality’s opinion insofar as it finds such a distinction. At the same time, I continue to believe that the Sixth Amendment permits judges to apply sentencing factors – whether those factors lead to a sentence beyond the statutory maximum (as in Apprendi) or the application of a mandatory minimum (as here).

Harris, 536 U.S. at 569 (Breyer, J., concurring in part and concurring in judgment).

But however much he may disagree with it, Apprendi is now the law and Justice Breyer would seem bound to follow it. And he expressed this concern himself just three years ago, in oral argument in United States v. O’Brien, 130 S. Ct. 2169 (2010), where the Court had another, different mandatory minimum provision before it. In a musing which Justice Stevens quoted in his subsequent concurring opinion, Justice Breyer said: “But inHarris, I said that I thought Apprendi does cover mandatory minimums, but I don’t accept Apprendi. Well, at some point I guess I have to accept Apprendi, because it’s the law and has been for some time.” Tr. of Oral Argument 20 (question of Breyer, J.), quoted in O’Brien, 130 S. Ct. at 2183 n.6 (Stevens, J., concurring).

Well, the reconsideration that this musing suggests has now come to pass – in the case of Alleyne v. United States, No. 11-9335. The Supreme Court granted certiorari in that case expressly on the question of “[w]hether this Court’s decision inHarris v. United States, 536 U.S. 545 (2002), should be overruled,” Petition for Writ of Certiorari, Alleyne v. United States, No. 11-9335, 2012 WL 4750325 (U.S. March 14, 2012), and heard argument just last week, as reflected in the transcript of oral argument attached here. I won’t purport to be a Supreme Court expert trying to read the tea leaves about what they’ll actually decide, though for one expert’s discussion, see the bloghere, and for one favorable prediction, see the blog here. Hope springs eternal in the heart of an ex-public defender, however. And we should never give up. See, e.g., here.