Supreme Court Update: Alleyne v. United States (11-9335) and Salinas v. Texas (12-246)

June 19, 2013 Supreme Court Update

Greetings, Court fans!

As promised, we're back with the other two decisions from Monday: Alleyne v. United States (11-9335), overruling Harris v. United States (2002) and holding that facts that increase the mandatory minimum penalty for a crime must be submitted to a jury; and Salinas v. Texas (12-246), on whether prosecutors may use a defendant's silence during a noncustodial interview as evidence of guilt. These two cases generated eight opinions, so we better get started.

The stage was set for a battle royale in Alleyne v. United States (11-9335) by Apprendi v. New Jersey (2000), holding that, under the Sixth Amendment, facts increasing the maximum sentence for a crime must be found by a jury beyond reasonable doubt, and Harris v. United States (2002), holding that facts increasing the mandatory minimum need not be. The facts of Allen Ryan Alleyne's case serve as an illustrative example. Alleyne was convicted of multiple offenses, including using or carrying a firearm in relation to a crime of violence. The relevant statute set a mandatory minimum sentence of 5 years, 7 if the weapon was "brandished," and 10 if it was discharged. Although the jury did not indicate whether the firearm was "brandished," Alleyne's presentence report recommended the 7-year sentence, and the District Court imposed it. The District Court held that, under Harris, brandishing was a sentencing factor that the court could find by a preponderance of the evidence without running afoul of the Sixth Amendment. The Court of Appeals affirmed.

A narrow majority of the Court voted to overturn Harris instead. Justice Thomas wrote for the majority, joined by Ginsburg, Sotomayor, Kagan, and – in most critical part – Breyer. The majority rejected Harris' distinction between facts that increase the statutory maximum and facts that increase only the mandatory minimum as inconsistent with Apprendi and the Sixth Amendment. In Apprendi, the Court held that facts that increase the prescribed range of penalties to which a criminal defendant is exposed are elements of the crime; under the Sixth Amendment, defendants have the right to have a jury find those elements beyond a reasonable doubt. Harris drew a distinction between statutory maximums and mandatory minimums on the ground that minimums merely limit a judge's choices within the authorized range, as opposed to increasing the authorized range. The Court no longer found this distinction supportable: "It is impossible to dissociate the floor of a sentencing range from the penalty affixed to the crime." Because "the legally prescribed range is the penalty affixed to the crime … it follows that that a fact increasing either end of the range produces a new penalty and constitutes an ingredient of the offense." As for overruling Harris, the majority explained in a footnote that the "force of stare decisis is at its nadir in cases concerning procedural rules that implicate fundamental constitutional protections."

Justice Sotomayor, joined by Ginsburg and Kagan, penned a separate concurring opinion to elaborate on the "special justification" for overruling Harris. First, the force of stare decisis is reduced in cases involving procedural rules that "do not govern primary conduct and do not implicate the reliance interests of private parties." To the extent that federal and state governments have relied on Harris, their reliance interest is minimal because prosecutors can choose to present the facts needed for a mandatory minimum to a jury. Second, a decision "may be ‘of questionable precedential value' when ‘a majority of the Court expressly disagree[s] with the rationale of [a] plurality.'" It turns out that Justice Breyer provided the fifth vote for the judgment in Harris, not because he saw a difference between maximums and minimums, but because he had never agreed with Apprendi in the first place. Since then, however, Apprendi has become even more firmly rooted in the Court's jurisprudence while Harris has become more of an outlier. Justice Sotomayor dismissed Justice Alito's concerns about damage to the principle of stare decisis, concluding that "[r]arely will a claim for stare decisis be as weak as it is here, where a constitutional rule of criminal procedure is at issue that a majority of the Court has previously recognized is incompatible with our broader jurisprudence."

Justice Breyer, as you might expect, also penned a separate opinion concurring in part and concurring in the judgment to explain the switch in his vote. He still thought Apprendi was wrongly decided (because, in his view, sentencing facts never have to be submitted to a jury). But given that Apprendi "has now defined the relevant legal regime for an additional decade," "the law should no longer tolerate the anomaly that the Apprendi/Harris distinction creates." To Breyer, it was "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."

Turning to the dissenters, there were two schools of thought. The first, led by the Chief and joined by Justices Scalia and Kennedy, hewed close to Harris' reasoning. While the Sixth Amendment prohibits a judge from sentencing a defendant to more than a jury has authorized, there is no risk of judicial overreaching with mandatory minimums because minimum sentences will still fall within the range of what a jury has authorized. The Chief elected "not [to] quibble" with the majority's application of the Court's stare decisis precedents, saying only that majority's new rule "finds no support in the history or purpose of the Sixth Amendment."

Justice Alito struck his own path in dissent, taking the stare decisis issue head on, writing that "other than the fact that there are currently five Justices willing to vote to overrule Harris, and not five Justices willing to overrule Apprendi, there is no compelling reason why the Court overrules the former rather than the latter." (Alito made no secret of his view that "[i]f the Court is of a mind to reconsider existing precedent, a prime candidate should be Apprendi[.]") Alito noted that if Harris was not entitled to stare decisis weight because Justice Breyer didn't agree with the plurality's reasoning, then neither should the Court's opinion in this case, because Breyer did not actually agree with the plurality's reading of the Sixth Amendment. He concluded: "The Court's decision creates a precedent about precedent that may have greater precedential effect than the dubious decisions on which it relies."

Moving on now to Salinas v. Texas (12-246), the Court initially granted cert to resolve a circuit spilt over whether prosecutors may use a defendant's assertion of the Fifth Amendment privilege against self-incrimination during a noncustodial interview as evidence of guilt. Unfortunately, the Court itself split 3-2-4 and was unable to answer this question definitively.

But we're getting ahead of ourselves. Back in 1993, Genovevo Salinas agreed to hand over his shotgun and accompany police to the station for questioning during the course of a double-homicide investigation. The police treated the interview as noncustodial and did not give Salinas any Miranda warnings. Salinas initially answered an officer's questions, but clammed up when asked whether the shotgun would match shell casings recovered from the crime scene: he "[l]ooked down at the floor, shuffled his feet, bit his bottom lip, cl[e]nched his hands in his lap, [and] began to tighten up." After a few moments of silence, the officer asked other questions, which Salinas answered. Salinas was allowed to leave. Prosecutors decided to bring charges a few days later, after additional evidence came to light, but by then, Salinas had hightailed it out of town. The police found him 14 years later. At trial for the murders, prosecutors presented evidence of Salinas' reaction to the officer's question about the shell casings as evidence of his guilt. Salinas was convicted. On direct appeal, Salinas argued that the prosecutors' use of his silence violated his Fifth Amendment rights. The Texas intermediate appellate and high courts rejected Salinas' argument, on the ground that his silence during the noncustodial interview was not "compelled" within the meaning of the Fifth Amendment.

A majority of the Court affirmed, but without a unified opinion. Justice Alito, joined by the Chief and Justice Kennedy, found that Salinas' Fifth Amendment claim failed before even reaching the question on cert – whether prosecutors may use a defendant's assertion of the Fifth during a noncustodial interview – because Salinas never actually asserted the privilege during his interview. The privilege against self-incrimination is just that: a privilege and an exception to the general rule that the Government has the right to everyone's testimony. The Fifth Amendment privilege must be invoked to apply. The Court has only recognized exceptions to the need to invoke where a defendant decides not to testify at trial, and where governmental coercion makes the defendant's forfeiture of the privilege involuntary (i.e., a custodial situation). Neither exception applied in this case. The plurality rejected Salinas' request to create a third exception, for cases in which a witness is silent in the face of official suspicions, as "placing a needless new burden on society's interest in the admission of evidence that is probative of a criminal defendant's guilt."

Justices Thomas and Scalia provided the two additional votes necessary to affirm the judgment against Salinas, but for a different reason. In their view, a defendant's silence should always be fair game. They had never agreed with the holding in Griffin v. California (1965), that the Fifth Amendment prohibits a prosecutor from commenting on a defendant's silence at trial, and would not extend it to a defendant's silence during a noncustodial interview.

The dissenters, led by Justice Breyer, fell on the opposite end of the spectrum. For the dissenters, permitting a prosecutor to comment on a defendant's constitutionally protected silence "would put that defendant in an impossible predicament": if he answers, he may reveal prejudicial facts even if he is innocent; if he remains silent, the prosecutor may argue that the silence evidences guilt; and if he tries to take the stand to explain himself, the prosecution can introduce impeachment evidence that would otherwise be inadmissible. That predicament can arise in noncustodial situations as well as custodial ones. Here, for example, Salinas' noncustodial questioning took a clearly accusatory turn. Moreover, under the Court's precedent, no "ritualistic formula" should be required to invoke the privilege. While most Americans are aware of a right to remain silent, it is unreasonable to expect non-lawyers to invoke the Fifth Amendment by name. The dissenters would simply ask: "Can one fairly infer from an individual's silence and surrounding circumstances an exercise of the Fifth Amendment's privilege?" If so, as the dissenters believed in Salinas' case, then prosecutors should not be able to comment on it.

The takeaway from this fractured decision? In order to remain silent during a noncustodial interview and even have a chance that it won't be used against you, you'll have to say enough to make clear that you're exercising your Fifth Amendment rights.

That's all we have for now, but we'll be back as soon as there are new decisions to report.

Kim, Jenny & Julie

From the Appellate and Complex Legal Issues Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart or any other member of the Practice Group at 203-498-4400