Since Oregon v. Ice came down in January, I’ve written numerous posts arguing that the US Supreme Court decision upholding Oregon’s law, which permitted judicial factfinding for imposition of consecutive sentences, implicity overruled State v. Foster’s conclusion that Ohio’s law requiring the same thing was constitutionally infirm.  But a closer reading of Ice, and a little inventive reasoning, could lead one to argue that Foster got it completely wrong:  there was no problem with Ohio’s sentencing law.  Here’s how that argument goes.

First, Ice represents a rollback of the Apprendi rule.  In Apprendi v. New Jersey, the Court had held that any fact, other than a defendant’s criminal history, essential to sentencing had to be found by a jury.   Ice injected an additional factor into the mix:  whether the fact was one that was traditionally within the province of the jury or the judge.  The Court looked to the “long-standing common-law practice in which the [Apprendi] rule is rooted”:

The rule’s animating principle is the preservation of the jury’s historic role as a bulwark between the State and the accused at the trial for an alleged offense. Guided by that principle, our opinions make clear that the Sixth Amendment does not countenance legislative encroachment on the jury’s traditional domain. We accordingly considered whether the finding of a particular fact was understood as within “the domain of the jury . . . by those who framed the Bill of Rights.”

The next line from that quote is equally important:  “In undertaking this inquiry, we remain cognizant that administration of a discrete criminal justice system is among the basic sovereign prerogatives States retain.”  This is a concept repeated throughout the opinion:  while there are obviously constitutional limitations on what states can do, some deference to their sovereignty on sentencing issues is warranted.

Second, Apprendi and its progeny all involved cases where the particular fact was well within the jury’s province.  Apprendi was sentenced to an “enhanced” prison term because of a judge’s determination that the crime was committed with a racial bias.  In Ring v. Arizona, the jury’s verdict of capital murder would result only in a life sentence; it was the judge’s determination that three robbers, Ring had been the one who’d actually killed the victim that condemned Ring to death.  In Blakely v. Washington, the judge imposed a sentence 37 months greater than the standard permitted by law by finding that the defendant had acted with “deliberate cruelty.”  In US v. Booker, the defendant was convicted of possession with intent to distribute at least 50 grams of crack, and the jury heard evidence that he’d had 92.5 grams in his duffel bag.  That would have gotten him a 21-year sentence, but the judge gave him 30 after finding, by a preponderance of the evidence no less, that he had possessed 566 grams more.  And in Cunningham v. California, the defendant received an additional four years in prison because the judge found “aggravating factors” – that the victim was vulnerable and that the defendant’s conduct was violent — that warranted an ”upper term” sentence.

Third, the factual findings that the Foster court found problematic in Ohio law are not the type of findings that have traditionally been within the jury’s purview.  Interestingly, the judicial factfinding under Ohio law that is most comparable to that in Apprendi and its progeny is R.C. 2929.12, which spells out the seriousness and recidivism factors.  Foster found those Blakely-compliant because they did not control sentencing:  they were factors to be considered in arriving at a sentence within the statutorily mandated range, but not facts which had to be determined in order to arrive at a particular sentence.

Foster did determine that two aspects of Ohio law violated Blakely.  The first was that a judge had to impose a minimum sentence unless the offender had previously served a prison term, or the court determined that “the shortest prison term will demean the seriousness of the offender’s conduct or will not adequately protect the public from future crime by the offender or others.”  The second was that a trial court couldn’t impose a maximum sentence unless it determined that the offender had committed “the worst form of the offense” or ”posed the greatest likelihood of committing future crimes.”

But look at those requirements again.  Are those really the types of “judicial factfinding” found in Apprendi, Ring, Blakely, Booker, and Cunningham.  The finding that the defendant had previously served a prison term, necessary for imposing more than a minimum sentence, obviously meets Apprendi‘s exception for facts pertaining to a prior conviction.  The others — whether the sentence “demeans the seriousness of the crime,” won’t “adequately protect the public,” or whether the offender has committed the “worst form of the offense” or poses the “greatest likelihood of committing future crimes” — have never been within the purview of  a jury, but on the contrary have always been among the considerations a judge makes in sentencing decisions.

What’s more, it’s difficult to see how such determinations could be made by a jury.  A judge has a far better frame of reference for what constitutes the “worst form of the offense” than a jury, most of whose members are hearing a criminal case for the first time.  And a jury’s consideration of other factors might complicate their determination of guilt; Ice noted that the under the Oregon statute

The predicate facts for consecutive sentences could substantially prejudice the defense at the guilt phase of a trial. As a result, bifurcated or trifurcated trials might often prove necessary.

Questions presented by the Ohio statute, such as protection of the public and the likelihood of recidivism, would bring into issue a defendant’s criminal past, and raise similar problems.

The argument is far from bulletproof:  Ice, after all, was concerned solely with the question of consecutive sentencing.  Still, there’s a lot of good language in the opinion which could be used to argue beyond that.  What’s more, there’s a numbers issue.  Scalia, Thomas, and Souter have ruled for the defendant in every one of the six sentencing cases, and Roberts joined them for the two that have been decided since he became Chief Justice.  Up until Ice, so had Ginsberg and Stevens.  In Ice, they joined the faction which had ruled against the defendant in every one of those cases — Breyer, Kennedy, and Alito.  Souter’s going to be replaced by Sotomayor, who will be the only justice with experience as a trial judge, and may be anticipated to be more accepting of arguments focused on factors traditionally within the purview of those judges.

The SB 2 sentencing reforms weren’t any great shakes, but I don’t know anybody who doesn’t think that, post-Foster, Ohio’s sentencing scheme is a disaster.  I’ve written that reversing Foster on the consecutive sentencing will go a long way toward resolving that, but there’s no reason not to go for the whole ball of wax.