Alleyne and the Future of Mandatory Minimums in the Federal Sentencing System

by Joe Austin

On Monday, January 14, the Supreme Court will hear oral argument in Alleyne v. United States[1]. 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.[2] 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[3], 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.

Legal Landscape

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 . . . .”[4] 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.” [5] Nonetheless, he demurred from extending Apprendi because he “[could not] yet accept its rule.” [6] 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”[7] has been affirmed in numerous cases.[8] Justice Breyer recognized as much in comments he made during an oral argument in 2010.[9]

Overturning Harris would increase doctrinal consistency and enhance the integrity and fairness of the federal sentencing system.[10]

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. [11] 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.

Racial disparities

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.[12] 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.[13] 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.[14]

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.”[15]

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,[16] 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.[17]

Joe is currently a 2L at NYU School of Law.  He is a Staff Editor on the Review of Law & Social Change.

[1] 457 Fed. Appx. 348 (4th Cir. 2011), cert. granted, 133 S. Ct. 420 (Oct. 5, 2012) (No. 11-9335).

[2] 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.

[3] 536 U.S. 545 (2002).

[4] 530 U.S. 466, 490 (2000).

[5] 536 U.S. at 569 (Breyer, J., concurring).

[6] Id.

[7] 530 U.S. at 490.

[8] 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).

[9] 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).

[10] 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.

[11] 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.”).

[12] 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.

[13] 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.

[14] 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).

[15] Starr & Rehavi, supra note 14, at 19.

[16] Fischman & Schanzenbach, supra note 15, at 730.

[17] 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.

Election Day LGBT Victories and Supreme Court Review

by Carson Baucher

Election Day 2012 not only saw the reelection of America’s first black president, but it also resulted in an historic set of victories for the LGBT community: Wisconsin’s Tammy Baldwin became the first openly gay person elected to the United States Senatefour LGBT individuals will join the House of Representatives, including the first openly bisexual federal lawmaker and the first openly gay federal lawmaker of color; Colorado elected its first gay speaker of the HouseMinnesota voters voted against a ban on same-sex marriage; and voters in three states affirmatively voted to legalize same-sex marriage.

In light of these substantial political victories, the question remains how the courts will grapple with changing public sentiment towards LGBT individuals and issues.  The Supreme Court is likely to give us a hint if it chooses to hear either Perry v. Brown, in which the Ninth Circuit Court of Appeals struck down California’s Proposition 8, or one of the four cases working their way through the federal courts this year regarding the constitutionality of Section 3 of the Defense of Marriage Act (DOMA).  DOMA limits the definition of “marriage” for federal and inter-state purposes to “a legal union between one man and one woman,” leaving same-sex spouses without many benefits available to opposite-sex spouses.

The DOMA Cases

In the last six months, federal courts have addressed the constitutionality of DOMA in four cases: Golinski v. Office of Personnel Management[1] and Dragovich  v. U.S. Department of Treasury,[2] decided in May by the District Court for the Northern District of California; Massachusetts v. U.S. Department of Health and Human Services (often referred to as Gill, the name of one of the plaintiffs in this consolidated decision),[3] decided by the First Circuit; and Windsor v. United States,[4] decided by the Second Circuit.

All four of these cases ultimately came to the same conclusion: DOMA violates the Fifth Amendment’s guarantee of equal protection.  The courts came to this conclusion, however, using different levels of equal protection analysis.[5]  The Northern District of California in Dragovich, for instance, analyzed DOMA under rationality review, a highly deferential test that requires the government to show merely that the law is rationally related to a legitimate government interest.  Despite this low bar, the Dragovich court found that DOMA failed rationality review because the law was motivated by anti-homosexual animus, which, under Romer v. Evans,[6] is not a legitimate government interest.[7]

The Second Circuit in Windsor, on the other hand, found that the rational basis test was the inappropriate standard of review for statutes that classify on the basis of sexual orientation.  In an historic move, the Second Circuit became the first federal appellate court to find that gays and lesbians constitute a “quasi-suspect” class.  This classification shows that the Windsor court worried about discrimination against gays and lesbians and, as a result, would be skeptical of laws that disadvantage them.  As a result, the Second Circuit subjected DOMA to intermediate scrutiny, under which the statute can only survive if it is substantially related to an important government interest.  Intermediate scrutiny is the standard of review applied to laws that draw distinctions on the basis of sex or illegitimacy.

The First Circuit in Gill applied a test somewhere between rationality review and intermediate scrutiny, which some commentators have described as “rational basis with bite.”[8]  The court found that DOMA was subject to a more exacting version of rationality review because of problems DOMA posed to principles of federalism.  According to the First Circuit, marriage is an institution traditionally regulated by the states, and DOMA’s incursion into such regulation required that the “federal government interest … be shown with special clarity.”[9]  Under this standard of review, DOMA failed.

In Golinski, the Northern District of California covered all of its bases and subjected DOMA to both intermediate scrutiny and standard rationality review.  The court found the statute deficient under both tests.

Election Day Victories for the LGBT Community and their Ramifications for Supreme Court Review of DOMA

At least one of the DOMA cases will likely go before the Supreme Court, and Election Day’s LGBT political victories might well affect the high court’s views.  Opinions are not written in a vacuum.  At times, the Court looks beyond precedent and legal treatises to the political realities of the day.  Indeed, in some of its key civil rights opinions in the past, the Supreme Court has grounded its analyses in the political stance taken by the states on the particular subjects at issue.  In Lawrence v. Texas, for example, which struck down Texas’s same-sex anti-sodomy statute, the Court referenced the fact that “25 States with laws prohibiting the relevant conduct … are reduced now to 13, of which 4 enforce their laws only against homosexual conduct.”[10]  It went on to state that “[t]hese references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.”[11]

Even in the DOMA cases, courts have bolstered their rulings on the statute’s unconstitutionality with statistics that indicate increasing political and popular support for state recognition of same-sex relationships.  The Northern District of California in Dragovich, for instance, noted that “[f]or more than two decades, jurisdictions … have extended to same-sex couples legal recognition in various forms …. Over time, the number of jurisdictions granting these forms of legal recognition has increased.”[12]  Given the courts’ awareness of the goings-on in the political sphere, it is likely that the expansion of same-sex marriage rights in three states will drive courts to be even more wary of a federal statute that cuts against this growing trend.

In addition, the growing list of states that support marriage equality implicates concerns about federalism.  Same-sex couples can now marry in nine states and the District of Columbia, but DOMA bars the federal government from recognizing any of these marriages.  This means that DOMA’s interference affects marriages in nearly 20 percent of the 50 states and in the nation’s capital. If the Supreme Court reviews DOMA, it might adopt an analysis similar to the one the First Circuit employed in Gill, where states’ rights concerns required the court to engage in a level of scrutiny more exacting than mere rationality review.

Despite strong arguments that the political victories of Election Day will increase the likelihood that the Supreme Court will find DOMA unconstitutional, there is one potential drawback.  Windsor and Golinski both subject DOMA to heightened scrutiny on a finding that gays and lesbians constitute a quasi-suspect class.  The Second Circuit and the Northern District Court for California made such a finding after engaging in a test that traditionally examines four characteristics of the purported suspect class.  One relevant factor in the analysis is whether gays and lesbians are a politically weak minority.  The successes seen by the LGBT community on Election Day certainly demonstrate that gays and lesbians are growing in political strength.  Does this diminish the necessity of protecting LGBT citizens through the judicial process of intermediate scrutiny?

While the strengthened political status of LGBT individuals demonstrated by the victories of Election Day is a potential problem for the case that intermediate scrutiny should apply to DOMA, it likely will not be enough of a concern to eliminate the application of this level of scrutiny.  The courts in Windsor and Golinski recognize that the LGBT community has seen some success in the political arena, but nonetheless found that gays and lesbians remain a politically weakened minority.  The victories of Election Day – while they are a meaningful indication that public sentiment towards the LGBT community is moving in the right direction – are only a small step towards political equality.  It is therefore unlikely that the Court will forego intermediate scrutiny on the basis of Election Day’s LGBT successes.

In the past year, DOMA has been reviewed by five federal courts and, each time, has been struck down as unconstitutional.  If and when the Supreme Court hears one of the DOMA cases, the political victories of Election Day 2012 are sure to play into the Court’s decision, either as an explicit component of its analysis, or as an implicit consideration.

For the LGBT community, the importance of Election Day cannot be understated.  As one commentator put it, “[T]he game has changed forever. … LGBT Americans should walk a little taller and dance a little harder.  It just got better.”  The nine individuals who make up the Supreme Court are officers of a neutral judiciary, but they are people too, and in a moment in history when so many Americans have finally cast their vote for LGBT rights, it is difficult to imagine that the hearts of the justices have remain untouched, even from the distant vantage point of the nation’s highest bench.

Carson Baucher is a 2L at NYU and Staff Editor on the Review of Law & Social Change.

[1] Golinski, 824 F.Supp.2d 968 (N.D. Cal. 2012).

[2] Dragovich, No. C 10–01564 CW, 2012 WL 1909603 (N.D. Cal. May 24, 2012).

[3] Gill, 682 F.3d 1 (1st Cir. 2012).

[4] Windsor, Nos. 12–2335–cv(L), 12–2435(Con), 2012 WL 4937310 (2d Cir. Oct. 18, 2012).

[5] The following case descriptions draw heavily from David B. Cruz, “Defense of Marriage Act Roundup” (June 14, 2012).

[6] Romer v. Evans, 517 U.S. 620 (1996)

[7] See id. at 632; Dragovich, 2012 WL 1909603, at *10.

[8] See Cruz, supra at n. 5.

[9] Gill, 682 F.3d at 10.

[10] Lawrence v. Texas, 539 U.S. 558, 773 (2003) (overruling an earlier Supreme Court case, Bowers v. Hardwick).

[11] Id. at 771-72.  Other Supreme Court decisions that look to the states for cues on where Americans stand on civil rights issues include Loving v. Virginia, 388 U.S. 1 (1967) and Roe v. Wade, 410 U.S. 113 (1973).

[12] Dragovich, 2012 WL 1909603, at *3.


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