Oregon v. Ice (Decision)

As predicted, the US Supreme Court reversed the decision of the OR Supreme Court and held that judges, even under the Apprendi decision, have the prerogative of determining when a fact pattern or a series of crimes committed by the defendant is to be accorded a concurrent or a consecutive sentence. Thus, this decision had to do with the "reach" or "scope" of Apprendi.

But you can tell that things aren't crystal clear even for the Supremes on this one. The reversal was by a 5-4 vote, and it wasn't the 5-4 that you might have expected. Ginsburg (a "liberal") wrote the decision, but Alito (one of the most conservative Court members) concurred with her. Scalia was the leading dissenting voice (he has staked out his ground as a "pro-jury" man all the way), but Souter, a predicatable "liberal," also joined the dissenters. Thus, for those who are interested in the issue of criminal sentencing, this case shows that Apprendi is still very much alive.

Summary of Facts

"Respondent Ice twice entered an 11-year-old girl’s residence and sexually assaulted her. For each of the incidents, an Oregon jury found Ice guilty of first-degree burglary for entering with the intent to commit sexual abuse; first-degree sexual assault for touching the victim’s vagina; and first-degree sexual assault for touching her breasts. Ice was sentenced under a state statute providing, generally, for concurrent sentences, Ore. Rev. Stat. §137.123(1), but allowing the judge to impose consecutive sentences in these circumstances: (1) when “a defendant is simultaneously sentenced for … offenses that do not arise from the same … course of conduct,” §137.123(2), and (2) when offenses arise from the same course of conduct, if the judge finds either “(a) [t]hat the … offense … was an indication of defendant’s willingness to commit more than one criminal offense; or … “(b) [t]he … offense … caused or created a risk of causing greater or qualitatively different … harm to the victim,” §137.123(5). The trial judge first found that the two burglaries constituted separate incidents and exercised his discretion to impose consecutive sentences for those crimes under §137.123(2). The court then found that each offense of touching the victim’s vagina met §137.123(5)’s two criteria, giving the judge discretion to impose the sentences for those offenses consecutive to the two associated burglary sentences. The court elected to do so, but ordered that the sentences for touching the victim’s breasts run concurrently with the other sentences. On appeal, Ice argued, inter alia, that the sentencing statute was unconstitutional under Apprendi v. New Jersey, 530 U. S. 466 , and Blakely v. Washington, 542 U. S. 296 , holding that the Sixth Amendment ’s jury-trial guarantee requires that the jury, rather than the judge, determine any fact (other than the existence of a prior conviction) that increases the maximum punishment authorized for a particular crime. The appellate court affirmed, but the Oregon Supreme Court reversed, holding that the Apprendi rule applied because the imposition of consecutive sentences increased Ice’s quantum of punishment."

The Court held that "in light of historical practice and the States' authority over the administration of their criminal justice systems, the Sixth Amendment does not inhibit States from assigning to judges, rather than to juries, the finding of facts necessary to the imposition of consecutive, rather than concurrent, sentences for multiple offenses." Thus, the Court gave Apprendi a "narrow" ruling. The Syllabus of the Decision goes on to say:

"The Court declines to extend the Apprendi and Blakely line of decisions beyond the offense-specific context that supplied the historic grounding for the decisions. The Court’s application of Apprendi’s rule must honor the “longstanding common-law practice” in which the rule is rooted. Cunningham v. California, 549 U. S. 270 . 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. See Apprendi, 530 U. S., at 477. Because the Sixth Amendment does not countenance legislative encroachment on the jury’s traditional domain, see id., at 497, the Court considers whether the finding of a particular fact was understood as within the jury’s domain by the Bill of Rights’ framers, Harris v. United States, 536 U. S. 545 . In so doing, the Court is also cognizant that administration of a discrete criminal justice system is among the basic sovereign prerogatives States retain. See, e.g., Patterson v. New York, 432 U. S. 197 . These twin considerations—historical practice and respect for state sovereignty—counsel against extending Apprendi to the imposition of sentences for discrete crimes."

So, the majority framed the issue as one of competing values--the role of juries vs. the states' authority to administer their own systems of justice. The latter won out on January 14--but only barely...

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