In Alleyne v. United States, the United States Supreme Court recently held that the Sixth Amendment requires a jury, not a judge, to make factual findings that raise the mandatory minimum sentence for an offense. This means that in Mr. Allen Ryan Alleyne’s case, where a judge concluded that a firearm was brandished during his crime, it violated the Sixth Amendment for that finding of brandishing to have yielded a mandatory minimum sentence of seven years imprisonment, when the jury’s factual findings alone yielded a mandatory minimum sentence of only five years imprisonment. In this column, I will examine the merits of the majority’s decision and consider Chief Justice Roberts’s dissenting arguments as they highlight a weakness in that decision.
The Right to Trial by Jury
The reason it matters whether a jury or a judge finds facts preliminary to sentencing is that the Sixth Amendment (as incorporated against the States by the Fourteenth Amendment) guarantees criminal defendants the right to a trial by jury. As most of us think of it, this means that a jury decides whether a criminal defendant did whatever it takes to satisfy the elements of a charged offense. In the case of a typical murder statute, for example, a jury might have to determine, based on the evidence presented by the prosecution, whether a defendant knowingly or intentionally acted in a manner that caused someone’s death.
Once the jury has found, based on the evidence, and beyond any reasonable doubt, that a defendant intentionally or knowingly carried out acts that resulted in someone’s death, the judge may sentence the defendant to a punishment for his crime. There might be a range of permissible sentences from which the judge may choose. A mandatory minimum sentence is the most lenient sentence available under the statute, and a mandatory maximum sentence is the harshest punishment that the judge may select. Within the permissible sentencing range, the judge may take facts about the crime into account in determining the appropriate sentence. Some of these facts, moreover, may be those that the judge herself found on the basis of the evidence, without the assistance of the jury. Under the Supreme Court’s cases, there is no Sixth Amendment problem with the judge’s making such factual findings and then choosing to sentence a defendant more harshly, within the range of permissible sentences, on the basis of those judicial fact-findings.
For a concrete illustration, consider the following hypothetical example. A jury convicts John Doe of murder for killing Bob Smith. The crime carries a mandatory minimum of five years imprisonment, and a mandatory maximum of thirty years imprisonment. The jury makes no findings regarding John’s motive for killing Bob, but the evidence in the case suggests that John’s motive was Bob’s race. The judge announces that she would ordinarily sentence a murderer to ten years imprisonment, but that in this case, she will sentence John to fifteen years, because she is convinced that John’s motive for murder was Bob’s race. This sentence is constitutionally permissible and raises no Sixth Amendment problems, under the Court’s doctrine.
The proper division of labor between a jury’s and a judge’s fact-finding becomes an issue, however, when the judge makes findings that upwardly alter the permissible sentence. Assume that the hypothetical murder statute we have been discussing provides that murder is the commission of an act that intentionally or knowingly results in someone’s death, and that murder is punishable by a minimum of five years imprisonment and a maximum of thirty years imprisonment. But in addition now, assume the statute provides that if the judge finds that the defendant was motivated by the race, religion, nationality, sex, or sexual orientation of the victim, then the judge may sentence the defendant to a maximum of forty-five years imprisonment, and the judge decides that forty-five years is the right sentence for a particular defendant. Now, unlike before, the judge can make factual findings that enable her to sentence the defendant more harshly than she could have done on the basis of the facts found by the jury alone.
When the judge’s factual findings authorize punishments that would otherwise have been off the table, it begins to look like the judge tried the defendant for a separate crime from the one for which the jury found him guilty. As the Supreme Court has explained, it is not enough for a defendant to have the right to have a jury decide whether he has committed a crime called “murder.” The jury must be the one to determine any facts that expose the defendant to a punishment of imprisonment (or execution) to which he would not otherwise have been exposed. If a fact falls into this category, then that fact is effectively an “element” of the offense and must be proved to the jury’s satisfaction, beyond a reasonable doubt.
To illustrate this protection, consider another hypothetical scenario. A state passes a criminal law that defines battery as an intentional, nonconsensual touching of another. The statute provides that if a jury finds that a prosecutor has proved the elements of battery beyond a reasonable doubt, then the defendant is subject to a sentence of two-to-three years imprisonment. However, the statute says further that if the judge determines that the defendant’s nonconsensual touching caused permanent and disabling injury to the victim, then the judge may sentence the defendant to a term of imprisonment of up to fifty years.
This statutory scheme would violate the Sixth Amendment. Although the crime at issue is technically battery in both sorts of cases, a judge rather than a jury makes the findings that enable punishment exceeding the maximum sentence for basic battery by forty-seven years. This was the insight of the Supreme Court’s decision in Apprendi v. New Jersey, which held that when a judge (rather than a jury) found facts that raised the mandatory maximum sentence beyond the term to which the defendant was otherwise exposed by the jury’s verdict, the defendant suffered a Sixth Amendment violation. Part of what makes a crime distinct as a crime is the penalty that may follow from a conviction for that crime. Where the statute allows the judge to find extra facts that the jury did not find, and where such factual findings open up the possibility of harsher sentences that would have been unavailable under the jury’s fact-findings, the statute effectively defines an additional crime, tried by the judge, in violation of the Sixth Amendment. In other words, facts that authorize otherwise-unavailable punishments are separate crimes for Sixth Amendment trial-right purposes.
Mandatory Minimum Sentences
In Harris v. United States, the Court confronted the question whether to extend Apprendi’s holding regarding mandatory maximum sentences to mandatory minimum sentences. That is, it asked whether a whole new crime is created when the judge’s factual findings increase the mandatory available minimum sentence. The Court in Harris held that there is not a whole new crime in those circumstances. Recently, however, in Alleyne v. United States, the Supreme Court overruled Harris and held that it violates the Sixth Amendment to allow a judge’s factual findings to increase the mandatory minimum sentence for a crime.
In the particular case before the Court, Alleyne was convicted of using or carrying a firearm in relation to a crime of violence, an offense carrying a mandatory minimum sentence of five years. The statute provided, however, that if the judge made a factual finding of “brandishing” (i.e., that the weapon was brandished during the commission of the crime), then the mandatory minimum sentence would be seven years, instead of five years.
In an opinion by Justice Thomas, the Court reasoned that a sentencing range is the equivalent of a punishment attached to a crime. If the punishment for a crime (as found by a jury) is two years, and a judicial finding changes that punishment to six years, then the defendant has suffered a Sixth Amendment violation, because the crime associated with the six-year-sentence was effectively tried by a judge, and not by a jury. For the same reason, concluded the Court, if the sentencing range associated with a crime (as found by the jury) begins at five years, and a judicial finding changes the bottom of that sentencing range to seven years, then the crime associated with the higher range (beginning with a mandatory sentence of seven years) was similarly tried by a judge and not by a jury, and the defendant has suffered the same kind of Sixth Amendment violation that I described just above.
There is something intuitively appealing about the majority’s approach. As we know from social psychology research, the baseline “price” has an effect on what the “buyer” is prepared to pay for a product. A judge who knows that she may sentence the defendant to no less than seven years in prison accordingly will, in the run of cases, likely select harsher sentences than the judge who may go as low as five years. Justice Thomas notes that yes, the judge in both cases is authorized by the jury’s factual findings to impose a seven-year sentence, but the fact that she is authorized to go no lower than seven years in the second case effectively means that the second defendant has been convicted—by a judge—of a crime that carries a higher sentence than the crime in the first case. A non-jury fact-finding, then, has raised the sentencing range as a whole, by cutting off its lower two years as a sentencing option.
Chief Justice Roberts’s Dissent
After reading Justice Thomas’s opinion for a majority of the Court, I was persuaded. Sentencing ranges do seem, basically, like the same thing as sentences, and any fact-finding that drives the range upward—at either its bottom or its top end—ought to be made by a jury, not a judge, as a Sixth Amendment matter. This logic would appear to apply as strongly to facts that trigger an increase in the mandatory minimum sentence as it does to facts that trigger an increase in the mandatory maximum sentence. Indeed, it may apply with even greater force, because while the latter permits the judge to impose a harsher sentence, the former actually requires the judge to do so. In his concurring opinion, Judge Breyer cited this a fortiori argument in explaining his decision to join (and thus create) the majority—it would be odd, he argued, if the judge could not make fact-findings that would permit her to exceed the original mandatory maximum, but could make fact-findings that would require her to exceed the original mandatory minimum.
This all sounds convincing until one reads Chief Justice Roberts’s dissenting opinion. Then, one thinks, the above juxtaposition does not appear quite so odd. It only seems odd if we think that the Sixth Amendment has something to do with supporting judicial discretion. If that were the case, then constraints on judicial discretion (such as increases in the mandatory minimum sentence in response to judicial fact-findings) would give rise to greater concern than expansions upon judicial discretion (such as increases in the mandatory maximum sentence in response to judicial fact-findings). That might also explain why a judge’s fact-findings may provide the basis for upward and downward movement in sentencing within the range supplied by law. The problem, however, is that the Sixth Amendment right to trial by jury has nothing to do with protecting a judge’s sentencing discretion.
Chief Justice Roberts provides a very useful illustration of the problem, in his dissenting opinion. He tells us to imagine that a jury finds a defendant guilty of using or carrying a firearm in relation to a crime of violence. The judge now finds as fact that the weapon was brandished. Under this hypothetical statute, though, brandishing does not raise the mandatory minimum from five years. The judge, instead, uses her discretion to sentence the defendant to seven years imprisonment, and in doing so, she cites the brandishing. Under the Court’s precedents, and on the approach of both the majority and the dissent, this seven-year sentence, enhanced by two years on the basis of the judge’s factual finding of brandishing (a finding that went beyond the jury’s fact-findings) raises no Sixth Amendment problem. Why not?
The answer, according to the majority, is that there is nothing wrong with having a sentencing range within which judges impose a sentence on the basis of facts that they find. The Sixth Amendment difficulty arises only when the judge’s finding changes the sentencing range.
But why? What is the difference between the sentencing regime under which the judge makes a fact-finding that leads her to impose a seven-year sentence because she wants to, on one hand, and the regime under which the judge makes a fact-finding that requires her to select a seven-year sentence, on the other? In both cases, the judge makes a finding that goes beyond the jury’s findings, and in both cases, the sentence that the defendant receives increases as a result of that finding. The difference is that in one case, it was the legislature that decided that the judge’s fact-finding would yield the increase, and in the other, it was the judge herself who made that decision. In both cases, however, it was the judge who made the requisite factual findings.
What makes Apprendi a more compelling case for a Sixth Amendment objection is the fact that the statute there enabled a judge’s fact-finding to trigger a higher sentence than what would have been the maximum available sentence in the absence of the judge’s factual finding. In other words, the jury’s factual findings provided a range of possible penalties, and the judge—through her own fact-finding—could impose upon the defendant a more severe punishment than anything in that original range. It was in this way that the defendant was subjected by the statute to trial by judge, rather than trial by jury. The fact found by the judge effectively became an element of a new offense.
In the case of the mandatory minimum sentence, by contrast, the judge remained bound by the jury’s factual findings to sentencing the defendant to no more than the statutory maximum. What the judge’s finding of brandishing does, under the statute in Alleyne, is to trigger the legislature’s power to raise the sentence within the range, rather than the judge’s power to do the same. It takes nothing away from the jury. In that sense, it is completely different from the regime struck down in Apprendi.
Some Residual Discomfort With Chief Justice Roberts’s Dissent
As I have said, I find Chief Justice Roberts’s dissent convincing. Yet I am left with some residual discomfort about it, and with a correspondingly positive feeling about Justice Thomas’s majority opinion. One reason for this feeling is that a range beginning at five years does feel different to me from a range beginning at seven years, even if they both have the same ceiling. The lack of room for an equitable decision on the judge’s part to keep the sentence at the lowest end of the range makes me uncomfortable. And Justice Thomas’s contention that a sentencing range is a sentence resonates for me, because of the psychology literature on anchoring effects.
I recognize, however, that my discomfort with requiring judges to impose a higher sentence probably says more about my trust of judges (relative to legislators) than it does about my views of the Sixth Amendment protection for jury fact-finding. If I were truly committed to jury fact-finding for steps upward within the sentencing range, then I would logically have to support a regime that denies judges a fact-finding role in the sentencing process. The judge could then decide to raise a sentence within the range only on the basis of facts already found by the jury beyond a reasonable doubt. And yet not a single Justice on the Court takes that view. Despite my discomfort, then, I think that, in the end, Chief Justice Roberts has the better of the argument.