Amicus Curiae Brief — Jeremy Shane Fogleman, Petitioner v. Mississippi

No. 19-7794

IN THE

Supreme Court of the United States

____________________

JEREMY SHANE FOGLEMAN,

Petitioner,

v.

STATE OF MISSISSIPPI,

Respondent.

____________________

On Petition for a Writ of Certiorari

to the Mississippi Supreme Court

____________________

BRIEF OF THE DUE PROCESS INSTITUTE

AND THE NATIONAL ASSOCIATION FOR

PUBLIC DEFENSE AS AMICI CURIAE

IN SUPPORT OF PETITIONER

____________________

Shana-Tara O’Toole

DUE PROCESS INSTITUTE

700 Pennsylvania Avenue

SE, Suite 560

Washington, DC 20003

Jonathan D. Hacker

Kendall Turner

Counsel of Record

O’MELVENY & MYERS LLP

1625 Eye Street NW

Washington, DC 20006

(202) 383-5204

Emily Hughes

NATIONAL ASSOCIATION FOR kendallturner@omm.com

PUBLIC DEFENSE

130 Byington Rd.

Jeffrey L. Fisher

Iowa City, IA 52242

O’MELVENY & MYERS LLP

2765 Sand Hill Road

Menlo Park, CA 94025

i

TABLE OF CONTENTS

Page

INTERESTS OF AMICI CURIAE ............................ 1

INTRODUCTION AND SUMMARY OF THE

ARGUMENT ............................................................. 2

ARGUMENT ............................................................. 4

I.

Numerous States Have Sentencing

Schemes That, Like Mississippi’s, Allow

Judicial Fact-Finding To Delay Or

Eliminate Defendants’ Eligibility For

Parole. .................................................. 6

II.

The Question Presented Has Adverse

Consequences For Defendants Even

Beyond

Unconstitutional

Criminal

Sentences. .......................................... 12

CONCLUSION ........................................................ 16

ii

TABLE OF AUTHORITIES

Page(s)

CASES

Addington v. Texas,

441 U.S. 418 (1979) .............................................. 4

Alleyne v. United States,

570 U.S. 99 (2013) ....................................... passim

Apprendi v. New Jersey,

530 U.S. 466 (2000) .......................................... 2, 5

Brown v. State,

260 So. 3d 147 (Fla. 2018) ................................... 9

Byrd v. United States,

138 S. Ct. 1518 (2018).......................................... 1

Cato v. Sec’y, Fla. Dep’t of Corrs.,

2019 WL 6877172 (M.D. Fla. Dec. 17,

2019) ..................................................................... 9

Commonwealth v. Brown,

730 N.E.2d 297 (Mass. 2000) ............................... 5

Commonwealth v. Wolfe,

140 A.3d 651 (Pa. 2016) ....................................... 9

Duncan v. Louisiana,

391 U.S. 145 (1968) .............................................. 2

In re Winship,

397 U.S. 358 (1970) .......................................... 2, 4

Mitchell v. Wisconsin,

139 S. Ct. 2525 (2019).......................................... 1

Morrissey v. Brewer,

408 U.S. 471 (1972) ............................................ 12

People v. Lockridge,

870 N.W.2d 502 (Mich. 2015) .............................. 8

State v. Grate,

106 A.3d 466 (N.J. 2015) ..................................... 8

iii

TABLE OF AUTHORITIES

(continued)

Page(s)

State v. Iowa Dist. Ct. for Black Hawk Cty.,

616 N.W.2d 575 (Iowa 2000) ............................... 7

State v. Rosling,

180 P.3d 1102 (Mont. 2008) ................................. 9

State v. Soto,

322 P.3d 334 (Kan. 2014) .................................... 8

Timbs v. Indiana,

139 S. Ct. 682 (2019)............................................ 1

United States v. Bryant,

136 S. Ct. 1954 (2016).......................................... 1

United States v. Gaudin,

515 U.S. 506 (1995) .............................................. 4

United States v. Haymond,

139 S. Ct. 2369 (2019).......................................... 1

Wolff v. McDonnell,

418 U.S. 539 (1974) ............................................ 12

STATUTES

Alaska Stat. § 12.55.125(a) ............................8, 10, 15

Alaska Stat. § 12.55.125(l) ...................................... 15

Ariz. Rev. Stat. § 13-708 ........................................... 9

Fla. Stat. § 775.082(9) ............................................... 9

Fla. Stat. § 775.082(10) ............................................. 9

Fla. Stat. § 775.084 ................................................. 14

Fla. Stat. § 948.013 ................................................. 10

Fla. Stat. § 961.04 ................................................... 14

Ky. Rev. Stat. Ann. § 439.3401 ................................. 9

Ky. Rev. Stat. Ann. § 533.060 ................................... 9

iv

TABLE OF AUTHORITIES

(continued)

Page(s)

Ky. Rev. Stat. Ann. § 533.060(2) ............................ 15

La. Stat. Ann. § 14:27(D)(1)(b) ................................. 9

La. Stat. Ann. § 14:34.2(3) ........................................ 9

Mass. Gen. Laws ch. 94C § 32(c) ........................ 9, 14

Mass. Gen. Laws ch. 94C § 32H 1/2 ....................... 14

Minn. Stat. Ann. § 609.229 ....................................... 9

Minn. Stat. Ann. § 609.229(3)(a) ............................ 10

Miss. Code Ann. § 9-23-15 ...................................... 14

Miss. Code Ann. § 9-27-11 ...................................... 14

Miss. Code Ann. § 43-7-3(1)(g)(i) (2014) ................. 13

Miss. Code Ann. § 47-5-471 .................................... 14

Miss. Code Ann. § 47-5-1003 .................................. 13

Miss. Code Ann. § 97-3-2(2) .................................. 3, 9

Miss. Code Ann. § 97-3-2(2) (2014) ......................... 13

Miss. Code Ann. § 99-15-107 .................................. 13

Miss. Code Ann. § 99-19-71 .................................... 13

Miss. Code Ann. § 99-19-83 .................................... 15

Miss. Code Ann. § 97-9-72(2) (2014) ....................... 13

Mont. Code Ann. § 46-18-202 ................................. 14

Mont. Code Ann. § 46-18-207(6) ............................. 14

N.C. Gen. Stat. § 15A-1371 ....................................... 5

Neb. Rev. Stat. § 83-1,110......................................... 5

Nev. Stat. § 176.100(b)(3) ....................................... 10

Nev. Stat. § 176A.100(b)(1) ..................................... 10

Nev. Stat. § 193.161 .................................................. 9

v

TABLE OF AUTHORITIES

(continued)

Page(s)

Nev. Stat. § 200.750 .................................................. 9

Okla. Stat. tit. 21, § 13.1 ........................................... 9

Okla. Stat. tit. 22, § 18(A)(13) ................................ 14

Okla. Stat. tit. 59, § 858-301.1 ................................ 15

18 Pa. Cons. Stat. § 6121 .......................................... 9

42 Pa. Stat. and Cons. Stat. Ann. § 9717 ................. 9

R.I. Gen. Laws § 11-9-5.3(f) ...................................... 9

Va. Stat. § 53.1-43.1 ................................................ 14

Va. Stat. § 53.1-151(C) ........................................ 9, 10

OTHER AUTHORITIES

Danielle Kaeble, U.S. Dep’t of Justice,

Bureau of Justice Statistics, Probation

and Parole in the United States, 2016

(Apr. 2018) ......................................................... 11

Joan Petersilia, When Prisoners Come

Home: Parole and Prisoner Reentry

(2009) .............................................................10, 11

U.S. Dep’t of Justice, Bureau of Justice

Statistics, Reentry Trends in the U.S.

(last visited Apr. 14, 2020) ................................ 11

INTERESTS OF AMICI CURIAE1

The Due Process Institute is a bipartisan, nonprofit, public-interest organization that works to

honor, preserve, and restore principles of fairness in

the criminal justice system. Formed in 2018, the Institute has already participated as an amicus curiae

before this Court in cases presenting important criminal justice issues, including Timbs v. Indiana, 139 S.

Ct. 682 (2019); Mitchell v. Wisconsin, 139 S. Ct. 2525

(2019); and another case concerning the Sixth Amendment right to a jury trial, United States v. Haymond,

139 S. Ct. 2369 (2019).

The National Association for Public Defense

(“NAPD”) is an association of more than 14,000 attorneys, investigators, social workers, administrators,

and other professionals who fulfill constitutional

mandates to deliver public defense representation

throughout all U.S. states and territories. NAPD

plays an important role in advocating for defense

counsel and the clients they serve, and it is uniquely

situated to speak to issues of fairness and justice in

criminal legal systems. NAPD has filed numerous

amicus briefs with this Court, including in Byrd v.

United States, 138 S. Ct. 1518 (2018); and United

States v. Bryant, 136 S. Ct. 1954 (2016).

1 Pursuant to Rule 37.2(a), counsel for amici curiae provided

notice of amici’s intention to file this brief to counsel of record for

all parties. Counsel of record for Petitioner and Respondent

have both consented to the filing of this brief. Pursuant to Rule

37.6, amici affirm that no counsel for a party authored this brief

in whole or in part, and no person other than amici or their counsel made a monetary contribution to this brief’s preparation or

submission.

2

This case presents an important, recurring criminal law issue on which the courts are divided: whether

the Sixth Amendment requires a jury (rather than a

judge) to make any factual finding that automatically

postpones or eliminates a criminal defendant’s eligibility for parole. Resolving this issue is essential to

ensuring that courts do not dilute defendants’ critically important, constitutional right to have a jury

find all facts that increase their sentences beyond a

reasonable doubt.

INTRODUCTION AND

SUMMARY OF THE ARGUMENT

The Sixth Amendment guarantees the right to a

trial by jury in all serious criminal cases. See, e.g.,

Duncan v. Louisiana, 391 U.S. 145 (1968). And the

Due Process Clause of the Fourteenth Amendment

“protects the accused against conviction except upon

proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”

In re Winship, 397 U.S. 358, 364 (1970).

Applying these two constitutional guarantees together, this Court has held that “any ‘facts that increase the prescribed range of penalties to which a

criminal defendant is exposed’ are elements of the

crime” that must be found by a jury beyond a reasonable doubt. Alleyne v. United States, 570 U.S. 99, 111

(2013) (quoting Apprendi v. New Jersey, 530 U.S. 466,

490 (2000)). Specifically, in Apprendi, this Court held

that facts that may increase the statutory maximum

for a crime are elements that must be submitted to a

jury and found beyond a reasonable doubt. 530 U.S.

at 482–83. And in Alleyne, this Court held that a fact

that mandates a higher minimum sentence also

3

“forms an essential ingredient of the offense” and accordingly must be submitted to a jury and found beyond a reasonable doubt. Alleyne, 570 U.S. at 112–13.

This brief does not reiterate petitioner’s arguments why Alleyne applies to judicial fact-finding that

increases the amount of time a defendant must serve

before he is eligible for parole. Rather, it focuses on

two reasons why certiorari should be granted, apart

from the need to correct the errors of the decision below: First, the issue presented has national importance. At least fifteen states have laws that—like

the Mississippi law at issue here—allow judicial factfinding to raise the minimum amount of time a defendant must serve in prison before he is eligible for

parole, or render him wholly ineligible for any form of

early release. These state laws function just like the

statute in Alleyne: They increase the minimum sentence a prisoner must serve. For example, where (as

here) a state law bars release until the offender has

served half of his sentence, see Miss. Code Ann. § 973-2(2); Pet. App. 2–3, half of the sentence is the minimum sentence. In other words, these parole-eligibility dates—like the seven-year term at issue in Alleyne—effectively establish sentencing floors in state

indeterminate sentencing schemes. State laws that

allow judicial fact-finding to elevate these floors are

accordingly unconstitutional just like the federal law

in Alleyne.

Second, judicial fact-finding that raises the minimum length of a defendant’s sentence before parole

eligibility also has sweeping practical consequences

beyond the already significant (and unconstitutional)

4

consequence of extending the length of the defendant’s sentence: In many states, the same judicial determination that renders a defendant ineligible for

parole, or that delays a defendant’s eligibility for parole, also renders the defendant ineligible for a host of

state resources designed to help him rehabilitate and

reenter society. For example, judicial fact-finding can

render the crime ineligible for expungement. It can

also preclude the offender from work-release, other alternative sentencing programs, and drug treatment

programs. And it can lead to harsher sentences if the

defendant reoffends.

A criminal defendant’s rights under the Sixth and

Fourteenth Amendments should not vary based on

the happenstance of geography. This Court should

guarantee that the sweeping consequences of requiring a defendant to serve more time before he is eligible for parole flow only from a jury determination, not

from judge-found facts.

ARGUMENT

The requirement that a jury find “every fact necessary to constitute a crime” “beyond a reasonable

doubt,” In re Winship, 397 U.S. 358, 364 (1970), is an

essential protection against “an erroneous judgment”

and a recognition of the “magnitude” of “the interests

of the defendant,” Addington v. Texas, 441 U.S. 418,

423 (1979). The “right was designed to guard against

a spirit of oppression and tyranny on the part of rulers, and was from very early times insisted on by our

ancestors in the parent country, as the great bulwark

of their civil and political liberties.” United States v.

Gaudin, 515 U.S. 506, 510–11 (1995) (internal quotation marks and citation omitted).

5

Citing this history, Justice Thomas’s majority

opinion in Alleyne explained that common law had

long required juries to find “every fact that was a basis for imposing or increasing punishment.” 570 U.S.

at 109–10. That includes “[e]levating the low-end of

a sentencing range,” which “heightens the loss of liberty associated with the crime: the defendant’s ‘expected punishment has increased as a result of the

narrowed range’ and ‘the prosecution is empowered,

by invoking the mandatory minimum, to require the

judge to impose a higher punishment than he might

wish.’” Id. at 113 (quoting Apprendi, 530 U.S. at 552).

In these circumstances, the Sixth Amendment requires a jury to find all the facts that “alter[] the legally prescribed punishment so as to aggravate it.”

Id. at 114–15.2

A restriction on a defendant’s eligibility for parole

does exactly that. First, it alters the minimum prison

term a defendant must serve before being eligible for

release. Indeed, many states link eligibility dates

with minimum sentences. See, e.g., Neb. Rev. Stat.

§ 83-1,110; N.C. Gen. Stat. § 15A-1371; see also, e.g.,

Commonwealth v. Brown, 730 N.E.2d 297, 300 (Mass.

2000) (“The minimum sentence serves as a base for

determining [the defendant’s] parole eligibility . . . the

2 Justice Breyer, providing the fifth vote in Alleyne in a separate concurrence, agreed that it would be “highly anomalous to

read Apprendi as insisting that juries find sentencing facts that

permit a judge to impose a higher sentence while not insisting

that juries find sentencing facts that require a judge to impose a

higher sentence.” Alleyne, 570 U.S. at 123 (Breyer, J., concurring in part and concurring in the judgment). He wrote separately only to reiterate his view that Apprendi was wrongly decided. See id. at 122–23.

6

judge establishes both the maximum sentence the defendant will serve if he is never paroled and the minimum sentence the defendant will serve, after which

the prisoner becomes eligible for parole.” (internal

quotation marks, citations, and footnote omitted)).

And second, a judge’s factual finding that delays the

date of a defendant’s eligibility for parole necessarily

aggravates the penalty. See Alleyne, 570 U.S. at 113

(“[I]t is impossible to dispute that facts increasing the

legally prescribed floor aggravate the punishment.”).

Nevertheless, many state sentencing schemes allow more severe minimum sentences in the form of

delayed or ineligibility for parole, based solely on the

judge’s factual findings at sentencing. All of those

state laws are—as petitioner argues as to the Mississippi law applied in his case—unconstitutional under

a proper understanding of Alleyne. Yet at present, all

these laws are enforced every day not only to preclude

criminal defendants from securing release earlier, but

also to deprive them of a variety of other benefits, including access to alternative-sentencing programs

and drug rehabilitation programs. This Court should

grant certiorari to eliminate the unconstitutional

practice of allowing judicial fact-finding to delay or

eliminate defendants’ eligibility for parole.

I.

Numerous States Have Sentencing Schemes

That, Like Mississippi’s, Allow Judicial

Fact-Finding To Delay Or Eliminate Defendants’ Eligibility For Parole.

In Alleyne, the federal statute at issue prescribed

a prison sentence of “not less than 5 years,” or—if the

judge found that the defendant brandished a

weapon—“not less than 7 years.” 570 U.S. at 103–04.

7

After the jury was discharged in Alleyne’s case, the

judge found that Alleyne had brandished a weapon.

Id. at 104. The judge accordingly sentenced Alleyne

to the mandatory minimum available under the law:

7 years in prison. Id. That sentence was fixed and

not subject to subsequent reduction by paroling authorities.

Many states, however, impose sentences that allow a possibility of the defendant’s release on parole

before the maximum sentence imposed has been

served. In these states, the period of the sentence

that must be served before the defendant is eligible

for parole is effectively the minimum sentence. See,

e.g., State v. Iowa Dist. Ct. for Black Hawk Cty., 616

N.W.2d 575, 579 (Iowa 2000) (noting that “practical

effect” of state laws requiring defendant to serve certain percentage of sentence before parole eligibility is

to establish “a minimum sentence”). That is because

the parole-eligibility date is like the minimum sevenyear term in the determinate sentencing scheme in

Alleyne: It is a floor of time that must be served. Accordingly, all state indeterminate sentencing schemes

that allow a judicial fact-finding to impose a parole

eligibility date later than the date that would apply in

the absence of that finding are vulnerable to an Alleyne challenge.

1. Indeed, several states have already recognized

the constitutional infirmity of their sentencing

schemes following Alleyne and have amended them to

address that problem. As the Mississippi Supreme

Court acknowledged in this case, the New Jersey Supreme Court has “held that [New Jersey’s sentencing]

statute was unconstitutional under Alleyne because it

8

required the court to impose a period of parole ineligibility if the judge found that the defendant was involved in organized crime.” Pet. App. 9 (citing State

v. Grate, 106 A.3d 466, 475–76 (N.J. 2015) (alteration

in original)). The Michigan Supreme Court has also

held Michigan’s sentencing guidelines “unconstitutional under Alleyne to the extent that they required

the court to extend a defendant’s parole eligibility

date based on facts found by the judge but not the

jury.” Id. (citing People v. Lockridge, 870 N.W.2d 502,

516–17 (Mich. 2015)).

Similarly, prior Kansas law allowed a judge to

deny parole eligibility to a defendant convicted of

first-degree murder if the judge found certain aggravating factors. See State v. Soto, 322 P.3d 334, 347–

48 (Kan. 2014). But following Alleyne, the Supreme

Court of Kansas held that this sentencing procedure

“violate[d] the Sixth Amendment . . . because it permits a judge to find by a preponderance of the evidence the existence of one or more aggravating circumstances necessary to impose an increased mandatory minimum sentence” without eligibility for parole,

“rather than requiring a jury to find the existence of

the aggravating circumstances beyond a reasonable

doubt.” Id. at 338.

2. At least fifteen states, however, have retained

sentencing laws that should be invalidated under Alleyne because they allow judicial fact-finding to determine the floor for parole eligibility: Alaska, Arizona,

Florida, Kentucky, Louisiana, Massachusetts, Minnesota, Mississippi, Montana, Nebraska, Nevada, Oklahoma, Pennsylvania, Rhode Island, and Virginia.

See, e.g., Alaska Stat. § 12.55.125(a); Ariz. Rev. Stat.

9

Ann. § 13-708; Fla. Stat. § 775.082(9);3 Ky. Rev. Stat.

Ann. § 439.3401; La. Stat. Ann. §§ 14:27(D)(1)(b),

14:34.2(3); Mass. Gen. Laws ch. 94C § 32(c); Minn.

Stat. Ann. § 609.229; Miss. Code Ann. § 97-3-2(2);

Nev. Stat. §§ 193.161, 200.750; Okla. Stat. tit. 21,

§ 13.1; 18 Pa. Cons. Stat. § 6121; 42 Pa. Stat. and

Cons. Stat. Ann. § 9717;4 R.I. Gen. Laws § 11-9-5.3(f);

Va. Stat. § 53.1-151(C); see State v. Rosling, 180 P.3d

1102, 1116 (Mont. 2008) (rejecting Apprendi challenge to law allowing sentencing judge to deem defendant ineligible for parole upon finding “that the restriction is necessary for the protection of society”).

These state schemes allow enhanced penalties

based on a variety of judicial fact-finding. For example, some deny parole for those who have used firearms during the commission of their crimes, Ky. Rev.

Stat. Ann. § 533.060; for those who have committed

their offenses while on release from or awaiting trial

for another crime, see, e.g., Ariz. Rev. Stat. § 13-708;

3 An Alleyne-style challenge to this subsection is currently on

appeal to the Eleventh Circuit. See Cato v. Sec’y, Fla. Dep’t of

Corrs., 2019 WL 6877172 (M.D. Fla. Dec. 17, 2019), appeal filed

sub nom. Cato v. Florida, No. 20-10059 (11th Cir.). Florida’s Supreme Court recently invalidated a different subsection of this

statute, Fla. Stat. § 775.082(10), as inconsistent with the Sixth

Amendment because it required the court, not the jury, to find

the fact of dangerousness to the public, and that finding increased the defendant’s maximum sentence. See Brown v. State,

260 So. 3d 147, 150–51 (Fla. 2018).

4 The Supreme Court of Pennsylvania relied on Alleyne to

invalidate similar statutes that allow imposition of mandatory

minimums based on judicial findings. See, e.g., Commonwealth

v. Wolfe, 140 A.3d 651, 660–63 (Pa. 2016). But the Pennsylvania

statute cited above appears to remain in force.

10

Nev. Stat. § 176A.100(b)(1); or for those who have

failed to complete an assigned program of treatment

and rehabilitation, see Nev. Stat. § 176.100(b)(3).

Other laws deny parole eligibility based on a judicial

finding of a particular relationship between the victim and the defendant, see, e.g., Fla. Stat. § 948.013,

or of the age of the victim, see, e.g., Minn. Stat. Ann.

§ 609.229(3)(a); Va. Stat. § 53.1-151(C).

State laws that require a minimum sentence without eligibility for parole based on judicial findings are

vulnerable to an Alleyne-style challenge even if the

judge has the option to impose that sentence without

that fact-finding.

See, e.g., Alaska Stat.

§ 12.55.125(a). The mandatory nature of the ineligibility for parole when the judge makes such a finding

is what renders it problematic under Alleyne. Indeed,

in Alleyne itself, the judge had the discretion to impose seven years without finding the defendant brandished a gun; the seven-year sentence became mandatory only upon that finding. 570 U.S. at 103–04.

This Court nevertheless invalidated that statute because it allowed judicial fact-finding to increase the

mandatory minimum sentence for the crime. Id. at

103. The same result obtains when a state allows judicial fact-finding to increase the amount of time a defendant must serve before being eligible for parole.

In short, many states—not just Mississippi—have

sentencing schemes that are vulnerable to the Alleyne

challenge petitioner advances here.

3. Nor is the question presented by the petition of

mere theoretical importance in those states. Parole is

the “standard mode of release from prison.” Joan Petersilia, When Prisoners Come Home: Parole and

11

Prisoner Reentry 62 (2009). In the 1970s, more than

70% of inmates who obtained release did so through

parole. Id. More recently, the U.S. Department of

Justice reported that nearly 80% of state prisoners

are released to parole supervision.5 At the end of

2016, 760,392 state prisoners were on parole.6

That so many prisoners are released on parole confirms that parole-eligibility dates operate as minimum sentences in most states where they are imposed. For all these prisoners, state laws that allow

judicial fact-finding to determine parole eligibility are

problematic in the same way that the federal statute

at issue in Alleyne was problematic: Both allow

judges to determine facts that increase the minimum

amount of time defendants must serve.

4. Nor should the importance of a prisoner’s parole

eligibility date be minimized on the view that parole

is merely a different way of serving a sentence. Parole

is a shorter sentence. Indeed, the U.S. Department of

Justice itself describes parole as “release in the community following a term in state or federal prison.”7

And for good reason: A parolee is free in the world,

5 U.S. Dep’t of Justice, Bureau of Justice Statistics, Reentry

Trends in the U.S. (last visited Apr. 14, 2020),

https://www.bjs.gov/content/reentry/releases.cfm.

6 Danielle Kaeble, U.S. Dep’t of Justice, Bureau of Justice

Statistics, Probation and Parole in the United States, 2016, Table

5

(Apr.

2018),

https://www.bjs.gov/content/pub/pdf/ppus16.pdf.

7 Danielle Kaeble, U.S. Dep’t of Justice, Bureau of Justice

Statistics, Probation and Parole in the United States, 2016, at 2

(Apr. 2018), https://www.bjs.gov/content/pub/pdf/ppus16.pdf

(emphasis added).

12

merely subject to certain restrictions designed to

guard against future misconduct. See Morrissey v.

Brewer, 408 U.S. 471, 482 (1972) (“Though the State

properly subjects [a parolee] to many restrictions not

applicable to other citizens, his condition is very different from that of confinement in prison.” (footnote

omitted)). A parolee “can be gainfully employed and

is free to be with family and friends and to form the

other enduring attachments of normal life.” Id. And

as this Court has specifically observed, “the liberty of

a parolee . . . includes many of the core values of unqualified liberty and its termination inflicts a ‘grievous loss’ on the parolee and often on others.” Id.; see

also id. (describing the “liberty” of a parolee as “valuable”); Wolff v. McDonnell, 418 U.S. 539, 560–61

(1974) (describing the parolee as “free” and revocation

of parole as an “immediate disaster . . . for the parolee”).

In short, the question presented has sweeping consequences for criminal defendants across the nation.

This Court should grant review to ensure uniform application of Alleyne’s rule, rather than leaving criminal defendants vulnerable to infringement of their

Sixth and Fourteenth Amendment rights based

purely on where they happen to be prosecuted.

II. The Question Presented Has Adverse Consequences For Defendants Even Beyond Unconstitutional Criminal Sentences.

As explained above, state laws that allow judicial

fact-finding to determine a defendant’s eligibility for

parole trigger the rule in Alleyne because they raise

the penalty floor. Such judicial findings can—in addition to rendering the defendant ineligible for parole

13

or delaying his eligibility for that outcome—result in

a number of negative collateral consequences, including ineligibility for a host of government resources designed to assist with his reentry into society and

higher penalties if he reoffends.

1. As to the resources for which such judicial factfinding can render a defendant ineligible, Mississippi

itself is a good example. In petitioner’s case, the jury

convicted him of failing to stop a motor vehicle pursuant to the signal of a law enforcement officer while

operating the vehicle in reckless disregard of the

safety of persons or property. See Pet. App. 4; Miss.

Code Ann. § 97-9-72(2) (2014). The judge then found

that petitioner “used physical force, or made a credible attempt or threat of physical force against another

person as part of a criminal act.” Miss. Code Ann.

§ 97-3-2(2) (2014); see Pet. App. 4. Based on that finding, the judge classified his offense as a “crime of violence,” which rendered petitioner ineligible for parole

or any other type of early release until he served at

least 50% of his sentence. Pet. App. 4–5; Miss. Code

Ann. § 43-7-3(1)(g)(i) (2014).

The judge’s “crime of violence” classification rendered petitioner ineligible for a variety of resources

that could have otherwise eased his rehabilitation

and reentry into society following his prison term.

These include programs allowing intensive supervision as an alternative to incarceration, Miss. Code

Ann. § 47-5-1003, pretrial intervention programs

that, upon successful completion, allow dismissal of

the charges and avoidance of prison time, id. § 99-15107, and the possibility of expungement, id. § 99-1971. Individuals found to have committed a “crime of

14

violence” are also ineligible for alcohol and drug intervention programs, id. § 9-23-15, mental health treatment, id. § 9-27-11, and state-county work programs,

id. § 47-5-471.

Nor is Mississippi an outlier. Many other states

allow the judicial fact-finding that governs parole eligibility to determine defendants’ eligibility for a variety of state resources. For example, Massachusetts

precludes defendants found to be ineligible for parole

based on certain judicial fact-finding from participating in work-release programs. See Mass. Gen. Laws

ch. 94C §§ 32(c), 32H 1/2. In Montana, judicial factfinding rendering a defendant ineligible for parole

also renders him ineligible for supervised-release programs, Mont. Code Ann. § 46-18-202, and some sexual

offender treatment programs, id. § 46-18-207(6).

Similarly, in Oklahoma—as in Mississippi—a defendants may be prohibited from ever expunging his record if a judge makes certain factual findings at the

time of sentencing. See Okla. Stat. tit. 22, § 18(A)(13).

Many of the benefits from which defendants are

excluded have lasting financial consequences. For example, in Virginia, being “sentenced to a term that

makes [the prisoner] ineligible for release”—which

can be done through judicial fact-finding alone—

means a defendant is ineligible for the “personal trust

account” that the state is otherwise required to establish in his name. Va. Stat. § 53.1-43.1. In Florida,

judicial fact-finding that determines whether a conviction is a “violent felony” conviction can render a defendant ineligible for any compensation for wrongful

incarceration. See Fla. Stat. §§ 775.084, 961.04. And

in Oklahoma, a defendant is barred from obtaining a

15

real estate license for twenty years if the judge made

certain factual findings during the sentencing hearing. See Okla. Stat. tit. 59, § 858-301.1.

2. Many states also impose stiffer penalties on individuals previously determined, based on facts found

by the judge at sentencing, to be ineligible for parole.

Again, Mississippi provides a good example: Where a

judge determines—even if that determination stems

from facts that he, rather than the jury, has found—

that a defendant’s crime is a “crime of violence,” the

defendant is subject to stiffer penalties if he reoffends.

See Miss. Code Ann. § 99-19-83.

Other states similarly impose harsher penalties on

defendants who reoffend if, in a prior proceeding, a

judge made certain factual findings. For example, in

Alaska, someone who has a prior conviction “of two or

more serious felonies”—which prior offenses may be

“serious felonies” only by virtue of judicial fact-finding—must be “sentenced to a definite term of imprisonment of 99 years.” Alaska Stat. § 12.55.125(a),

(l)And Kentucky law mandates that sentences be

served consecutively rather than concurrently if a

judge determines that a new felony was committed

while the defendant was on parole following a felony

conviction. See Ky. Rev. Stat. Ann. § 533.060(2).

3. These lists are illustrative, not exhaustive. But

they show the serious collateral consequences of a

judge’s factual findings that govern a defendant’s eligibility for parole. And these consequences confirm

the practical importance of a jury’s participation in

the decision whether to enhance a defendant’s sentence.

16

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

Shana-Tara O’Toole

DUE PROCESS INSTITUTE

700 Pennsylvania Avenue

SE, Suite 560

Washington, DC 20003

Jonathan D. Hacker

Kendall Turner

Counsel of Record

O’MELVENY & MYERS LLP

1625 Eye Street NW

Washington, DC 20006

(202) 383-5204

Emily Hughes

NATIONAL ASSOCIATION FOR kendallturner@omm.com

PUBLIC DEFENSE

130 Byington Rd.

Jeffrey L. Fisher

Iowa City, IA 52242

O’MELVENY & MYERS LLP

2765 Sand Hill Road

Menlo Park, CA 94025

April 15, 2020