OREGON v. ICE

The U.S. Supreme Court recently ruled that the Sixth Amendment right to a jury trial does not prohibit judges from imposing consecutive, rather than concurrent, sentences based on facts not found by a jury. The ruling in Oregon v. Ice upheld an Oregon law allowing judges to impose consecutive sentences based on their own findings despite its rulings in two earlier cases requiring a jury find the facts leading to a higher sentence.

In 2000, the Court overruled a New Jersey appellate decision upholding an enhanced sentence based on the trial judge’s finding that the defendant’s crime was motivated by race. In Apprendi v. New Jersey, the Court ruled that the Sixth Amendment requires any finding of fact increasing the penalty for a crime beyond the prescribed statutory maximum to be submitted to a jury, and proven beyond a reasonable doubt. The Court excepted findings of prior convictions. In 2004, the Court applied its decision in Apprendi to another case, Blakely v. Washington. In Blakely, the Court ruled that a trial judge could not increase a sentence based on his finding that the defendant acted with “deliberate cruelty”.

In Oregon v. Ice, the defendant, Thomas Eugene Ice, had twice broken into the home an 11 year-old girl. During each visit, the defendant touched her breast and vagina. The defendant was charged with 6 separate offenses, one burglary and two counts of sexual abuse from each incident. The judge imposed three consecutive sentences based on his own factual finding consistent with the requirements of the Oregon statute. The Oregon Appellate court affirmed the sentence, but the Oregon Supreme Court found that the Apprendi decision required the jury make the findings that were made by the judge at trial. The U.S. Supreme Court overruled that decision.

Writing the majority opinion, Justice Ginsburg determined that the Court’s prior rulings in Apprendi and Blakely were not dispositive. Neither case involved a judge’s determination to impose consecutive rather than concurrent sentences, and both were limited to their own offense-specific context. The Ice case involved a statute granting certain limited discretion to trial judges in imposing impose consecutive sentences. Consecutive sentences could be imposed if the trial court made certain specific findings of fact.

Free of its prior rulings, the Court reviewed the history of state consecutive versus concurrent sentencing laws. It found that states traditionally gives judges wide discretion to run sentences consecutively or require judges to make certain factual findings directing their discretion. The Oregon statute represented the latter tradition. Since the jury had already convicted the defendant of multiple offenses, the judge’s findings did not encroach on the jury’s traditional role, so the Court upheld the trial judge’s sentence.

The ruling appears to create an exception to the usual Sixth Amendment jury trial requirement for sentencing decisions involving the specific question of whether to impose consecutive or concurrent sentences for multiple offences. In his dissent, Justic Scalia said that he could not understand why the Court would make such a strange exception to the treasured right of trial by jury.