Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
June 28, 2013
A little more than 10 years ago, U.S. Supreme Court Justice Stephen Breyer wrote a concurring opinion in Harris v. United States holding that the Court’s landmark decision in Apprendi v. New Jersey did not apply to the imposition of the minimum portion of a mandatory sentence. Apprendi found that the Sixth Amendment right to a jury trial prevented judges from enhancing criminal sentences beyond statutory maximums based on facts other than those decided by a jury.
Last week, Justice Breyer changed his mind. Breyer joined with Justice Clarence Thomas and thee colleagues in Alleyne v. United States and found that there should be no difference between facts supporting an increase in the maximum sentence and facts supporting the increase in a minimum sentence. Both required jury findings, he said.
The case concerned Allen R. Alleyne, who was convicted of robbery and a gun charge. The jury failed to find that Alleyne had brandished a gun, a determination that would have required a seven-year mandatory sentence. Merely possessing a gun would be a five year minimum.
However, at sentencing the judge found that Alleyne did indeed brandish a weapon and raised the minimum portion of his sentence to seven years from five years.
The Court found that the Sixth Amendment demands that a jury make a finding beyond a reasonable doubt for all of the facts that will determine the penalty range of a crime. Constitutionally, minimums matter just as much as maximums.
But, how much do “mandatory” minimums matter?
About 18 months ago I wrote here in The Cautionary Instruction about a 2009 Pennsylvania Commission on Sentencing report on mandatory minimums. The Commission made numerous findings including that fewer than half of all convictions for mandatory-eligible offenses resulted in the mandatory sentence.
According to Tamara Tabo at Abovethelaw.com, “the vast majority of criminal cases end with plea agreements, in which case there is no jury finding any of the elements beyond a reasonable doubt, including the ones that would trigger a mandatory minimum sentence.”
Prosecutors will now be sure to include in any mandatory minimum plea -- and there are not many -- the language needed to trigger the application of the mandatory.
As Tabo pointed out, if Allen R. Alleyne had stated in his plea colloquy that he had brandished a gun, he would have no Sixth-Amendment challenge. The Alleyne decision may mean little more than an additional step in an ever-growing sentencing day colloquy.
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