by Joe Austin
On Monday, January 14, the Supreme Court will hear oral argument in Alleyne v. United States. In Alleyne, the Court will reconsider whether the Sixth Amendment’s right to a jury trial requires that a jury, not a judge, find those facts that increase the minimum of a sentence.
The Facts in Alleyne
On September 7, 2010 a jury convicted Allen Ryan Alleyne of robbery and using a gun in the commission of a crime of violence. The jurors issued a special verdict finding that Alleyne used or carried a firearm in the commission of the robbery but, notably, had not “brandished” it. Nevertheless, Alleyne is currently serving a seven-year mandatory minimum sentence for “brandishing” a gun.
The firearms statute under which Alleyne was convicted prescribes a five-year mandatory minimum sentence for using a gun in the commission of a crime of violence, including robbery. Brandishing a gun during such a crime, however, triggers a seven-year mandatory minimum sentence. Alleyne is currently serving the longer sentence for aspects of a crime that the jury specifically said he did not commit.
Despite the jury’s findings, the district judge found by a preponderance of the evidence that Alleyne had brandished a gun and sentenced him to the corresponding seven-year mandatory minimum. Citing the Supreme Court’s 2002 decision in Harris v. United States, the judge concluded that “brandishing” is a sentencing factor for a judge to determine, not an element of the underlying crime. Had this been considered an element of the crime, the prosecutor would have had to convince a jury, beyond a reasonable doubt, that the defendant “brandished” the weapon. Instead, the prosecutor only had to convince the judge, under the lower burden of proof for judicial sentencing determinations, to secure the higher sentence.
In 2000, the Supreme Court issued a groundbreaking ruling in Apprendi v. New Jersey, holding that juries, not judges, must find “any fact [other than a prior conviction] that increases the penalty for a crime beyond the prescribed statutory maximum . . . .” In Apprendi, the Court barred judicial fact-finding to raise the sentencing ceiling, but just two years later, in Harris, it declined to extend this rationale to cover raising the sentencing floor. In Harris, the Court considered the same firearms statute under which Alleyne was convicted and held that it was not unconstitutional for a judge to find a factor that raised the minimum sentence.
On Monday, the Court will hear arguments in Alleyne and consider whether to overturn Harris. Justice Breyer, for one, may be willing to reconsider his opinion. He cast the crucial fifth vote in Harris, but conceded in a separate opinion that he “cannot easily distinguish Apprendi . . . from this case in terms of logic.”  Nonetheless, he demurred from extending Apprendi because he “[could not] yet accept its rule.”  Since Harris, though, Apprendi’s principle that juries must find the “facts that increase the prescribed range of penalties to which a criminal defendant is exposed” has been affirmed in numerous cases. Justice Breyer recognized as much in comments he made during an oral argument in 2010.
Overturning Harris would increase doctrinal consistency and enhance the integrity and fairness of the federal sentencing system.
Significance of Sentencing Minimums
While significant judicial attention has been paid to statutory maximum sentences, it is the minimums that have the greatest impact on the ground. Under some federal statutes prescribing mandatory minimums, the minimum serves as the presumptive penalty; the ceiling is rarely, if ever, reached.
The firearms statute under which Alleyne was charged is a case in point. In Harris, the Court assumed that this statute implied maximum terms of life imprisonment for using or carrying, brandishing, and discharging a gun. But the sentences that are actually imposed for this law hew closely to the enumerated mandatory minimums of five, seven, and ten years.  Thus Apprendi’s protection regarding statutory maximums means little. Harris allows an end-run around the jury requirement when applied to the much more salient mandatory minimum sentences.
Mandatory minimums are widely and rightly criticized for their harshness and their inconsistency with the goal of proportionality in punishment. Recent evidence shows that they exacerbate some of the very problems that sentencing reforms like guidelines systems were designed to curb, such as racial disparities in sentencing. Overturning Harris and requiring that the facts triggering these minimums be proved to a jury would mitigate these harms.
The reduction of sentencing disparities between defendants of different races was supposed to be one salutary effect of the uniformity that guidelines would bring to sentencing. But the U.S. Sentencing Commission found that despite black defendants making up 48% of those apparently eligible for charging under the firearms law in Alleyne, they actually represented 56% of those charged under the statute and 64% of those convicted under it. Similar patterns exist for drug offenses carrying mandatory minimums.
Two recent empirical studies confirm these disturbing findings. Professors Sonja B. Starr and M. Marit Rehavi found that mandatory minimums were behind racial disparities in sentencing that persisted even after accounting for a host of factors including arrest offense, criminal history, and local crime rates. Another study, by Professors Joshua B. Fischman and Max M. Schanzenbach, concludes that mandatory minimums are a driving cause of increased racial disparity observed in the federal sentencing system in the last five years.
Overturning Harris would result in the imposition of fewer mandatory sentences, as only those whose necessary predicate facts could be proven by a reasonable doubt could be imposed. A reduction in the number of imposed mandatory minimums will in turn reduce differences in sentencing that owe to skin color instead of conduct and culpability.
Unchecked prosecutorial power
In theory, sentencing guidelines should produce sentences that reflect offense and offender characteristics, not the biases and preferences of criminal justice system actors. By reducing judges’ discretion, similar convicted defendants would be treated similarly. However, mandatory minimums do not eliminate sentencing discretion, but rather shift it to prosecutors while tying judges’ hands even when every factor except that one triggering a mandatory minimum suggests that a lower sentence would be appropriate. Moreover, allowing prosecutors to bypass juries removes another check on the extraordinary powers they are granted.
When these checks are removed, injustices can flourish. About the longer sentences black defendants received as compared to similarly situated whites, Starr and Rehavi conclude, “Initial charging is an important driver of these sentencing disparities—especially the decision to bring mandatory minimum charges.”
Decreasing mandatory minimum sentences and allowing judges to consider every relevant factor—not one to the exclusion of all others—under the advisory guidelines can tamp down the differences produced by prosecutorial discretion. Fischman and Schanzenbach found that “judicial discretion likely reduces racial disparities” in this system, while Starr and Rehavi similarly reported, “nothing in these data suggests that judges’ use of their post-Booker discretion exacerbated racial disparity.”
Further, when the exercise of a prosecutor’s discretion in the form of the initial charging decision can have such great impact at sentencing, putting a jury determination and heightened burden of proof between that discretion and the eventual sentence helps control this great power.
Mandatory minimums put prosecutors in the role of sentencers and increase pernicious race-based differences in sentencing. Requiring that juries determine the facts needed to impose such punishments will lessen these risks and reinvigorate public control of the judicial process. If the Court decides to overturn Harris it will deal a blow to the mandatory minimums that are behind some of the worst features of the federal sentencing regime.
 457 Fed. Appx. 348 (4th Cir. 2011), cert. granted, 133 S. Ct. 420 (Oct. 5, 2012) (No. 11-9335).
 Alleyne was convicted of carrying and brandishing a weapon under a theory of complicity. Alleyne was not accused of carrying the gun himself; instead, his accomplice, who was never identified or charged, was found to have done so. Under complicity theory, a perpetrator may be held legally accountable for the actions of his accomplice in the commission of the crime if he knew or should have known that such actions were likely to be taken.
 536 U.S. 545 (2002).
 530 U.S. 466, 490 (2000).
 536 U.S. at 569 (Breyer, J., concurring).
 530 U.S. at 490.
 See, e.g., United States v. Booker, 543 U.S. 220 (2005) (finding the Federal Sentencing Guidelines unconstitutional for allowing judges to determine facts that increase a defendant’s guideline sentencing range); Southern Union Co. v. United States, 132 S. Ct. 2344 (2012) (extending Apprendi’s holding to the imposition of criminal fines).
 See Tr. of Oral Arg. at 20, United States v. O’Brien, 130 S. Ct. 2169 (2010) (No. 08-1569), http://www.supremecourt.gov/oral_arguments/argument_transcripts/08-1569.pdf (“[I]n Harris, I said that I thought Apprendi does cover mandatory minimums, but I don’t accept Apprendi. Well, at some point I guess I have to accept Apprendi, because it’s the law and has been for some time.”) (statement of Justice Breyer).
 Alleyne’s secondary statutory argument, which could limit the extent to which a ruling in his favor would alter Harris, contends that the firearms statute creates three distinct offenses with respective fixed-term sentences of five, seven, and ten years. Thus, the statute – but not Harris’s constitutional holding – would run afoul of Apprendi because it allows the judge to increase the sentencing ceiling.
 See Harris, 536 U.S. at 578 (Thomas, J., dissenting) (“[T]he sentence imposed when a defendant is found only to have ‘carried’ a firearm ‘in relation to’ a drug trafficking offense appears to be, almost uniformly, if not invariably, five years. Similarly, those found to have brandished a firearm typically, if not always, are sentenced only to 7 years in prison while those found to have discharged a firearm are sentenced only to 10 years.”).
 U.S. Sentencing Comm’n, Fifteen Years of Guidelines Sentencing: An Assessment of How Well the Federal Criminal Justice System is Achieving the Goals of Sentencing Reform 90 (2004), available at http://www.ussc.gov/Research/Research_Projects/Miscellaneous/15_Year_Study/15_year_study_full.pdf.
 Sonja B. Starr & M. Marit Rehavi, Racial Disparity in the Criminal Justice Process: Prosecutors, Judges, and the Effects of United States v. Booker (Nov. 1, 2012), available at http://ssrn.com/abstract=2170148.
 Joshua B. Fischman & Max M. Schanzenbach, Racial Disparities Under the Federal Sentencing Guidelines: The Role of Judicial Discretion and Mandatory Minimums, 9 J. Empirical Legal Stud. 729 (2012).
 Starr & Rehavi, supra note 14, at 19.
 Fischman & Schanzenbach, supra note 15, at 730.
 Amicus curiae briefs submitted on Alleyne’s behalf by NYU School of Law’s Center on the Administration of Criminal Law and by the Sentencing Project and American Civil Liberties Union alerted me to the studies and reports cited in this article. Those briefs contain a more extensive discussion of those documents and of some of the arguments raised here.