Consecutive Sentences and the Right to a Jury Trial

Exciting news for all you sentencing fans:  today the Supreme Court granted cert. on the application of Blakely to consecutive sentences:

Oregon v. Ice, No. 07-901. Does the Sixth Amendment right to a jury trial, as construed in the U.S. Supreme Court's rulings in Apprendi v. New Jersey and Blakely v. Washington, require that facts (other than prior convictions) necessary to imposing consecutive sentences be found by a jury or admitted by the defendant, as opposed to being found by a judge?

From my new home state--I'm so proud!!

For sentencing geeks like myself (and the indefatiguable Doug Berman, who posted on this topic as well), the Court's decision to finally take up the issue of Blakely and consecutive sentencing is long awaited.  Essentially, Apprendi and Blakely held that only the jury may find facts that increase the maximum sentence (or, as I read it, increase the punishment, but that's another post).  With consecutive sentences, where the prison time for one conviction is run after another, the  total prison time, or sentence, is obviously increased.  Yet this decision is left to the court, not the jury. 

Thus if Blakely applies to consecutive sentences, only the jury can decide whether to run the two prison terms one after another, instead of concurrently (i.e., at the same time).  Of course, my understanding of Blakely, which is quite broad (as I explain in this article), means that it does apply to consecutive sentences.  Will the Supreme Court agree?  Stay tuned!

Comments

[Chris]

I know it's another post, but I don't see how the "or ... increase the punishment" parenthetical fits with Harris (the 2002 Scalia-plus-the-Apprendi-dissenters, Breyer-not-really-buying-it case on mandatory-minimum sentences). Are you hoping it'll be overruled soon? Alito certainly doesn't seem inclined to do so, it doesn't seem a very Robertsy thing to do, and Scalia doesn't seem to have Thomas's inclination to admit mistakes. Almendarez-Torres has had five explicit votes against it since 2000, but has still survived.