Oregon v. Ice

(Slip Opinion) OCTOBER TERM, 2008 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

OREGON v. ICE

CERTIORARI TO THE SUPREME COURT OF OREGON

No. 07–901. Argued October 14, 2008—Decided January 14, 2009

Respondent Ice twice entered an 11-year-old girl’s residence and sexu

ally 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 vic

tim’s vagina; and first-degree sexual assault for touching her breasts.

Ice was sentenced under a state statute providing, generally, for con

current 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 ei

ther “(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 qualita

tively 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 consecu

tive 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, in

ter alia, that the sentencing statute was unconstitutional under Ap

prendi v. New Jersey, 530 U. S. 466, 490, and Blakely v. Washington,

542 U. S. 296, holding that the Sixth Amendment’s jury-trial guaran

tee 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 appel

2 OREGON v. ICE

Syllabus

late 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.

Held: In light of historical practice and the States’ authority over ad

ministration 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. Pp. 5–11.

(a) The Court declines to extend the Apprendi and Blakely line of

decisions beyond the offense-specific context that supplied the his

toric grounding for the decisions. The Court’s application of Ap

prendi’s rule must honor the “longstanding common-law practice” in

which the rule is rooted. Cunningham v. California, 549 U. S. 270,

281. 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, 557. In so doing, the Court is also cognizant that ad

ministration 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, 201. These twin considerations—historical prac

tice and respect for state sovereignty—counsel against extending Ap

prendi to the imposition of sentences for discrete crimes. P. 6.

(b) The historical record demonstrates that both in England before

this Nation’s founding and in the early American States, the common

law generally entrusted the decision whether sentences for discrete

offenses should be served consecutively or concurrently to judges’ un

fettered discretion, assigning no role in the determination to the jury.

Thus, legislative reforms regarding the imposition of multiple sen

tences do not implicate the core concerns that prompted the Court’s

decision in Apprendi. There is no encroachment here by the judge

upon facts historically found by the jury, nor any threat to the jury’s

domain as a bulwark at trial between the State and the accused. In

stead, the defendant—who historically may have faced consecutive

sentences by default—has been granted by some modern legislatures

statutory protections meant to temper the harshness of the historical

practice. Ice’s argument that he is “entitled” to concurrent sentences

absent the factfindings Oregon law requires is rejected. Because the

scope of the federal constitutional jury right must be informed by the

jury’s historical common-law role, that right does not attach to every

contemporary state-law “entitlement” to predicate findings. For simi

Cite as: 555 U. S. ____ (2009) 3

Syllabus

lar reasons, Cunningham, upon which Ice heavily relies, does not

control here. In holding that the facts permitting imposition of an

elevated “upper term” sentence for a particular crime fell within the

jury’s province rather than the sentencing judge’s, 549 U. S., at 274,

Cunningham had no occasion to consider the appropriate inquiry

when no erosion of the jury’s traditional role was at stake. Pp. 7–8.

(c) States’ interest in the development of their penal systems, and

their historic dominion in this area, also counsel against the exten

sion of Apprendi that Ice requests. This Court should not diminish

the States’ sovereign authority over the administration of their

criminal justice systems absent impelling reason to do so. Limiting

judicial discretion to impose consecutive sentences serves the “salu

tary objectives” of promoting sentences proportionate to “the gravity

of the offense,” Blakely, 542 U. S., at 308, and of reducing disparities

in sentence length. All agree that a scheme making consecutive sen

tences the rule, and concurrent sentences the exception, encounters

no Sixth Amendment shoal. To hem in States by holding that they

may not choose to make concurrent sentences the rule, and consecu

tive sentences the exception, would make scant sense. Neither Ap

prendi nor the Court’s Sixth Amendment traditions compel strait

jacketing the States in that manner. Further, the potential intrusion

of Apprendi’s rule into other state initiatives on sentencing choices or

accoutrements—for example, permitting trial judges to find facts

about the offense’s nature or the defendant’s character in determin

ing the length of supervised release, required attendance at drug re

habilitation programs or terms of community service, and the imposi

tion of fines and restitution—would cut the rule loose from its

moorings. Moreover, the expansion Ice seeks would be difficult for

States to administer, as the predicate facts for consecutive sentences

could substantially prejudice the defense at the trial’s guilt phase,

potentially necessitating bifurcated or trifurcated trials. Pp. 9–10.

343 Ore. 248, 170 P. 3d 1049, reversed and remanded.

GINSBURG, J., delivered the opinion of the Court, in which STEVENS,

KENNEDY, BREYER, and ALITO, JJ., joined. SCALIA, J., filed a dissenting

opinion, in which ROBERTS, C. J., and SOUTER and THOMAS, JJ., joined.

Cite as: 555 U. S. ____ (2009) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 07–901

_________________

OREGON, PETITIONER v. THOMAS EUGENE ICE

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

OREGON

[January 14, 2009]

JUSTICE GINSBURG delivered the opinion of the Court.

This case concerns the scope of the Sixth Amendment’s

jury-trial guarantee, as construed in Apprendi v. New

Jersey, 530 U. S. 466 (2000), and Blakely v. Washington,

542 U. S. 296 (2004). Those decisions are rooted in the

historic jury function—determining whether the prosecu

tion has proved each element of an offense beyond a rea

sonable doubt. They hold that it is within the jury’s prov

ince to determine any fact (other than the existence of a

prior conviction) that increases the maximum punishment

authorized for a particular offense. Thus far, the Court

has not extended the Apprendi and Blakely line of deci

sions beyond the offense-specific context that supplied the

historic grounding for the decisions. The question here

presented concerns a sentencing function in which the jury

traditionally played no part: When a defendant has been

tried and convicted of multiple offenses, each involving

discrete sentencing prescriptions, does the Sixth Amend

ment mandate jury determination of any fact declared

necessary to the imposition of consecutive, in lieu of con

current, sentences?

Most States continue the common-law tradition: They

2 OREGON v. ICE

Opinion of the Court

entrust to judges’ unfettered discretion the decision

whether sentences for discrete offenses shall be served

consecutively or concurrently. In some States, sentences

for multiple offenses are presumed to run consecutively,

but sentencing judges may order concurrent sentences

upon finding cause therefor. Other States, including

Oregon, constrain judges’ discretion by requiring them to

find certain facts before imposing consecutive, rather than

concurrent, sentences. It is undisputed that States may

proceed on the first two tracks without transgressing the

Sixth Amendment. The sole issue in dispute, then, is

whether the Sixth Amendment, as construed in Apprendi

and Blakely, precludes the mode of proceeding chosen by

Oregon and several of her sister States. We hold, in light

of historical practice and the authority of States over

administration of their criminal justice systems, that the

Sixth Amendment does not exclude Oregon’s choice.

I

A

State laws, as just observed, prescribe a variety of ap

proaches to the decision whether a defendant’s sentences

for distinct offenses shall run concurrently or consecu

tively. Oregon might have followed the prevailing pattern

by placing the decision within the trial court’s discretion

in all,1 or almost all,2 circumstances. Instead, Oregon and

several other States have adopted a more restrained ap

proach: they provide for judicial discretion, but constrain

its exercise. In these States, to impose consecutive sen

——————

1 E.g., Connecticut (Conn. Gen. Stat. §53a–37 (2005)); Idaho (Idaho

Code §18–308 (Lexis 2004)); Nebraska (Neb. Rev. Stat. §29–2204

(1995)). See generally Brief for National Association of Criminal

Defense Lawyers as Amicus Curiae 9, n. 6 (listing laws of nine other

States).

2 E.g., Florida (Fla. Stat. §921.16 (2007)); Kansas (Kan. Stat. Ann.

§21–4608 (2007)); Mississippi (Miss. Code Ann. §99–19–21 (2007)).

Cite as: 555 U. S. ____ (2009) 3

Opinion of the Court

tences, judges must make certain predicate fact findings.3

The controlling statute in Oregon provides that sen

tences shall run concurrently unless the judge finds statu

torily described facts. Ore. Rev. Stat. §137.123(1) (2007).

In most cases, finding such facts permits—but does not

require—the judge to order consecutive sentences.4 Spe

cifically, an Oregon judge may order consecutive sentences

“[i]f a defendant is simultaneously sentenced for criminal

offenses that do not arise from the same continuous and

uninterrupted course of conduct.” §137.123(2). If the

offenses do arise from the same course of conduct, the

judge may still impose consecutive sentences if she finds

either:

“(a) That the criminal offense . . . was an indication of

defendant’s willingness to commit more than one

criminal offense; or

“(b) The criminal offense . . . caused or created a risk

of causing greater or qualitatively different loss, in

jury or harm to the victim or . . . to a different victim

. . . .” §137.123(5).

B

On two occasions between December 1996 and July

1997, respondent Thomas Eugene Ice entered an apart

ment in the complex he managed and sexually assaulted

an 11-year-old girl. 343 Ore. 248, 250, 170 P. 3d 1049,

1050 (2007). An Oregon jury convicted Ice of six crimes.

For each of the two incidents, the jury found him guilty of

first-degree burglary for entering with the intent to com

——————

3 E.g., Maine (Me. Rev. Stat. Ann., Tit. 17–A, §1256 (2006); State v.

Keene, 2007 ME 84, 927 A. 2d 398); Tennessee (Tenn. Code Ann. §40–

35–115(b) (2006); State v. Allen, 259 S. W. 3d 671 (Tenn. 2008)); Oregon

(Ore. Rev. Stat. §137.123 (2007)).

4 Sentences must run consecutively, however, “[w]hen a defendant is

sentenced for a crime committed while the defendant was incarcer

ated.” Ore. Rev. Stat. §137.123(3).

4 OREGON v. ICE

Opinion of the Court

mit sexual abuse; first-degree sexual assault for touching

the victim’s vagina; and first-degree sexual assault for

touching the victim’s breasts. Ibid.

At sentencing, the judge made findings, pursuant to

§137.123, that permitted the imposition of consecutive

sentences. First, the judge found that the two burglaries

constituted “separate incident[s].” Id., at 255, 170 P. 3d,

at 1053 (internal quotation marks omitted). Based on that

finding, the judge had, and exercised, discretion to impose

the two burglary sentences consecutively. Ibid.; see

§137.123(2).

Second, the court found that each offense of touching the

victim’s vagina met the statutory criteria set forth in

§137.123(5): Ice displayed a “willingness to commit more

than one . . . offense” during each criminal episode, and his

conduct “caused or created a risk of causing greater,

qualitatively different loss, injury, or harm to the victim.”

Id., at 253, 170 P. 3d, at 1051 (internal quotation marks

omitted). These findings gave the judge discretion to

impose the sentence for each of those sexual assault of

fenses consecutive to the associated burglary sentence.

The court elected to do so. Ibid. The court ordered, how

ever, that the sentences for touching the victim’s breasts

run concurrently with the other sentences. Ibid. In total,

the court sentenced Ice to 340 months’ imprisonment.

App. 46–87.5

Ice appealed his sentences. In relevant part, he argued

that he had a Sixth Amendment right to have the jury, not

the sentencing judge, find the facts that permitted the

imposition of consecutive sentences. The appellate court

affirmed the trial court’s judgment without opinion. 178

Ore. App. 415, 39 P. 3d 291 (2001).

The Oregon Supreme Court granted Ice’s petition for

——————

5 Had the judge ordered concurrent service of all sentences, Ice’s time

in prison would have been 90 months. App. 68, 75.

Cite as: 555 U. S. ____ (2009) 5

Opinion of the Court

review and reversed, 4 to 2. 343 Ore., at 250, 170 P. 3d, at

1050.6 In the majority’s view, the rule of Apprendi ap

plied, because the imposition of consecutive sentences

increased “the quantum of punishment” imposed. 343

Ore., at 265, 170 P. 3d, at 1058. The dissenting justices

concluded that “[n]either the holding in Apprendi nor its

reasoning support[ed] extending that decision to the ques

tion of consecutive sentencing.” Id., at 267, 170 P. 3d, at

1059 (opinion of Kistler, J.). State high courts have di

vided over whether the rule of Apprendi governs consecu

tive sentencing decisions.7 We granted review to resolve

the question. 552 U. S. __ (2008).

II

The Federal Constitution’s jury-trial guarantee assigns

the determination of certain facts to the jury’s exclusive

province. Under that guarantee, this Court held in Ap

prendi, “any fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be sub

mitted to a jury, and proved beyond a reasonable doubt.”

530 U. S., at 490.

We have applied Apprendi’s rule to facts subjecting a

defendant to the death penalty, Ring v. Arizona, 536 U. S.

584, 602, 609 (2002), facts allowing a sentence exceeding

the “standard” range in Washington’s sentencing system,

Blakely, 542 U. S., at 304–305, and facts prompting an

elevated sentence under then-mandatory Federal Sentenc

ing Guidelines, United States v. Booker, 543 U. S. 220, 244

——————

6 Preliminarily, the Oregon Supreme Court ruled unanimously that

the consecutive-sentencing findings did not constitute elements of any

specific crime, and therefore the jury-trial right safeguarded by the

Oregon Constitution was not violated. 343 Ore. 248, 261–262, 170

P. 3d 1049, 1056 (2007).

7 Compare, e.g., People v. Wagener, 196 Ill. 2d 269, 283–286, 752

N. E. 2d 430, 440–442 (2001) (holding that Apprendi does not apply);

Keene, 927 A. 2d, 405–408 (same); with State v. Foster, 109 Ohio St. 3d

1, 2006–Ohio–856, 845 N. E. 2d 470 (holding Apprendi applicable).

6 OREGON v. ICE

Opinion of the Court

(2005). Most recently, in Cunningham v. California, 549

U. S. 270 (2007), we applied Apprendi’s rule to facts per

mitting imposition of an “upper term” sentence under

California’s determinate sentencing law. All of these

decisions involved sentencing for a discrete crime, not—as

here—for multiple offenses different in character or com

mitted at different times.

Our application of Apprendi’s rule must honor the “long

standing common-law practice” in which the rule is rooted.

Cunningham, 549 U. S., at 281. 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.

Guided by that principle, our opinions make clear that the

Sixth Amendment does not countenance legislative en

croachment on the jury’s traditional domain. See id., at

497. We accordingly considered whether the finding of a

particular fact was understood as within “the domain of

the jury . . . by those who framed the Bill of Rights.”

Harris v. United States, 536 U. S. 545, 557 (2002) (plural

ity opinion). In undertaking this inquiry, we remain

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, 201

(1977).

These twin considerations—historical practice and

respect for state sovereignty—counsel against extending

Apprendi’s rule to the imposition of sentences for discrete

crimes. The decision to impose sentences consecutively is

not within the jury function that “extends down centuries

into the common law.” Apprendi, 530 U. S., at 477. In

stead, specification of the regime for administering multi

ple sentences has long been considered the prerogative of

state legislatures.

Cite as: 555 U. S. ____ (2009)

7

Opinion of the Court

A

The historical record demonstrates that the jury played

no role in the decision to impose sentences consecutively

or concurrently. Rather, the choice rested exclusively with

the judge. See, e.g., 1 J. Bishop, Criminal Law §636, pp.

649–650 (2d ed. 1858) (“[W]hen there are two or more

convictions, on which sentence remains to be pronounced;

the judgment may direct, that each succeeding period of

imprisonment shall commence on the termination of the

period next preceding.”); A. Campbell, Law of Sentencing

§9:22, p. 425 (3d ed. 2004) (“Firmly rooted in common law

is the principle that the selection of either concurrent or

consecutive sentences rests within the discretion of sen

tencing judges.”). This was so in England before the

founding of our Nation,8 and in the early American

States.9 Ice “has no quarrel with [this account] of consecu

tive sentencing practices through the ages.” Brief for

Respondent 32. The historical record further indicates

that a judge’s imposition of consecutive, rather than con

current, sentences was the prevailing practice.10

——————

8 E.g., King v. Wilkes, 19 How. St. Tr. 1075, 1132–1136 (K. B. 1769);

see also Lee v. Walker, [1985] 1 Q. B. 1191, 1201 (1984) (“[T]he High

Court has always had inherent jurisdiction to impose consecutive

sentences of imprisonment in any appropriate case where the court had

power to imprison.”).

9 E.g., Russell v. Commonwealth, 7 Serg. & Rawle 489, 490 (Pa. 1822)

(Judicial imposition of consecutive sentences has been “the common

practice in the Courts of this State,” and it is “warranted by principle,

practice, and authority.”); In re Walsh, 37 Neb. 454, 456, 55 N. W. 1075,

1076 (1893) (“[T]he great weight of authority is in favor of the proposi

tion that . . . the court has power to impose cumulative sentences.”); In

re Breton, 93 Me. 39, 42, 44 A. 125, 126 (1899) (same); Howard v.

United States, 75 F. 986, 993 (CA6 1896) (“[A] rule which denies the

court the power to impose cumulative sentences turns the trial and

conviction on all the indictments except one into an idle ceremony.”).

10 E.g., Queen v. Cutbush, 2 L. R. Q. B. 379, 382, 10 Cox Crim. Cas.

489, 492 (1867) (“[R]ight and justice require [that] when a man has

been guilty of separate offences, . . . that he should not escape from the

8 OREGON v. ICE

Opinion of the Court

In light of this history, legislative reforms regarding the

imposition of multiple sentences do not implicate the core

concerns that prompted our decision in Apprendi. There is

no encroachment here by the judge upon facts historically

found by the jury, nor any threat to the jury’s domain as a

bulwark at trial between the State and the accused.

Instead, the defendant—who historically may have faced

consecutive sentences by default—has been granted by

some modern legislatures statutory protections meant to

temper the harshness of the historical practice.

It is no answer that, as Ice argues, “he was ‘entitled’ to”

concurrent sentences absent the fact findings Oregon law

requires. Brief for Respondent 43. In Ice’s view, because

“the Oregon Legislature deviated from tradition” and

enacted a statute that hinges consecutive sentences on

fact findings, Apprendi’s rule must be imported. Brief for

Respondent 33. As we have described, the scope of the

constitutional jury right must be informed by the histori

cal role of the jury at common law. See, e.g., Williams v.

Florida, 399 U. S. 78, 98–100 (1970). It is therefore not

the case that, as Ice suggests, the federal constitutional

right attaches to every contemporary state-law “entitle

ment” to predicate findings.

For similar reasons, Cunningham, upon which Ice heav

ily relies, does not control his case. As stated earlier, we

held in Cunningham that the facts permitting imposition

of an elevated “upper term” sentence for a particular crime

fell within the jury’s province. 549 U. S., at 274 (internal

quotation marks omitted). The assignment of such a

finding to the sentencing judge implicates Apprendi’s core

concern: a legislative attempt to “remove from the [prov

——————

punishment due to the additional offence, merely because he is already

sentenced to be imprisoned for another offence.”); ibid. (noting that it

had been the practice to impose consecutive sentences “so far as living

judicial memory goes back”).

Cite as: 555 U. S. ____ (2009) 9

Opinion of the Court

ince of the] jury” the determination of facts that warrant

punishment for a specific statutory offense. Apprendi, 530

U. S., at 490 (internal quotation marks omitted). We had

no occasion to consider the appropriate inquiry when no

erosion of the jury’s traditional role was at stake. Cun

ningham thus does not impede our conclusion that, as

Apprendi’s core concern is inapplicable to the issue at

hand, so too is the Sixth Amendment’s restriction on

judge-found facts.

B

States’ interest in the development of their penal sys

tems, and their historic dominion in this area, also counsel

against the extension of Apprendi that Ice requests. Be

yond question, the authority of States over the admini

stration of their criminal justice systems lies at the core of

their sovereign status. See, e.g., Patterson, 432 U. S., at

201 (“It goes without saying that preventing and dealing

with crime is much more the business of the States than it

is of the Federal Government.”). We have long recognized

the role of the States as laboratories for devising solutions

to difficult legal problems. See New State Ice Co. v. Lieb

mann, 285 U. S. 262, 311 (1932) (Brandeis, J., dissenting).

This Court should not diminish that role absent impelling

reason to do so.

It bears emphasis that state legislative innovations like

Oregon’s seek to rein in the discretion judges possessed at

common law to impose consecutive sentences at will.

Limiting judicial discretion to impose consecutive sen

tences serves the “salutary objectives” of promoting sen

tences proportionate to “the gravity of the offense,”

Blakely, 542 U. S., at 308, and of reducing disparities in

sentence length, see 6 W. LaFave, J. Israel, N. King, & O.

Kerr, Criminal Procedure §26.3(f) (3d ed 2007). All agree

that a scheme making consecutive sentences the rule, and

concurrent sentences the exception, encounters no Sixth

10 OREGON v. ICE

Opinion of the Court

Amendment shoal. To hem in States by holding that they

may not equally choose to make concurrent sentences

the rule, and consecutive sentences the exception, would

make scant sense. Neither Apprendi nor our Sixth

Amendment traditions compel straitjacketing the States

in that manner.

Further, it is unclear how many other state initiatives

would fall under Ice’s proposed expansion of Apprendi. As

17 States have observed in an amici brief supporting

Oregon, States currently permit judges to make a variety

of sentencing determinations other than the length of

incarceration. Trial judges often find facts about the

nature of the offense or the character of the defendant in

determining, for example, the length of supervised release

following service of a prison sentence; required attendance

at drug rehabilitation programs or terms of community

service; and the imposition of statutorily prescribed fines

and orders of restitution. See Brief for State of Indiana

et al. as Amici Curiae 11. Intruding Apprendi’s rule into

these decisions on sentencing choices or accoutrements

surely would cut the rule loose from its moorings.

Moreover, the expansion that Ice seeks would be diffi

cult for States to administer. The predicate facts for

consecutive sentences could substantially prejudice the

defense at the guilt phase of a trial. As a result, bifur

cated or trifurcated trials might often prove necessary.

Brief for State of Indiana et al. as Amici Curiae 14–15.

We will not so burden the Nation’s trial courts absent any

genuine affront to Apprendi’s instruction.

We recognize that not every state initiative will be in

harmony with Sixth Amendment ideals. But as we have

previously emphasized, “structural democratic constraints

exist to discourage legislatures from” pernicious manipu

lation of the rules we articulate. Apprendi, 530 U. S., at

490, n. 16. In any event, if confronted with such a ma

nipulation, “we would be required to question whether the

Cite as: 555 U. S. ____ (2009) 11

Opinion of the Court

[legislative measure] was constitutional under this Court’s

prior decisions.” Id., at 491, n. 16. The Oregon statute

before us today raises no such concern.

III

Members of this Court have warned against “wooden,

unyielding insistence on expanding the Apprendi doctrine

far beyond its necessary boundaries.” Cunningham, 549

U. S., at 295 (Kennedy, J., dissenting). The jury-trial right

is best honored through a “principled rationale” that ap

plies the rule of the Apprendi cases “within the central

sphere of their concern.” 549 U. S., at 295. Our disposi

tion today—upholding an Oregon statute that assigns to

judges a decision that has not traditionally belonged to the

jury—is faithful to that aim.

* * *

For the reasons stated, the judgment of the Oregon

Supreme Court is reversed, and the case is remanded for

further proceedings not inconsistent with this opinion.

It is so ordered.

Cite as: 555 U. S. ____ (2009) 1

SCALIA, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 07–901

_________________

OREGON, PETITIONER v. THOMAS EUGENE ICE

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

OREGON

[January 14, 2009]

JUSTICE SCALIA, with whom THE CHIEF JUSTICE,

JUSTICE SOUTER, and JUSTICE THOMAS join, dissenting.

The rule of Apprendi v. New Jersey, 530 U. S. 466

(2000), is clear: Any fact—other than that of a prior con

viction—that increases the maximum punishment to

which a defendant may be sentenced must be admitted by

the defendant or proved beyond a reasonable doubt to a

jury. Oregon’s sentencing scheme allows judges rather

than juries to find the facts necessary to commit defen

dants to longer prison sentences, and thus directly contra

dicts what we held eight years ago and have reaffirmed

several times since. The Court’s justification of Oregon’s

scheme is a virtual copy of the dissents in those cases.

The judge in this case could not have imposed a sen

tence of consecutive prison terms without making the

factual finding that the defendant caused “separate

harms” to the victim by the acts that produced two convic

tions. See 343 Ore. 248, 268, 170 P. 3d 1049, 1060 (2007)

(Kistler, J., dissenting). There can thus be no doubt that

the judge’s factual finding was “essential to” the punish

ment he imposed. United States v. Booker, 543 U. S. 220,

232 (2005). That “should be the end of the matter.”

Blakely v. Washington, 542 U. S. 296, 313 (2004).

Instead, the Court attempts to distinguish Oregon’s

sentencing scheme by reasoning that the rule of Apprendi

applies only to the length of a sentence for an individual

2 OREGON v. ICE

SCALIA, J., dissenting

crime and not to the total sentence for a defendant. I

cannot understand why we would make such a strange

exception to the treasured right of trial by jury. Neither

the reasoning of the Apprendi line of cases, nor any dis

tinctive history of the factfinding necessary to imposition

of consecutive sentences, nor (of course) logic supports

such an odd rule.

We have taken pains to reject artificial limitations upon

the facts subject to the jury-trial guarantee. We long ago

made clear that the guarantee turns upon the penal con

sequences attached to the fact, and not to its formal defini

tion as an element of the crime. Mullaney v. Wilbur, 421

U. S. 684, 698 (1975). More recently, we rejected the

contention that the “aggravating circumstances” that

qualify a defendant for the death penalty did not have to

be found by the jury. “If,” we said, “a State makes an

increase in a defendant’s authorized punishment contin

gent on the finding of a fact, that fact—no matter how the

State labels it—must be found by a jury beyond a reason

able doubt.” Ring v. Arizona, 536 U. S. 584, 602 (2002). A

bare three years ago, in rejecting the contention that the

facts determining application of the Federal Sentencing

Guidelines did not have to be found by the jury, we again

set forth the pragmatic, practical, nonformalistic rule in

terms that cannot be mistaken: The jury must “find the

existence of ‘ “any particular fact” ’ that the law makes

essential to [a defendant’s] punishment.” Booker, supra,

at 232 (quoting Blakely, supra, at 301).

This rule leaves no room for a formalistic distinction

between facts bearing on the number of years of impris

onment that a defendant will serve for one count (subject

to the rule of Apprendi) and facts bearing on how many

years will be served in total (now not subject to Apprendi).

There is no doubt that consecutive sentences are a

“greater punishment” than concurrent sentences, Ap­

prendi, supra, at 494. We have hitherto taken note of the

Cite as: 555 U. S. ____ (2009) 3

SCALIA, J., dissenting

reality that “a concurrent sentence is traditionally im

posed as a less severe sanction than a consecutive sen

tence.” Ralston v. Robinson, 454 U. S. 201, 216, n. 9

(1981) (emphasis deleted). The decision to impose con

secutive sentences alters the single consequence most

important to convicted noncapital defendants: their date of

release from prison. For many defendants, the difference

between consecutive and concurrent sentences is more

important than a jury verdict of innocence on any single

count: Two consecutive 10-year sentences are in most

circumstances a more severe punishment than any num

ber of concurrent 10-year sentences.

To support its distinction-without-a-difference, the Court

puts forward the same (the very same) arguments regard

ing the history of sentencing that were rejected by Ap­

prendi. Here, it is entirely irrelevant that common-law

judges had discretion to impose either consecutive or

concurrent sentences, ante, at 7; just as there it was en

tirely irrelevant that common-law judges had discretion to

impose greater or lesser sentences (within the prescribed

statutory maximum) for individual convictions. There is

no Sixth Amendment problem with a system that exposes

defendants to a known range of sentences after a guilty

verdict: “In a system that says the judge may punish

burglary with 10 to 40 years, every burglar knows he is

risking 40 years in jail.” Blakely, supra, at 309. The same

analysis applies to a system where both consecutive and

concurrent sentences are authorized after only a jury

verdict of guilt; the burglar-rapist knows he is risking

consecutive sentences. Our concern here is precisely the

same as our concern in Apprendi: What happens when a

State breaks from the common-law practice of discretion

ary sentences and permits the imposition of an elevated

sentence only upon the showing of extraordinary facts? In

such a system, the defendant “is entitled to” the lighter

sentence “and by reason of the Sixth Amendment[,] the

4 OREGON v. ICE

SCALIA, J., dissenting

facts bearing upon that entitlement must be found by a

jury.” Blakely, 542 U. S., at 309.

The Court protests that in this case there is no “en

croachment” on or “erosion” of the jury’s role because

traditionally it was for the judge to determine whether

there would be concurrent terms. Ante, at 8–9. Alas, this

argument too was made and rejected in Apprendi. The

jury’s role was not diminished, the Apprendi dissent con

tended, because it was traditionally up to judges, not

juries, to determine what the sentence would be. 530

U. S., at 556, 559 (opinion of BREYER, J.). The Court’s

opinion acknowledged that in the 19th century it was the

practice to leave sentencing up to the judges, within limits

fixed by law. But, it said, that practice had no bearing

upon whether the jury must find the fact where a law

conditions the higher sentence upon the fact. The jury’s

role is diminished when the length of a sentence is made

to depend upon a fact removed from its determination.

Id., at 482–483. The same is true here.

The Court then observes that the results of the Oregon

system could readily be achieved, instead, by a system in

which consecutive sentences are the default rule but

judges are permitted to impose concurrent sentences when

they find certain facts. Ante, at 9–10. Undoubtedly the

Sixth Amendment permits a system in which judges are

authorized (or even required) to impose consecutive sen

tences unless the defendant proves additional facts to the

Court’s satisfaction. See ibid. But the permissibility of

that alternative means of achieving the same end obvi

ously does not distinguish Apprendi, because the same

argument (the very same argument) was raised and

squarely rejected in that case:

“If the defendant can escape the statutory maximum

by showing, for example, that he is a war veteran,

then a judge that finds the fact of veteran status is

Cite as: 555 U. S. ____ (2009) 5

SCALIA, J., dissenting

neither exposing the defendant to a deprivation of lib

erty greater than that authorized by the verdict ac

cording to statute, nor is the judge imposing upon the

defendant a greater stigma than that accompanying

the jury verdict alone. Core concerns animating the

jury and burden-of-proof requirements are thus ab

sent from such a scheme.” 530 U. S., at 491, n. 16.

Ultimately, the Court abandons its effort to provide

analytic support for its decision, and turns to what it

thinks to be the “ ‘salutary objectives’ ” of Oregon’s scheme.

Ante, at 9. “Limiting judicial discretion,” we are told,

promotes sentences proportionate to the gravity of the

offense, and reduces disparities in sentence length. Ibid.

The same argument (the very same argument) was made

and rejected in Booker, see 543 U. S., at 244, and Blakely,

see 542 U. S., at 313. The protection of the Sixth Amend

ment does not turn on this Court’s opinion of whether an

alternative scheme is good policy, or whether the legisla

ture had a compassionate heart in adopting it. The right

to trial by jury and proof beyond a reasonable doubt is a

given, and all legislative policymaking—good and bad,

heartless and compassionate—must work within the

confines of that reality. Of course the Court probably

exaggerates the benign effect of Oregon’s scheme, as is

suggested by the defense bar’s vigorous objection, evi

denced by the participation of the National Association of

Criminal Defense Lawyers as amicus in favor of respon

dent. Even that exaggeration is a replay of the rejected

dissent in one of our prior cases. There the Court re

sponded: “It is hard to believe that the National Associa

tion of Criminal Defense Lawyers was somehow duped

into arguing for the wrong side.” Blakely, supra, at 312.

Finally, the Court summons up the parade of horribles

assembled by the amicus brief of 17 States supporting

Oregon. It notes that “[t]rial judges often find facts” in

6 OREGON v. ICE

SCALIA, J., dissenting

connection with “a variety of sentencing determinations

other than the length of incarceration,” and worries that

even their ability to set the length of supervised release,

impose community service, or order entry into a drug

rehabilitation program, may be called into question. Ante,

at 10. But if these courses reduce rather than augment

the punishment that the jury verdict imposes, there is no

problem. The last horrible the Court invokes is the pros

pect of bifurcated or even trifurcated trials in order to

have the jury find the facts essential to consecutive sen

tencing without prejudicing the defendant’s merits case.

Ibid. That is another déjà vu and déjà rejeté; we have

watched it parade past before, in several of our Apprendi

related opinions, and have not saluted. See Blakely, su­

pra, at 336–337 (BREYER, J., dissenting); Apprendi, supra,

at 557 (same).

* * *

The Court’s peroration says that “[t]he jury-trial right is

best honored through a ‘principled rationale’ that applies

the rule of the Apprendi cases ‘within the central sphere of

their concern.’ ” Ante, at 11 (quoting Cunningham v.

California, 549 U. S. 270, 295 (2007) (KENNEDY, J., dis

senting)). Undoubtedly so. But we have hitherto consid

ered “the central sphere of their concern” to be facts neces

sary to the increase of the defendant’s sentence beyond

what the jury verdict alone justifies. “If the jury’s verdict

alone does not authorize the sentence, if, instead, the

judge must find an additional fact to impose the longer

term, the Sixth Amendment requirement is not satisfied.”

Id., at 290 (opinion of the Court). If the doubling or tri

pling of a defendant’s jail time through fact-dependent

consecutive sentencing does not meet this description,

nothing does. And as for a “principled rationale”: The

Court’s reliance upon a distinction without a difference,

and its repeated exhumation of arguments dead and bur

Cite as: 555 U. S. ____ (2009) 7

SCALIA, J., dissenting

ied by prior cases, seems to me the epitome of the opposite.

Today’s opinion muddies the waters, and gives cause to

doubt whether the Court is willing to stand by Apprendi’s

interpretation of the Sixth Amendment’s jury-trial guar

antee.