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Extending Apprendi

It's somewhat odd that Antonin Scalia, one of the most conservative justices in Supreme Court history, would have as the primary legacy of his 28 years on the Court two of the best decisions for criminal defendants ever to be handed down.  One of them, Crawford v. Washington, expanding the scope of the Confrontation Clause, has taken a beating in recent years, as the decision last week in Williams v. Illinois (discussed here and here) showed.  But as indicated by Southern Union v. US, another of the Court's decisions last week, Scalia's work in Apprendi and Blakely, expanding the scope of a defendant's right to trial by jury, is alive and well.

Southern Union had been indicted for a violation of a Federal environmental law, the indictment specifying that the offense had occurred for 762 days.  That became important because the penalty involved, a $50,000 fine, could be levied for each day of violation.  And that's what the trial judge did:  after the jury convicted Southern Union, the judge determined that the penalty was to be imposed for each of the 762 days, totaling over $38 million.

Southern Union's argument on appeal was simple.  In its earlier decisions in Apprendi v. New Jersey and Blakely v. Washington, the Court had held that any fact, other than a prior conviction, which increases the maximum penalty for a crime has to be proved to a jury beyond a reasonable doubt, or admitted by the defendant.  Southern Union argued that without a jury finding as to the amount of days the violation lasted, only a single day's fine could be imposed.  The Court easily agreed, by a 6-3 margin, Breyer, Kennedy, and Alito being the dissenters.

They easily agreed because it was an easy decision; the dissenters did so not only because they believed that Apprendi/Blakely shouldn't be extended to fines, but because they disagreed with the entire Apprendi/Blakely line of cases, and consistently have.  So the one clear lesson that can be drawn from Southern Union is that there is now a solid majority in favor of the line.  Blakely was decided by a 5-4 vote, and four of the justices are no longer on the Court.  Only Alito, who replaced O'Connor, has followed her in opposition. Oregon v. Ice, the only decision which has broken with Blakely (it allowed judicial factfinding for imposition of consecutive sentences), increasingly looks like an outlier.  In fact, Ginsberg, who wrote the opinion in Ice, is firmly in the majority in Southern Union.

So the logical question is, how much farther can Blakely be extended?  There are a couple of possibilities.  First, though, it's necessary to understand exactly what Blakely holds.  The Court did not say in Southern Union that a jury has to determine the amount of the fine.  It merely extended the Blakely rule:  the maximum sentence that a court may impose is that based on facts found by a jury or admitted by the defendant.  The jury in Southern Union was asked only to find whether the company had violated the law, not for how many days it had done so, and so the judge could only impose the fine for a single day's violation.

But what Southern Union did do was expand the concept of "sentence" beyond imprisonment to "penalties" and "punishments," and there's one other economic imposition beyond fines that would arguably fall into that category:  restitution.  I say "arguably," but the opposing side doesn't have much of an argument:  restitution, after all, is imposed as part of the criminal sentence at a sentencing hearing, and can be enforced with criminal penalties.  (Failure to pay restitution can be a probation violation, and lead to imprisonment.)  Even the dissenters in Southern Union agreed that it could be applied to restitution.

On the other hand, one might argue that a sentencing scheme which allows the judge to determine restitution doesn't really implicate Blakely, because the amount of the restitution doesn't depend upon any facts found by the jury.  If the jury convicts the defendant of felonious assault, its job is done; the judge then has a theoretically infinite amount of restitution he can impose, and it's up to him to sort through the medical bills and other "facts" to make that determination.  That runs contrary, though, to Blakely's concept that it's the jury which decides facts.  Moreover, that argument runs into problems in at least two areas:  First,where the amount of restitution exceeds the applicable fine.  Take that felonious assault case, for example, where the victim claims $30,000 in medical bills.  If the jury, for whatever reason, convicts the defendant of only simple assault (a misdemeanor which carries a maximum $1,000 fine), can the judge still impose $30,000 for restitution?  Couldn't the jury's verdict be interpreted as a finding that the victim hadn't in fact suffered serious physical harm, calling into question the validity of the medical bills?

The other area of limitation would be where the crime is defined by a monetary threshhold.  Let's say your the defendant is implicated in a complex fraud scheme, and for whatever reason takes a plea to a fifth degree felony theft, which is statutorily defined as a theft of from $1,000 to $7,500.  A good argument could be made that Southern Union prohibits a judge from imposing restitution of more than the $7,500 limit for that offense; that's the "fact" admitted by the defendant.  A number of districts here in Ohio have already held that restitution can't exceed the maximum, but if your district hasn't, Southern Union is the way to go.

And the solid majority garnered in Southern Union may force reappraisal of some pre-Blakely precedents.  One is Almandarez-Torres v. US, a 1998 Supreme Court case which held that a prior conviction, used for a sentencing enhancement, can be determined by the judge.  This remains just about the sole exception to Apprendi, despite the fact that Thomas, who provided the 5th vote in Almandarez-Torres, subsequently admitted that he'd been in error in doing so.  The other is Harris v. US, a 2002 decision upholding the judge's finding that a defendant had brandished a firearm during an offense, thus requiring the judge to impose a seven-year minimum sentence; the Court held that Apprendi wasn't applicable because whether the defendant brandished the weapon was a "sentencing factor" rather than an "element" of the crime.  Those issues aren't likely to arise in Ohio; here prior convictions which are necessary to enhance sentences (RVO specs, prior domestic violence of OVI offenses) have to be proven to a jury, although in the former case they're often tried to the judge, for obvious reasons.  But they're of great importance in Federal cases, which often allow a judge determine a sentence based on his finding of the amount of a drug of whether a defendant's prior conviction constituted a crime of violence.

On other thing to keep in mind here:  Apprendi/Blakely can be a two-edged sword.  The obvious way to get around those decisions is for the legislature to bestow more discretion upon trial judges.  That's exactly what happened in State v. Foster.  The Ohio legislature in 1996 crafted a set of sentencing reforms that called for "guided discretion":  a judge had to make certain findings before imposing more-than-minimum, maximum, or consecutive sentences.  In Foster, the Ohio Supreme Court held that requiring those findings violated Blakely.  The result?  The requirement for findings was tossed out, and judges were given virtually unfettered discretion to sentence a defendant anywhere within the statutory limits.  Scalia's legacy here was certainly a boon to Federal defendants -- it resulted two years later in the Booker/FanFan decisions, which rendered the Sentencing Guidelines advisory instead of mandatory -- and to other state defendants, but it was an unmitigated disaster for defendants here in Ohio.


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