By David Loudon
Introduction
In a series of cases starting with Apprendi v. New Jersey, 1 the United States Supreme Court has held that the Sixth Amendment requires that any fact that increases the minimum or maximum sentence that a judge can impose on an offender2 must be found by the jury beyond a reasonable doubt, rather than by the sentencing judge, unless the fact is a prior conviction, an element of the offense for which the offender was convicted, or a fact admitted by the offender.3 While early cases such as Harris v. United States4 limited Apprendi to judicial fact-finding that increased the maximum sentence, and rejected any constitutional challenge to the judge’s reliance on facts that the jury had not found in raising the minimum sentence that an offender must serve, the Court extended Apprendi to cover minimum as well as maximum sentences in Alleyne v. United States. 5 There are, however, important unresolved issues concerning the reach of Apprendi. Apprendi, Harris and Alleyne all involved determinate sentencing systems under which the offender, once sentenced, would serve his entire sentence, no more, no less.6 The Court has yet to deal directly with how the Apprendi line of cases applies in an indeterminate sentencing system,7 in which a judge imposes two sentences on an offender: a minimum amount of time the offender must serve before he is eligible for parole and a maximum amount he could serve before he must be released.8 In its 2015 decision in People v. Lockridge, the Michigan Supreme Court held that Michigan’s indeterminate sentencing system violated the Sixth Amendment.9 Specifically, the Michigan Supreme Court reasoned that the Sixth Amendment, as interpreted by the United States Supreme Court in Alleyne v. United States, made increasing the minimum sentence that a judge can impose, i.e., the amount of time that an offender must serve before being considered for parole, based on judicial fact-finding unconstitutional.10 This was the proper holding. An indeterminate system has only one minimum sentence.11 As a result, when judicial fact-finding increases the minimum sentence a judge must impose, i.e., the amount of time that an offender must serve in prison in an indeterminate sentencing system, it is raising the statutory minimum in violation of Alleyne. 12 The Michigan Supreme Court in Lockridge did not, however, address its pre-Alleyne holding that judicial fact-finding that increases the maximum sentence that an offender must serve before being considered for parole does not violate the Sixth Amendment.13 This article argues, using the Michigan indeterminate sentencing system as a case study, that Apprendi should apply to judicial fact-finding that may raise either the maximum or minimum sentences that an offender must serve before being considered for parole in an indeterminate sentencing system.14 More particularly, the Supreme Court’s 2013 decision in Alleyne has clarified that the proper inquiry in Sixth Amendment cases is whether a fact found aggravates the legally prescribed range of punishment available for a judge to impose on an offender.15 Since judicial fact-finding that increases the maximum or minimum sentences within which an offender must serve in prison aggravates the legally prescribed punishment for his crime, the reasoning of Apprendi should apply. The first part of this article defines the language of sentencing and the distinct concepts of judicial sentencing and parole availability. The second explores the Court’s Sixth Amendment jurisprudence before Alleyne beginning with Apprendi. The Court in these cases only dealt directly with determinate sentencing systems, leaving open the question of how these principles would apply in an indeterminate system. The third part describes the Michigan sentencing system, and why constitutional challenges to that system failed prior to the Court’s decision in Alleyne. The fourth discusses the United State Supreme Court’s decision in Alleyne, and the Michigan Supreme Court’s subsequent decision in Lockridge declaring its indeterminate sentencing system unconstitutional. The fifth argues that Alleyne renders judicial fact-finding that increases either the minimum or maximum sentence that an offender must serve in an indeterminate sentencing system unconstitutional. Finally, the last part of the article summarizes its contents and briefly explores what implications its conclusions would have on indeterminate sentencing systems in other states. The language of sentencing A major issue that plagues court opinions and scholarly works in this area is the lack of clarity in the use of particular sentencing terms. Courts and commentators frequently contrast “determinate” and “indeterminate” sentencing.16 But “indeterminate” sentencing may refer to either certain forms of judicial sentencing or to sentencing that also sets minimum and maximum sentences that an offender either must or could serve before being considered for parole. Thus it is vital to clarify the definitions of these terms to avoid conflating these two concepts. 163 Judicial sentencing The first important concept, which the Court has discussed extensively in its Apprendi line of cases, is judicial sentencing of an offender and the amount of discretion the judge has in imposing a sentence.17 There are two basic systems that a state can enact for allowing judges to determine the sentence of an offender.18 The first is a system in which the statutory scheme allows the judge to sentence an offender to any length of time within the range proscribed for that crime.19 For example, a statute might permit a judge to sentence an offender convicted of armed robbery to any sentence between five and ten years. The judge has complete discretion to determine where within this range to sentence an offender. This article will refer to such a system, sometimes referred to as an “indeterminate” system,20 as a “discretionary judicial sentencing system,” or a “discretionary system.”21 This system is discretionary because the judge has complete discretion to sentence an offender within the range prescribed by statute for the crime, possibly subject to advisory guidelines that the court is not bound to follow.22 On the other hand, there are other sentencing systems that limit a judge’s sentencing discretion based upon additional facts found about that particular offender, either by the judge or the jury.23 For example, such a system will set the general sentencing range for an offender convicted of larceny at one to five years. However, if the judge or jury finds that the particular offender being sentenced committed larceny with a firearm, then the range within which the judge must sentence that offender shifts from one to five years to three to five years, or from one to five years to one to seven years. Once the factfinder finds that the offender committed larceny with a firearm, the judge’s binding sentencing range is altered, and he must sentence the offender to a sentence within that new range.24 This article will refer to such a system, frequently referred to as a “determinate sentencing system,” as a “binding judicial sentencing range” or a “binding system.” Such a system is binding because facts found by the judge or jury alter the range within which a judge must sentence the offender.25 Parole availability The second important concept in sentencing is whether an offender can obtain early release on parole.26 A majority of states offer offenders the opportunity to obtain release prior to serving their entire term of imprisonment.27 In these states, an offender receives two sentences, the first sentence constituting the amount of time he must serve in prison before being considered for parole, and the second constituting the amount of time he could serve if his parole request is not granted.28 For example, an offender may be sentenced to five to ten years in prison; five years being the amount of time the offender must serve before he may be considered for parole, and ten years being the longest amount of time the offender could serve in prison if not released early on pacould or must? 164 national lawyers guild review role. This article will refer to such a system as an “indeterminate sentencing system” or “indeterminate system.”29 On the other hand, some states (and the federal system), do not offer offenders a chance to obtain early release by applying to a parole board.30 In such a system, the offender must serve the entire sentence that the judge imposes upon him, nothing more, nothing less.31 If a judge sentences an offender to seven years in prison, he will serve exactly seven years in prison. This article will refer to such a system as a “determinate sentencing system” or a “determinate system.” The interaction between the two These two concepts—judicial sentencing and parole availability—define the sort of sentencing system the State has chosen as part of an indeterminate sentencing system.32 Once a state decides that it is going to adopt an indeterminate system, it must decide how to determine how long an offender must serve in prison before he may be considered for parole and how long he could serve if denied parole.33 Similar to sentencing in a determinate system, a state enacting an indeterminate system may enact a binding or discretionary system for determining the amount of time an offender must and could serve in prison. Thus, an indeterminate sentencing system may give the judge complete discretion to choose the sentences an offender must and could serve (a discretionary indeterminate sentencing system), or it could limit the judge’s discretion based upon additional fact finding (a binding indeterminate sentencing system). Pre-Alleyne and indeterminate sentencing These two distinct concepts, judicial sentencing and parole availability, create separate considerations when determining how the Sixth Amendment should be applied.34 The Court, starting with Apprendi, has dealt extensively with the concept of judicial sentencing, ultimately concluding that, in a binding determinate sentencing system, any fact that increases the minimum or maximum sentence to which a judge may sentence an offender must be found by a jury beyond a reasonable doubt.35 However, the Supreme Court has not squarely dealt with whether any fact that increases the sentence an offender must serve before being considered for parole in an indeterminate system must also be found by a jury beyond a reasonable doubt.36 The Apprendi line In Apprendi v. New Jersey, the Court held that “other than the fact of prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to the jury and proved beyond a reasonable doubt.” 37 In Apprendi, the offender pled guilty to one count of “possession of a firearm for an unlawful purpose,” for which the judge must sentence the offender to a term of imprisonment between five and ten years.38 At sentencing, the judge found by a preponderance of the evidence “that the 165 crime was motivated by racial bias,” increasing the range of sentences within which the judge must imprison the offender to ten to twenty years in prison.39 The Court ultimately concluded that increasing the maximum sentence that the judge could impose upon the offender based upon judicial fact-finding violated the offender’s Sixth and Fourteenth Amendment rights to a jury trial.40 Two years later, the Court held in Harris that a judge could find facts that increased the minimum sentence the judge could impose on an offender.41 Harris was found guilty of selling illegal narcotics while in possession of a weapon, for which the statutory minimum sentence that the judge could impose was five years imprisonment.42 However, the sentencing judge, pursuant to 18 U.S.C. § 924(c)(1)(A), found by a preponderance of the evidence that the offender had “brandished” the firearm, increasing the minimum sentence the judge could impose to seven years in prison.43 A majority of the Court ultimately concluded that this did not violate the offender’s Sixth Amendment rights.44 The plurality opinion distinguished Apprendi on the ground that increasing the mandatory minimum sentence a judge can impose on an offender does not “extend the offender’s sentence beyond that authorized by the jury’s verdict.”45 Instead, once a jury finds the offender guilty, it has “already found all the facts necessary to authorize the Government to impose the sentence.”46 Since the jury has authorized a sentence anywhere within that statutory range, an offender’s Sixth Amendment rights are not violated.47 Justice Breyer, while admitting that he could “not easily distinguish Apprendi from this case in terms of logic,” nevertheless concurred in the Court’s judgment based upon his belief that Apprendi had been wrongly decided.48 In Blakely v. Washington, the Court expanded on the doctrine announced in Apprendi. Blakely had pled guilty to kidnapping his wife, a class B felony.49 While the maximum sentence for a class B felony in Washington was ten years, Washington law provided a sentencing range of 49 to 53 months for the specific facts to which Blakely had pled guilty, but also allowed judges who found that an offender in a domestic violence case committed the crime with deliberate cruelty to enhance the offender’s sentence beyond the general statutory range.50 The judge found by a preponderance of the evidence that the offender committed the act with “deliberate cruelty,” and based upon this finding sentenced the offender to 90 months in prison.51 The Supreme Court held that the judge’s sentence violated the offender’s Sixth Amendment right to a trial by jury.52 The Court determined that the relevant statutory maximum in this case for Apprendi purposes was not the ten-year maximum sentence for class B felonies, but the 53-month maximum for the offender’s crime.53 The Court held that the statutory maximum for purposes of the Sixth Amendment, is “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitcould or must? 166 national lawyers guild review ted by the offender.”54 Since the maximum possible sentence the judge could impose on that offender without making any additional findings of fact was 53 months, that was the relevant statutory maximum, and any finding that increased the offender’s sentence above 53 months must be found beyond a reasonable doubt by the jury.55 In two subsequent cases, the Court applied Apprendi and Blakely to strike down other sentencing systems in which judges found facts that increased the maximum sentence an offender could receive for his crime.56 In United States v. Booker, the Court struck down the federal sentencing guidelines, which imposed a binding judicial sentencing range based upon judicial fact-finding that was constitutionally indistinguishable from the Washington system struck down in Blakely. 57 Similarly, in Cunningham v. California, the Court held that California’s Determinate Sentencing law (DSL), which allowed a judge to increase an offender’s sentence above the sentence authorized by the jury’s verdict based upon a judicial finding of “aggravating factors,” also violated the offender’s Sixth Amendment rights.58 All of these cases involved binding judicial sentencing systems.59 The Court repeatedly stated, on the other hand, that a discretionary sentencing system does not violate the Sixth Amendment, as judges historically have had broad discretion to sentence an offender within the range proscribed by statute.60 Furthermore, none of these cases addressed the issue of parole availability.61 Thus, it still remains to be seen what effect, if any, the availability of parole has on an offender’s Sixth Amendment rights under Apprendi. Justice Scalia’s dicta While none of these decisions have addressed the issue of parole eligibility, individual Justices have given us glimpses of their views on this issue.62 Particularly, Justice Scalia has made statements, all dicta, 63 in his concurring opinion in Apprendi and the majority opinion in Blakely that would seem to argue against applying Apprendi to an indeterminate sentencing system. Nevertheless, following Blakely, several lower courts followed Justice Scalia’s lead in determining the constitutionality of judicial sentencing in an indeterminate sentencing system. In his concurrence in Apprendi, Justice Scalia indicated that he believes that the Sixth Amendment does not apply to the lesser sentence in indeterminate sentencing systems.64 In response to Justice Breyer’s assertions that a system in which a judge finds facts that affect an offender’s sentence is the only fair way to determine sentences, Justice Scalia argued: I think it not unfair to tell a prospective felon that if he commits his contemplated crime he is exposing himself to a prison sentence of 30 years—and that if, upon conviction, he gets anything less than that he may thank the mercy of a tenderhearted judge (just as he may thank the mercy of a tenderhearted parole commission if he is let out inordinately early, or the mercy of a tenderhearted 167 governor if his sentence is commuted). . . . [T]he criminal will never get more punishment than he bargained for when he did the crime, and his guilt of the crime (and hence the length of the sentence to which he is exposed) will be determined beyond a reasonable doubt by the unanimous vote of 12 of his fellow citizens.65 This is strikingly similar to the language Justice Scalia used two years later in his majority opinion in Blakely. 66 In response to Justice O’Connor’s dissent, Justice Scalia explained why an indeterminate sentencing system does not implicate the Sixth Amendment: Of course indeterminate schemes involve judicial fact-finding, in that a judge (like a parole board) may implicitly rule on those facts he deems important to the exercise of his sentencing discretion. But the facts do not pertain to whether the offender has a legal right to a lesser sentence—and that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned. In a system that says the judge may punish burglary with 10 to 40 years, every burglar knows he is risking 40 years in prison. In a system that punishes burglary with a 10–year sentence, with another 30 added for use of a gun, the burglar who enters a home unarmed is entitled to no more than a 10–year sentence—and by reason of the Sixth Amendment the facts bearing upon that entitlement must be found by a jury.67 This language was clearly dictum, as the Court did not base its opinion upon whether the Washington sentencing system was determinate or indeterminate.68 Nevertheless, it provides persuasive authority for the Court’s view on the subject. Justice Scalia’s dicta provide two main arguments against applying Apprendi to the sentence an offender must serve before being considered for parole in an indeterminate sentencing system. First, he argues that an offender has no legal right to a sentence less than the maximum sentence authorized by the jury, and therefore the Sixth Amendment does not apply to fact-finding that results in a sentence that is less than or equal to that maximum.69 This position was supported by the Court’s holding in Harris, overruled by Alleyne, that a judge may find facts that increase the mandatory minimum sentence a judge can impose on an offender.70 If an offender has no Sixth Amendment right to a sentence below the maximum sentence authorized by a jury’s verdict, then presumably fact-finding that increases the minimum sentence, i.e., the amount of time the offender must serve, would not be subject to Apprendi because the jury’s sentence authorizes any sentence up to the maximum the offender could serve for that crime. Secondly, Justice Scalia argues that in an indeterminate system an offender has no enforceable expectation of receiving a sentence below the statutory maximum for that crime, since he knows, at least in the realm of constitutional jurisprudence, that he is risking a sentence up to the statutory maximum.71 Therefore, so the argument goes, since “the criminal will never get more could or must? 168 national lawyers guild review punishment than he bargained for when he did the crime,” the Sixth Amendment does not apply.72 The Michigan Supreme Court relied heavily on Justice Scalia’s arguments when it rejected a constitutional challenge to Michigan’s indeterminate sentencing system after Blakely. 73 However, any persuasive authority that Justice Scalia’s arguments concerning application of Apprendi to an indeterminate system might have had has been undermined by the Court’s 2013 decision in Alleyne. 74 Courts will need to reconsider Apprendi’s application to indeterminate sentencing systems post-Alleyne. Challenges to Michigan’s sentencing system pre-Alleyne Michigan has an indeterminate sentencing system, meaning that prisoners are eligible for early release on parole prior to serving their full sentence, in which the judge has discretion, within a binding sentencing range, to impose the sentence that an offender must serve before being considered for parole.75 Thus, an offender in Michigan receives two sentences, one for the length of time he must serve before being considered for parole, and one for the maximum amount of time he could serve if parole is not granted.76 The sentencing judge has no discretion in determining the amount of time a prisoner could serve, as that sentence is fixed by statute based upon the felony class of the conviction.77 However, a sentencing judge does have discretion, within a particular guideline range, to choose the sentence a prisoner must serve before he will be considered for parole.78 The binding sentencing range within which the judge must impose a sentence is determined by judicial fact-finding.79 The Michigan Supreme Court held in People v. Drohan that Apprendi does not apply to the maximum sentence a judge can impose that an offender must serve before being considered for parole.80 The Michigan Supreme Court based its decision primarily upon the assumption that the Sixth Amendment only protects an offender’s right to a sentence within the range authorized by the jury’s verdict.81 Therefore, the Michigan Supreme Court concluded that the Sixth Amendment does not protect an offender’s sentence that he must serve before being considered for parole because the jury’s verdict authorizes a sentence up to the statutory maximum that the offender could serve.82 Michigan’s indeterminate binding sentencing system In order to determine the range of possible sentences within which an offender must serve in prison, the court assigns the offender a Prior Record Variable (PRV) score, and an Offense Variable (OV) score.83 The judge calculates an offender’s PRV score by examining the nature and number of the offender’s prior convictions and comparing them to the requirements of multiple PRVs.84 In order to determine an offender’s OV score, a judge must find, by a preponderance of the evidence,85 that the offender committed his crime in a particular way or that the crime caused a particular result.86 For example, a judge determines an offender’s OV 1 score based upon what kind of weapon 169 the offender used when committing the crime and how he used it.87 If the judge finds that “[a] weapon was displayed or implied” during the commission of the felony, he scores the offender five points.88 However, if the judge finds that “[a] firearm was discharged at or toward a human being or a victim was cut or stabbed with a knife or other cutting or stabbing weapon,” he scores the offender 25 points.89 Other OVs that judges find to determine an offender’s OV score include whether the offense caused psychological injury to a member of the victim’s family (OV 5),90 the number of victims to the crime (OV 9),91 and whether or not “the offender was a leader in a multiple offender situation” (OV 14).92 Once the court has scored all the individual PRVs and OVs, those individual scores are added to make one total PRV score and one total OV score, which the court then applies to the sentencing grid that correlates with the grade of felony for the crime.93 The court then locates the offender’s PRV score on the horizontal axis of the grid, and his OV score on the vertical axis.94 At the intersection of the offender’s OV and PRV score is the sentencing range within which the court must sentence the offender.95 For example, for a class A felony, a judge must sentence an offender with a PRV score of 30 and an OV score of 25 to a mandatory term of imprisonment between 81 and 135 months.96 The longest amount of time the judge can sentence an offender that he must serve in prison, in this example 135 months, is sometimes referred to as the offender’s “maximum-minimum” sentence.97 Because the United States Supreme Court has held that the fact of an offender’s prior convictions need not be found by a jury beyond a reasonable doubt, judicial fact-finding concerning an offender’s PRV score does not implicate Apprendi. 98 However, Michigan’s OV scoring system is similar to Washington’s sentencing system that was struck down in Blakely. The only constitutionally significant difference between the two sentencing systems is that the Michigan sentencing system is indeterminate.99 Thus, considering the similarities, Michigan’s sentencing system was ripe for a legal challenge in the years following Blakely. The challenge to Michigan’s indeterminate sentencing system after Blakely The Michigan Supreme Court addressed the constitutionality of Michigan’s sentencing system after Blakely in the 2006 case People v. Drohan. 100 In Drohan, the offender was convicted of third-degree criminal sexual conduct (CSC) and two counts of fourth degree sexual conduct.101 During sentencing, the judge scored the offender ten points for OV 4 (psychological injury to a victim) and 15 points for OV 10 (exploitation of a vulnerable victim).102 This judicial fact-finding increased the offender’s mandatory minimum sentencing range from 36 to 90 months in prison,103 to 51 to 127 months in prison.104 The judge ultimately sentenced the offender to a mandatory sentence of 127 months in prison, with 360 months serving as the fixed statutory maximum could or must? 170 national lawyers guild review sentence.105 The offender challenged the sentence, arguing that the judicial factfinding that increased the maximum sentence that the judge could impose that he must serve before being considered for parole (his “maximum-minimum” sentence) violated his Sixth Amendment rights.106 The Michigan Supreme Court held that, because Michigan’s sentencing system was an indeterminate system, judicial fact-finding that increased an offender’s “maximum-minimum” sentence was not unconstitutional under Blakely. 107 The Court, echoing the “reasonable expectation” argument raised by Justice Scalia in Apprendi and Blakely, 108 argued that because the offender knew, when he committed his crime, that he could face up to 30 years in prison, the Sixth Amendment does not entitle him to a jury determination of his “maximum-minimum.”109 The Court also argued that a jury need not find facts that determine the offender’s “maximum-minimum” sentence because an offender may not be released immediately after serving his mandatory sentence.110 After an offender serves his mandatory sentence, the parole board has the discretion to keep him in prison until he has served the entire statutory maximum.111 Since the offender is not entitled to release at any point prior to serving the full statutory maximum, a jury finding is not required to increase the sentence at which the offender is eligible for parole.112 Finally, the Court reasoned that, unlike the sentences overturned in the Apprendi line of cases, the “maximum-minimum” sentence imposed in the Michigan sentencing system “will always fall within the range authorized by the jury’s verdict.”113 Since a conviction authorizes a sentence up to the fixed statutory maximum, any sentence below that is “derived from the jury’s verdict,”114 and the Sixth Amendment does not entitle an offender to a sentence below that statutory maximum.115 Therefore, judges have the discretion to sentence an offender anywhere below that set statutory maximum for the offender’s crime.116 While stated a number of different ways, the Michigan Supreme Court’s opinion was based upon one main assumption, that the Sixth Amendment only protects an offender from an increase in the amount of time he could serve in prison. Since a Michigan offender could always serve the full statutory maximum, imposition of a lesser sentence for the time he must serve is not protected by the Sixth Amendment. The Court drew support for this conclusion from Justice Scalia’s concurring opinion in Apprendi and dictum in Blakely. 117 Two statutory maximums? It is helpful to compare Michigan’s indeterminate system with the Washington determinate system that was invalidated in Blakely. Both constitute a binding judicial sentencing system, i.e., one in which the range of sentences that a judge may impose can be increased through judicial fact-finding.118 The 171 only relevant difference between the two sentencing systems is that one is determinate and the other is indeterminate.119 The United States Supreme Court has repeatedly held that a judge in a binding judicial sentencing system may not increase the statutory maximum based upon judicial fact-finding.120 The first issue we must confront is what constitutes a statutory maximum in an indeterminate system. In a determinate sentencing system, like the one in Blakely, there is only one statutory maximum for Apprendi purposes: “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the offender.”121 In an indeterminate system, by contrast, there are two statutory maximums for Apprendi purposes: the amount of time the offender must serve in prison and the amount of time the offender could serve in prison if not released on parole.122 Once we determine that there are two statutory maximums in an indeterminate system, the next issue is whether both statutory maximums are subject to Apprendi. If Apprendi applies to the maximum sentence a judge can impose that an offender must serve, Michigan’s sentencing system violates the Sixth Amendment because judicial fact finding increases the maximum sentence the judge may impose on the offender.123 However, if Apprendi applies only to the maximum amount of time an offender could serve if not released on parole, then Michigan’s sentencing system would not violate the Sixth Amendment because that maximum is fixed by statute and may not be increased by judicial fact-finding.124 The Michigan Supreme Court in Drohan concluded that the maximum amount of time an offender could spend in prison was the only statutory maximum protected by Apprendi.125 However, it is not clear why this should be the case. In Blakely, the Court determined that the sentencing range for the particular offender was the statutory maximum under Apprendi, not the maximum the judge could impose for that crime under statute.126 Of the three main reasons provided by the Michigan Supreme Court for its conclusion, only one of them logically flows from Supreme Court precedent from the Apprendi line of cases. First, the Michigan Supreme Court posited that, because an offender who commits a crime can “expect” to receive a sentence as high as the maximum sentence he or she could serve under statute, the Sixth Amendment does not apply to his or her “maximum-minimum.”127 This argument, as noted above, echoes Justice Scalia’s concurring opinion in Apprendi and dictum in Blakely. 128 However, Apprendi and its progeny have never indicated that a prisoner’s “reasonable expectations” were relevant to the application of the Sixth Amendment.129 In addition, even if an offender’s expectation were a relevant consideration in determining an offender’s Sixth Amendment rights, the Michigan Supreme could or must? 172 national lawyers guild review Court’s “expectation” argument ignores an offender’s equally reasonable expectation in the possibility of parole. Just like the offender in Apprendi, who could expect that he would serve the statutory maximum for his crime if convicted by a jury, but not additional time that the judge, rather than jury, found was called for, an offender in the Michigan system should expect that he could spend up to the fixed statutory maximum in prison, but not that he must serve additional time before being considered for parole based upon judicial fact-finding.130 The Michigan Supreme Court’s “expectation” argument presumes what it purports to prove. Furthermore, the Michigan Supreme Court contended that because an offender has no guarantee that he will be released before he serves the fixed statutory maximum for that crime, the judicial determination of the amount of time the offender must serve in prison is not subject to Apprendi. 131 This is a variation on Justice Scalia’s “expectations” argument: since a prisoner has no right to parole at any point, he cannot expect to be given less than the maximum. As a result, the minimum sentence that he must serve may not ultimately affect the total time he actually spends in prison; therefore, so the argument goes, a judge may increase the lower end of that range based on factual findings that the jury never made.132 However, this argument is contrary to the Court’s Apprendi jurisprudence, as increasing the range of sentences an offender is subject to in a determinate system does not “guarantee” that he will receive a greater sentence either.133 For example, when the range of sentences that a judge may impose on an offender is increased from five to ten years to five to fifteen years, the judge is not obligated to sentence the offender to a term of imprisonment longer than the original maximum; he could still impose a sentence that is ten years or less. Even so, the Court would still find that this increase violated the offender’s Sixth Amendment rights.134 Similarly, while increasing the time an offender must spend in prison does not “guarantee” that an offender will spend more time in prison than he would have without the increase, doing so still increases the maximum sentence that a judge could impose on an offender.135 The Michigan Supreme Court’s argument does not give us any legitimate basis to differentiate a determinate from an indeterminate system for Alleyne purposes. The Michigan Supreme Court’s final argument, however, did provide an adequate justification, at least prior to Alleyne, as to why an offender’s “maximum-minimum” should not be subject to Apprendi. According to that Court a jury’s verdict authorizes any sentence for the offender up to the fixed statutory maximum.136 Therefore, any sentence below that fixed maximum is derived from the jury’s verdict.137 The Court cited Justice Scalia’s dicta in Apprendi and Blakely to support its argument;138 it could have also cited Harris as support for that position.139 173 If the Sixth Amendment only ensures that the sentence an offender receives is within the range authorized by the jury’s verdict, then Drohan was correctly decided. And, given the United States Supreme Court’s plurality opinion in Harris, the Michigan Supreme Court’s decision in Drohan was on solid legal ground prior to Alleyne. Alleyne v. United States and People v. Lockridge However, the United States Supreme Court’s opinion in Alleyne, overruling Harris and extending the protections from Apprendi to statutory minimum sentences, has changed all that, rendering unconstitutional any system that allows an offender’s mandatory minimum sentence to be increased based on facts that the jury has not found beyond a reasonable doubt.140 Furthermore, the Court’s reasoning in Alleyne effectively wiped away any foundation to differentiate the statutory maximum the offender must serve from the statutory maximum the offender could serve.141 As such, the reasoning of the Michigan Supreme Court’s opinion in Drohan is no longer persuasive, and judicial factfinding that increases either the minimum or maximum sentence a judge can impose that an offender must serve in prison is unconstitutional. The Court’s change of position in Alleyne was brought about by Justice Breyer’s decision to join four other justices in overruling Harris v. United States.142 In Harris, the Court had held that a finding that increased the minimum sentence that a judge could impose on an offender need not be found by a jury beyond a reasonable doubt.143 The majority in Alleyne concluded that Harris was contrary to the Court’s holding in Apprendi and held that “the principle applied in Apprendi applies with equal force to facts increasing the mandatory minimum.”144 The Court, citing to Justice Breyer’s concurrence in Harris, stated, “It is impossible to dissociate the floor of a sentencing range from the penalty affixed to the crime.”145 Similar to increasing the statutory maximum, increasing the prescribed floor for a sentence “aggravate[s] the punishment,”146 because it narrows the offender’s sentencing range and “‘require[s] the judge to impose a higher punishment than he might wish.’”147 It is irrelevant that a judge could still impose a sentence above the new statutory minimum without the additional finding,148 because raising the mandatory minimum “alters the legally prescribed punishment so as to aggravate it.”149 Thus, the Court overruled Harris and held that any fact that increased the maximum or minimum possible sentence that a judge may impose must be found by a jury beyond a reasonable doubt.150 Justice Breyer, despite his continued disagreement with the Court’s holding in Apprendi, agreed that 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.”151 Acknowledging that Apprendi has becould or must? 174 national lawyers guild review come well established in the Court’s jurisprudence, Justice Breyer concluded that the inconsistency between Harris and Apprendi should be resolved in Apprendi’s favor.152 In 2014, the Michigan Supreme Court granted leave to appeal in People v. Lockridge to consider a challenge to Michigan’s indeterminate sentencing system after Alleyne.153 The Michigan Supreme Court ultimately held that Michigan’s sentencing system violates the Sixth Amendment as interpreted in Alleyne to the extent that judicial fact-finding increases the minimum sentence that an offender must serve in prison before being considered for parole that a judge must impose.154 It is irrelevant that the increased sentence in the Michigan scheme, unlike the other schemes rendered invalid in the Apprendi line, only delays parole availability because it still aggravates the legally prescribed minimum sentence that the offender must serve.155 However, the Michigan Supreme Court did not directly address its prior holding in Drohan that judicial fact-finding that increases the maximum sentence that a judge can impose that an offender must serve in prison is not subject to Apprendi, limiting its holding to an offender’s “mandatory minimum” sentence.156 We address that issue in Section V below. In Lockridge, the Michigan Supreme Court held that allowing a judge to increase the minimum sentence that a prisoner must serve in order to be considered for parole under Michigan’s indeterminate sentencing system based on factual findings that the jury had not made violated the Sixth Amendment under Alleyne. 157 The Court ultimately concluded that the fact that Michigan’s sentencing system was “indeterminate” was irrelevant because Michigan’s sentencing system, like the sentencing system in Alleyne, used judicial factfinding to alter the “minimum” sentence that a judge could impose on an offender.158 Thus, Michigan’s sentencing system violated the Sixth Amendment to the extent that this “mandatory minimum” sentence was increased. The State of Michigan argued, as others had before it, that because judicial fact-finding was used only to determine parole availability, to which an offender has no constitutional right, an offender’s rights are not violated when that sentence is increased.159 The Court responded that the constitutional violation identified in Alleyne is completely separate from the issue of parole eligibility.160 The Sixth Amendment right to a jury trial is triggered during sentencing, and forbids judicial fact-finding that “increases the prescribed range of penalties, including both the minimum and the maximum sentences,” because increasing that prescribed range establishes a “distinct and aggravated crime.”161 Once judicial fact-finding aggravates the “range” of permissible sentences, an offender’s Sixth Amendment right is violated, regardless of the sentence an offender actually receives.162 Thus, since the violation of an offender’s Sixth Amendment right is complete once judicial fact-finding aggravates the minimum or maximum sentence that serves as the 175 legally prescribed range for the crime, the offender’s Sixth Amendment right has been violated, and it is irrelevant whether that legally prescribed range involves parole availability or not.163 While the Court held that judicial fact-finding that increased the minimum sentence that an offender must serve before being considered for parole violated the Sixth Amendment, the Court did not address whether it’s prior holding in Drohan, that increasing the maximum sentence that a judge can impose that an offender must serve before being considered for parole, was still correct after Alleyne. 164 Rather, once that Court held that increasing the minimum sentence violated the Sixth Amendment, it determined that the proper remedy was to make Michigan’s sentencing guidelines advisory.165 As a result, the Court did not need to address the continuing validity of Drohan because a discretionary sentencing system poses no Sixth Amendment issue under Apprendi and its progeny.166 The Michigan Supreme Court was able to avoid dealing with its holding in Drohan because of its decision to render the Michigan sentencing guidelines advisory.167 Furthermore, the nature of “minimum sentences” in an indeterminate sentencing scheme provides a potential basis to distinguish Drohan from Lockridge. As argued above, there are two potential statutory maximums in an indeterminate sentencing system, the maximum sentence a judge can impose that he must serve, and the maximum sentence a judge can impose that he could serve.168 However, in an indeterminate system, like a determinate system, there is only one statutory minimum. The minimum sentence a judge can impose that an offender must serve and the minimum sentence a judge can impose that the offender could serve are identical in an indeterminate sentencing system. For example, in an indeterminate system, if the sentencing guidelines prescribe a range of 25 to 40 months in prison, the minimum sentence that a judge can impose that the offender must serve is 25 months, and the minimum sentence the offender could serve in prison is also 25 months. Thus, the offender’s minimum sentence, like that in a determinate system, is the sentence that the offender must serve in prison. Therefore, while the existence of two maximums in an indeterminate sentencing system arguably distinguishes it from a determinate system,169 that same distinction does not exist when we look at the statutory minimum. When a judge finds facts that increase the minimum sentence he can impose in an indeterminate system, he is increasing the amount of time an offender must serve in exactly that same way that a judge in a determinate sentencing system does when he increases an offender’s mandatory minimum.170 Therefore, if it is unconstitutional for a judge in a determinate system to increase the mandatory minimum sentence for offender based upon judicial fact finding, it is also unconstitutional for a judge to do so in an indeterminate sentencing system. could or must? 176 national lawyers guild review Thus, the Michigan Supreme Court correctly concluded, independently of the issue of the statutory maximum, that judicial fact-finding that increases the minimum sentence that an offender must serve in an indeterminate sentencing system is unconstitutional after Alleyne. The Court did not explicitly differentiate between statutory maximums and the statutory minimum in an indeterminate sentencing scheme in its holding, but rather presumed that Michigan’s sentencing system had only one statutory maximum and one statutory minimum.171 Because it is true that an indeterminate sentencing system has only one statutory minimum, i.e., that the minimum sentence that an offender must and could serve are the same, the Court reached the proper result. However, the fact that an indeterminate sentencing system has two potential statutory maximums leaves the issue in Drohan arguably distinguishable from Lockridge. This is because neither Lockridge nor Alleyne discussed what constitutes a maximum sentence for the purposes of Apprendi in an indeterminate sentencing system. Thus, the question still remains after Alleyne and Lockridge whether judicial fact-finding that increases the maximum sentence that a judge can impose that an offender must serve before being considered for parole in an indeterminate sentencing system is constitutional. Aggravating the legally prescribed punishment A proper reading of Alleyne invalidates judicial fact-finding that increases the minimum or maximum sentence a judge can impose on an offender that he must serve in an indeterminate sentencing system. Alleyne does not merely undermine the Michigan Supreme Court’s reasoning in People v. Drohan, it rejects it.172 Increasing an offender’s “maximum-minimum” in an indeterminate system implicates the Sixth Amendment in the same way that increasing the minimum sentence that a judge can impose does.173 Alleyne, in addition to extending Apprendi to raising the statutory minimum a judge can impose in a determinate sentencing system, altered the fundamental inquiry when determining an offender’s Sixth Amendment rights.174 Prior to Alleyne, the Court had held that only increasing the statutory maximum sentence a judge can impose implicated Apprendi. 175 A plurality of the Court reasoned that the Sixth Amendment ensured that an offender’s sentence would not be longer than the maximum sentence authorized by the jury’s verdict.176 As a result, the minimum sentence a judge could impose on an offender could be increased based upon judicial fact-finding because that sentence was still within the range authorized by the jury’s verdict.177 If the Sixth Amendment only protects an offender’s right to receive a sentence no longer than the maximum sentence authorized by the facts found by the jury, then the sentence that an offender must serve before being considered for parole in an indeterminate system would not be subject to the Sixth Amendment. This is true because any term of imprisonment the offender ultimately receives does not extend past the maximum sentence authorized by the jury.178 177 However, the Court in Alleyne rejected this narrow view of the Sixth Amendment.179 The Court held that it is irrelevant to the Sixth Amendment inquiry that increasing the statutory minimum sentence a judge can impose does not subject an offender to a sentence higher than that authorized by the jury’s verdict.180 Instead, the relevant inquiry is “whether a fact is an element of a crime,”181 and “[w]hen a finding of fact alters the legally prescribed punishment so as to aggravate it, the fact necessarily forms a constituent part of a new offense and must be submitted to the jury.”182 The proper inquiry under Alleyne when determining an offender’s Sixth Amendment rights is not whether the sentence is authorized by the jury’s verdict, but rather whether a finding of fact “alters the legally prescribed punishment so as to aggravate it.”183 Under this new framework, it is clear that increasing an offender’s “maximum-minimum” is unconstitutional. In the same way that increasing the “mandatory minimum” a judge may impose in a determine system “alters the legally prescribed punishment so as to aggravate it,”184 so does increasing the maximum sentence an offender must serve.185 Judicial fact-finding “produce[s] a higher range”186 of sentences that an offender must serve, thereby aggravating the punishment.187 It is irrelevant that increasing an offender’s “mandatory minimum” may not actually result in a longer sentence served, in the same way that it is irrelevant in a determinate system that an offender’s actual sentence received when the statutory minimum is increased may be the same sentence he would have received without the increase.188 All that matters is that the legally prescribed range for the crime is aggravated based upon judicial fact-finding.189 When the maximum sentence a judge can impose that an offender must serve in prison is increased, the legally prescribed range for the crime has increased and, therefore, any fact that does so must be found by the jury. Conclusion The United States Supreme Court should ultimately conclude that it is unconstitutional to increase the minimum or maximum sentence that a judge must impose on an offender that the offender must serve in prison before being considered for parole based upon judicial fact-finding. Such a holding is consistent with the Sixth Amendment and would allow the jury to perform its role as a check on government power by ensuring that the government cannot aggravate the legally proscribed punishment for an offender without the authorization of a jury of his peers.
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David Loudon is a graduate of Michigan State University College of Law. He is currently a term law clerk with Magistrate Judge Mark Dinsmore at the U.S. District Court, Southern District of Indiana. Special thanks to Brett DeGroff and Jessica Zimbelman from the Michigan State Appellate Defender Office for inspiring this article. Thanks also to Professor Barbara O’Brien for reviewing the article, and the National Lawyers Guild Review for all of their hard work editing it.
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NOTES 1. 530 U.S. 466 (2000). 2. The Sixth Amendment protections of Apprendi and its progeny are implicated only during sentencing of a defendant. This article uses the term “offender” to refer to any defendant who has pled guilty to a crime or who has been found guilty of a crime after a trial. could or must? 178 national lawyers guild review 3. See Blakely v. Washington, 542 U.S. 296, 301 (2004) (citing Apprendi v. New Jersey, 530 U.S. 466, 490); United States v. Booker, 543 U.S. 220, 244 (2005); Alleyne v. United States, 133 S.Ct. 2151, 2160 (2013). 4. 536 U.S. 545, 557-68 (2002). 5. Alleyne, 133 S.Ct. at 2161-62. 6. Nancy J. King, Alleyne on the Ground: Factfinding that limits Eligibility for Probation or Parole Release, 26 Fed. Sent’g Rep. 287, 289 (2014) (defining a determinate sentence as a sentence in which “defendants receive a single sentence and serve that sentence; they are not sentenced to a range within which they might or might not be released depending on decisions by paroling authorities at a later time”). Some determinate sentencing systems give prisoners the opportunity to get out of prison early by earning “good time credits.” James B. Jacobs, Sentencing by Prison Personnel: Good Time, 30 UCLAL. Rev. 217, 222-24 (1982) (defining the term “good time credits” and explaining how they work in different sentencing systems). While the Supreme Court has not directly addressed whether Apprendi applies to the awarding or revocation of “good time credits,” most courts and commentators have concluded that Apprendi does not apply. See e.g., Nicholas J. Xenakis, A Good Time with the Sixth Amendment: The Application of Apprendi to the Denial of Good Time Credit, 47 Crim. Law Bull. art. 3 (“There are several state courts and one federal court that have already addressed whether Apprendi applies to the denial of good time credit. None of them, however, have ruled that Apprendi does in fact apply”); King, supra note 6 (“Corrections officials’ decisions . . . delaying release eligibility by refusing to grant or revoking good time credit . . . fall[s] outside of the Apprendi principle”). However, at least one article has argued that “the due process and the Sixth Amendment guarantees as articulated in Apprendi v. New Jersey [should] apply to some factual determinations related to the denial of good time credit.” Xenakis, supra note 6. Because good time credits are generally awarded or revoked by correction officials, not judges, whether Apprendi should apply to good-time credits is outside the scope of this article. This article instead focuses on when Apprendi applies to judicial sentencing of an offender. 7. Gary L. Mason, Indeterminate Sentencing:Cruel and Unusual Punishment, or Just Plain Cruel?, 16 New Eng. J. on Crim. & Civ. Confinement 89, 89-90 (1990) (“Under an indeterminate sentencing system, the trial judge applies a minimum and a maximum sentence range to the convicted defendant’s prison term. Any time after the completion of the minimum term, the prisoner becomes eligible for parole; however, he must be released from prison upon the expiration of the maximum term”). This article will sometimes refer to this lower sentence in an indeterminate system as an offender’s “mandatory sentence.” This sentence is “mandatory” in the sense that an offender must serve that much time in prison before being released. Id. 8. Bradley R. Hall, Mandatory Sentencing Guidelines by Any Other Name: When “Indeterminate Structured Sentencing” Violates Blakely v. Washington, 57 Drake L. Rev. 643, 680-81 (2009) (noting that “the presence or absence of a parole mechanism has never been a determinative or even relevant factor in the constitutional equation” of an offender’s Sixth Amendment Rights in the Court’s Apprendi line of cases). 9. People v. Lockridge, No. 149073, 2015 WL 4562293, *1 (Mich. July 29, 2015), available at http://courts.mi.gov/Courts/MichiganSupremeCourt/Clerks/Recent%20Opinions/14-15-TermOpinions/149073-Opinion.pdf. 10. Id. at *1-2. 11. See infra Subsection IV.B.2. 12. See infra Subsection IV.B.2. 13. Since the Court decided that increasing the mandatory minimum in Michigan’s sentencing system violated the Sixth Amendment, and that the proper remedy was to make Michigan’s guidelines advisory, the Court did not need to decide whether increasing the maximum sentence a judge can impose that an offender must serve before being considered for parole also violated the Sixth Amendment. Lockridge, 2015 WL 4562293 at *28-29. 14. See infra Part V. 15. Alleyne, 133 S.Ct. at 2161-62. 16. W. David Ball, Heinous, Atrocious, and Cruel: Apprendi, Indeterminate Sentencing, and the Meaning of Punishment, 109 Colum. L. Rev. 893, 906 (2009) (defining the “commonly used (and commonly confused) sentencing terms ‘determinate’ and ‘indeterminate.’”); Jon Wool, 179 Beyond Blakely: Implications of the Booker Decision for State Sentencing Systems, 17 Fed. Sent’g Rep. 285, 286-87 (2005) (defining the sentencing terms and describing the confusion in the case law concerning the definitions of “determinate” and “indeterminate” sentences). 17. Ball, supra note 16. 18. Ball, supra note 16, at 906-07; Wool, supra note 16. There are also some instances in which a judge has absolutely no discretion and must sentence an offender to a specific term in prison. This is the case in Michigan for the maximum sentence that an offender could serve if not released early on parole. See MCL § 769.8(1). For that sentence, a judge has absolutely no discretion and must sentence the offender to the term of years enumerated by statute for that crime. Id.; People v. Drohan, 475 Mich. 140, 161 (2006) (an offender’s “maximum sentence is not determined by the trial court, but rather is set by law”). 19. Ball, supra note 16; Wool, supra note 16. 20. Ball, supra note 16, at 907 (noting that “the Supreme Court has often conflated [the two concepts], using “indeterminate” to mean “advisory” and “determinate” to mean “binding”); Wool, supra note 16, at 286 (noting that in Blakely, the Court used the phrase “indeterminate sentencing” to “refer[] to systems . . . where judges are free to sentence anywhere within the statutory limits”). 21. This is similar to the terminology employed by Professor W. David Ball in his article on this topic. See Ball, supra note 16, at 907. 22. Ball, supra note 16; Wool, supra note 16. Of course, a judge does not have the discretion to impose a sentence outside of the statutory range for the crime. Some sentencing systems permit a judge to impose a sentence outside of the statutory range in some circumstances. However, a judge does not have the complete discretion to do so, as “departure” is generally limited to unique circumstances, and is unavailable in most cases. 23. Ball, supra note 16, at 907; Wool, supra note 16. 24. When a sentencing range is shifted from one to five years to three to five years, a judge’s sentencing discretion is limited, as the minimum sentence he must impose on an offender is three years. On the other hand, when the sentencing range is shifted from one to five years to one to seven years, the judge has greater discretion to impose a sentence, as he may now impose a sentence up to seven years in jail. Regardless of whether a judge has more or less discretion, both increasing the floor and the ceiling of the judicial sentencing range “aggravate” an offender’s punishment because both alter the legally prescribed range of sentences a judge can impose to the detriment of the offender. See infra Section V. 25. Ball, supra note 16, at 907; Wool, supra note 16. Some binding sentencing systems allow a judge to depart from the guidelines in unique circumstances. However, the United States Supreme Court has held that the ability for a judge to depart from the guidelines if certain additional requirements are met does not immunize a sentencing system from scrutiny under Apprendi. See infra note 57. 26. Ball, supra note 16; Wool, supra note 16, at 286 27. King, supra note 6. 28. Mason, supra note 7. 29. This is similar terminology to that employed by Professor W. David Ball in his article on this topic. See Ball, supra note 16, at 906-07. 30. King, supra note 6. 31. King, supra note 6. Some determinate sentencing systems will grant prisoners early release if they earn “good time credits.” For a discussion on whether Apprendi applies to the awarding and revocation of “good time credits,” see supra note 6. 32. For example, in Michigan’s indeterminate sentencing system, a judge has no discretion to set the amount of time an offender could serve if he is not released early in parole. See e.g., MCL § 769.8(1); Drohan, 475 Mich. at 161 (an offender’s “maximum sentence is not determined by the trial court, but rather is set by law”). However, a Michigan judge does have the discretion, within a binding sentencing range, to impose the sentence an offender must serve before being considered for parole. See MCL § 769.8(1); MCL § 769.34(2)(b). 33. See supra note 32. could or must? 180 national lawyers guild review 34. Wool, supra note 16 (“It is critical to distinguish between these definitions because indeterminate systems under the Court’s definition— that is, systems that impose no constraint on a judge’s sentencing discretion—are not affected by the Blakely rule, whereas indeterminate systems under the second definition may well be.”). 35. See Blakely, 542 U.S. at 301 (citing Apprendi, 530 U.S. at 490); Booker, 543 U.S. at 244; Alleyne, 133 S.Ct. at 2160. 36. Hall, supra note 6; Wool, supra note 16, at 287. 37. Apprendi, 530 U.S. at 490. 38. Id. at 468-70 (citing N.J. Stat. Ann. § 2C:39-4(a) (West 1995); § 2C:43-6(a)(2)). 39. Id. at 470-71 (citing N.J. Stat. Ann. § 2C:44-3(e) (West Supp. 1999-2000)). 40. See id. at 491-97. 41. 536 U.S. 545 (2002). 42. Id. at 550 (citing 18 U.S.C. § 924(c)(1)(A)). 43. Id. at 550-51. 44. Id. at 568. 45. Id. at 557. 46. Id. at 565. 47. Id. at 557. The plurality also noted that Apprendi did not limit the judge’s ability to exercise his broad discretion to sentence an offender within the statutory range. Id. at 560. Since “the judge may impose the minimum, the maximum, or any other sentence within the range without seeking further authorization from” a jury, it makes no difference constitutionally that the state requires that judge to do sentence the offender to a lengthier sentence within that range. Id. at 565. Therefore, since increasing the minimum sentence to which a judge can sentence the offender does not “swell the penalty above what the law has provided for the acts charged,” it is distinguishable from increasing the maximum sentence a judge can impose and therefore does not violate the offender’s Sixth Amendment Rights. Id. at 562 (citing Bishop, Criminal Procedure § 85, at 54). 48. Id. at 569-72 (Breyer, J., concurring in part and concurring in the judgment). 49. Id. at 298-99. 50. Id. at 299. 51. Id. at 300. 52. Id. at 314. 53. Id. at 303-04. 54. Id. at 303 (emphasis in original). 55. Id. at 304-05. 56. See infra text accompanying notes 57-58. 57. 543 U.S. 220, 233 (“As the dissenting opinions in Blakely recognized, there is no distinction of constitutional significance between the Federal Sentencing Guidelines and the Washington procedures at issue in that case”). The federal sentencing system allowed a judge to depart from the binding sentencing range if he or she found “that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.” Id. at 234. The Court held that this did not immunize the federal sentencing guidelines from an Apprendi problem, explaining that: Importantly . . . departures are not available in every case, and in fact are unavailable in most. In most cases, as a matter of law, the Commission will have adequately taken all relevant factors into account, and no departure will be legally permissible. In those instances, the judge is bound to impose a sentence within the Guidelines range. It was for this reason that we rejected a similar argument in Blakely, holding that although the Washington statute allowed the judge to impose a sentence outside the sentencing range for “‘substantial and compelling reasons,’” that exception was not available for Blakely himself. Id. at 234 (citing Blakely, 542 U.S. at 299). 58. 549 U.S. 270, 277, 293 (2007). California’s sentencing system prescribed three possible terms of imprisonment for a crime, “a lower, middle, and upper term sentence.” Id. at 277. 181 The judge was forced by statute to sentence the offender to the middle term unless it found “circumstances in aggravation or mitigation” that justified the lower and upper sentence. Id. The Court held that for Apprendi purposes, the middle sentence constitutes the statutory maximum because the “aggravating circumstances [necessary to sentence an offender to the upper term] depend on facts found discretely and solely by the judge.” Id. at 288. Therefore, the Court held that allowing the judge to find an aggravating factor that was not part of the jury’s verdict or the offender’s plea to increase the offender’s sentence violated his Sixth Amendment rights. Id. at 288-89, 293. 59. See Hall, supra note 6, at 675 (concluding that the Court has held that any sentencing system that allows a judge to impose a harsher sentence based upon judicial fact-finding must be advisory). 60. See Booker, 543 U.S. at 233 (“We have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within the statutory range”) (citing Apprendi, 530 U.S. at 481). 61. Hall, supra note 6. 62. Apprendi, 530 U.S. at 498 (Scalia, J., concurring); Blakely, 542 U.S. at 309. 63. Justice Scalia’s arguments were not binding authority, as they constituted dictum in Blakely, and were part of a concurring opinion in Apprendi that was not joined by a majority of the Court. 64. Id. 65. Id. at 498 (emphasis in original). 66. Blakely, 542 U.S. at 309. 67. Id. 68. In fact, that Court never stated in its opinion whether Washington’s system was indeterminate or not. Id. 69. Apprendi, 530 U.S. at 498 (Scalia, J., concurring) (“I think it not unfair to tell a prospective felon that if he commits his contemplated crime he is exposing himself to a prison sentence of 30 years . . . the criminal will never get more punishment than he bargained for when he did the crime.”) (emphasis in original); Blakely, 542 U.S. at 309 (“Of course indeterminate schemes involve judicial factfinding, in that a judge (like a parole board) may implicitly rule on those facts he deems important to the exercise of his sentencing discretion. But the facts do not pertain to whether the offender has a legal right to a lesser sentence—and that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned.”) (emphasis in original). 70. See supra text and accompanying notes 45-47. 71. Apprendi, 530 U.S. at 498 (Scalia, J., concurring) (“[T]he criminal will never get more punishment than he bargained for when he did the crime.”); Blakely, 542 U.S. at 309 (“In a system that says the judge may punish burglary with 10 to 40 years, every burglar knows he is risking 40 years in prison.”). 72. Apprendi, 530 U.S. at 498 (Scalia, J., concurring) 73. See infra text and accompanying notes 107-10, 113-16, 127-30, 136-39. 74. See infra Section V. 75. Mich. Comp. Laws Ann. (hereinafter “MCL”) § 769.8(1); MCL § 769.34(2)(b); People v. Drohan, 475 Mich. 140, 161 (2006) (“[I]n all but a few cases, a sentence imposed in Michigan is an indeterminate sentence.”). 76. Mason, supra note 7. 77. MCL § 769.8(1); Drohan, 475 Mich. at 161 (an offender’s “maximum sentence is not determined by the trial court, but rather is set by law”). 78. MCL § 769.8(1); MCL § 769.34(2)(b). 79. Drohan, 475 Mich. at 142-43 (stating that Michigan’s sentencing system “allows a trial court to set an offender’s minimum sentence on the basis of factors determined by a preponderance of the evidence”). 80. 474 Mich. at 164. could or must? 182 national lawyers guild review 81. Apprendi, 530 U.S. at 498 (Scalia, J., concurring); Blakely, 542 U.S. at 309 (2004); Harris, 536 U.S. at 557-68 (2002). 82. Drohan, 475 Mich. at 162-63. 83. MCL § 777.21. 84. A judge determines an offender’s PRV 1 score based upon the number of “high severity” felony convictions he has on his record. If the offender has one prior “high severity” felony conviction, the court assesses him 25 points; if he has two prior “high severity” felony convictions, the court assesses him 50 points; and if he has three or more prior high severity felony convictions, the court assesses him 75 points. MCL § 777.51. Other Michigan PRVs that the court must score against an offender include: the number of prior low severity convictions (PRV 2), MCL § 777.52, the number of prior high severity adjudications (PRV 3), MCL § 777.53, and the number of prior misdemeanor convictions (PRV 5). MCL § 777.55. 85. Drohan, 475 Mich. at 142-43 (stating that Michigan’s sentencing system “allows a trial court to set an offender’s minimum sentence on the basis of factors determined by a preponderance of the evidence”). 86. MCL § 777.22. 87. MCL § 777.31. 88. MCL § 777.31(1)(e). 89. MCL § 777.31(1)(a). 90. MCL § 777.35. 91. MCL § 777.39. 92. MCL § 777.44. 93. MCL § 777.21(1)(c). 94. See e.g., MCL § 777.62 (the minimum sentencing grid for class A felonies). 95. Id. Both axes on the grid are subdivided into smaller categories. Id. For example, for a class A felony, an offender with 15 PRV points is placed in the C category of PRV scores, which is the category for any offender with a PRV score between 10 and 24 points. Id. Additionally, an offender with an OV score of 25 points is placed in category II, which is the category for any offender with an OV score between 20 and 39 points. Id. These subcategories determine where on the x-axis and y-axis an offender’s scores are, which ultimately determines his minimum sentencing range. Id. 96. MCL § 777.62; MCL § 769.34(2). “A court may depart from the appropriate sentence range established under the sentencing guidelines . . . if the court has a substantial and compelling reason for that departure and states on the record the reasons for departure.” MCL § 769.34(3). However, as the United States Supreme Court explained in Booker, the ability of a judge to depart from the guidelines does not immunize a sentencing system from an Apprendi challenge. See supra note 57. 97. See Drohan, 475 Mich. at 162, 163. 98. See Blakely, 542 U.S. at 301 (citing Apprendi, 530 U.S. at 490); Booker, 543 U.S. at 244. 99. See infra text accompanying notes 118-120. 100. Drohan, 475 Mich. at 142-43. The Michigan Supreme Court had briefly addressed the issue two years earlier in a footnote. See People v. Claypool, 470 Mich. 715, 730 n.14 (2004). However, this language was dictum, and therefore was not binding precedent. Drohan, 475 Mich. at 167 (2006) (Kelly, J., concurring in part and dissenting in part); Christopher M. Thompson, Redefining “Statutory Maximum”: The Demise of Michigan’s Presumptive Indeterminate Sentencing Guidelines at the Hands of Blakely v. Washington, 83 U. Det. Mercy L. Rev. 137, 150 (2006). 101. 475 Mich. at 144. 102. Id. at 145. 103. Id. at 167. 104. Id. at 145 n.3 105. Id. at 145. 106. Id. 183 107. Id. at 159-65 108. Apprendi, 530 U.S. at 498 (Scalia, J., concurring); Blakely, 542 U.S. at 309; see supra text accompanying notes 70-72. 109. Drohan, 475 Mich. at 163. 110. Id. 111. Id. 112. Id. at 163-64. 113. Id. at 162. 114. Id. at 162 (2006). 115. Id. at 163 (“In short, the Sixth Amendment ensures that an offender will not be incarcerated for a term longer than that authorized by the jury upon a finding of guilt beyond a reasonable doubt. However, the Sixth Amendment does not entitle an offender to a sentence below that statutory maximum”) (emphasis in original) (citing Apprendi, 530 U.S. at 498 (2000) (Scalia, J., concurring)). 116. Id. 117. See id. at 159-64. The Michigan Supreme Court relied heavily on Justice Scalia’s views on the Sixth Amendment, citing Justice Scalia’s concurrence in Apprendi twice and once to his dictum in Blakely. See id. In contrast, the Michigan Supreme Court cites to other United States Supreme Court decisions in its analysis section five times, twice in support of a quote from Justice Scalia’s concurrence in Apprendi, once simply citing the holding of Blakely, and two other times citing the history of the Sixth Amendment. Id. 118. Compare Blakely, 542 U.S. at 299-300, with MCL § 769.34(2)(b), and MCL § 777.21. 119. Compare Blakely, 542 U.S. at 298-300, with MCL § 769.8(1), and Drohan, 475 Mich. at 161. 120. See Blakely, 542 U.S. at 301 (citing Apprendi, 530 U.S. at 490); Booker, 543 U.S. at 244. 121. Blakely, 542 U.S. at 302 (emphasis in original). 122. Mason, supra note 7; Thompson, supra note 100. 123. Thompson, supra note 100. 124. Id. 125. Drohan, 475 Mich. at164 (2006); Thompson, supra note 100, at 151 (“The Michigan Supreme Court has adopted one possible, reasonable definition of the term: that a ‘statutory maximum’ is simply the period a defendant may serve”) (emphasis added). 126. Blakely, 542 U.S. at 303-04; Hall, supra note 7, at 685 (arguing that the Michigan Supreme Court’s definition of statutory maximum in Drohan “mirrors the argument that the Supreme Court rejected in Blakely”). 127. Drohan, 475 Mich. at 163. 128. Apprendi, 530 U.S. at 466, 498 (Scalia, J., concurring); Blakely, 542 U.S. at 309; see supra text accompanying notes 71-72. 129. In fact, this “expectation” argument, if applied broadly, could undo the entire line of Apprendi jurisprudence. Is it not true that when the offender in Apprendi committed his crime due to racial bias he did so knowing that he was risking 20 years in prison? After all, New Jersey statute clearly stated that an offender who committed an offense that was “motivated by racial bias” would receive a heightened sentence. Apprendi, 530 U.S. at 468-70 (citing N.J. Stat. Ann. § 2C:39-4(a) (West 1995); § 2C:43-6(a)(2)). Nevertheless, the Court held that the offender’s Sixth Amendment rights were violated because a fact that enhanced the maximum sentence that the judge could impose was not found by a jury. Id. at 491-97. Thus, the relevant issue under Apprendi is not whether an offender can “expect” to receive up to a particular sentence when he commits a crime, but rather whether a jury must find a fact that increases the maximum sentence that a judge can impose on an offender. 130. Drohan, 475 Mich. at 163. 131. Id. at 164. 132. Id. 133. Alleyne, 133 S.Ct. at 2162 & n.3 (“[I]f a judge were to find a fact that increased the statutory maximum sentence, such a finding would violate the Sixth Amendment, even if the defendant could or must? 184 national lawyers guild review ultimately received a sentence falling within the original sentencing range (i.e., the range applicable without that aggravating fact.”) (citing Apprendi, 530 U.S. at 474). 134. Id. 135. See King, supra note 6 (“That a paroling authority may ultimately decide not to release the defendant when he first becomes eligible is irrelevant. What is crucial is that the legislature has narrowed the penalty range available to the trial judge once the specified fact is determined”). 136. Drohan, 475 Mich. at 162-63. 137. Id. 138. Id. at 159, 163. 139. See id. at 159-64. In Harris, the United States Supreme Court held that a finding a fact that increases the minimum sentence a judge may impose on an offender does not need to be found by a jury. 536 U.S. at 568. The plurality opinion reasoned that increasing the mandatory minimum sentence a judge must impose does not “extend the offender’s sentence beyond that authorized by the jury’s verdict,” id. at 557, because the jury has “already found all the facts necessary to authorize the Government to impose” any sentence within the sentencing range. Id. at 565. This is also true in Michigan’s indeterminate sentencing system: once a jury finds an offender guilty, it has authorized a term of imprisonment up to the fixed statutory maximum. Drohan, 475 Mich. at 161-62. Thus, when the judge sets an offender’s “maximum-minimum,” he is not increasing the offender’s punishment beyond that authorized by the jury. 140. See generally Lockridge, 2015 WL 4562293. 141. Alleyne, 133 S.Ct. at 2161-63. 142. Compare Harris, 536 U.S. at 569-72 (Breyer, J., concurring in part and concurring in the judgment), with Alleyne, 133 S.Ct. at 2166 (Breyer, J., concurring in part and concurring in the judgment). 143. Harris, 536 U.S. at 550-51. 144. Alleyne, 133 S.Ct. at 2160. 145. Id. at 2160 (citing Harris, 536 U.S. at 569-72 (Breyer, J., concurring in part and concurring in the judgment)). 146. Id. at 2161 (emphasis removed). 147. Id. (quoting Apprendi, 530 U.S. at 522 (Thomas, J., concurring)). 148. Id. at 2161-62. 149. Id. at 2161. 150. Id., 133 S.Ct. at 2161. 151. Id. at 2167 (Breyer, J., concurring in part). 152. Id. 153. See People v. Lockridge, 496 Mich. 852 (2014) (granting leave to appeal to consider “whether a judge’s determination of the appropriate sentencing guidelines range, MCL 777.1, et seq., establishes a ‘mandatory minimum sentence,’ such that the facts used to score the offense variables must be admitted by the defendant or established beyond a reasonable doubt to the trier of fact”). 154. Lockridge, 2015 WL 4562293, *1 (the “deficiency [of Michigan’s sentencing system] is the extent to which the guidelines require judicial fact-finding . . . that mandatorily increase the floor of the guidelines minimum sentence range, i.e. the “mandatory minimum” sentence under Alleyne) (emphasis in original). 155. Id. at *22-23. 156. Since the Court decided that increasing the mandatory minimum in Michigan’s sentencing system violated the Sixth Amendment, and that the proper remedy was to make Michigan’s guidelines advisory, the Court did not need to decide whether Drohan was still good law after Alleyne. See id. at *28-29. 157. Id. at *1-2. 158. Id. at *21-23. 159. Lockridge, 2015 WL 4562293, *16, 21-23. When responding to the State’s argument, adopted by the dissent, that Alleyne does not apply to Michigan’s sentencing system, the majority 185 separated this argument into three separate sub-arguments, 1) that Alleyne does not apply because Michigan’s sentencing system is “indeterminate,” 2) that there is no constitutional right to parole eligibility, and 3) that Michigan’s minimum sentence is not a “mandatory minimum” as defined in Alleyne. Id. at *16. However, the essential premise of the second and third arguments is that Alleyne does not apply because Michigan’s sentencing system is indeterminate and judicial fact-finding in Michigan only affects parole eligibility. See id. at *17-26. For the sake of clarity and space, this article focuses on that core issue, rather than separately analyzing the majority’s response to each sub-argument. 160. Id. at *21 (“We have no quarrel with the general proposition that a defendant has no constitutional entitlement to be paroled . . . but we do not see its relevance here. The right at issue includes the Sixth Amendment right to a jury trial, not just the due-process right to be free deprivation of one’s liberty.”). 161. Id. at *22 (citing Alleyne, 133 S.Ct. at 2163). 162. Id. (citing Alleyne, 133 S.Ct. at 2163) (“The failure to have the jury find an element establishing “a distinct and aggravated crime,” not the resulting sentencing, is the constitutional deficiency.”) (internal citations omitted). 163. Lockridge, 2015 WL 4562293 at *22-23. 164. Since the Court decided that increasing the mandatory minimum in Michigan’s sentencing system violated the Sixth Amendment, and that the proper remedy was to make Michigan’s guidelines advisory, the Court did not need to decide whether Drohan was still good law after Alleyne. Id. at *28-29. 165. Id. at *28-29. 166. See Booker, 543 U.S. at 223 (“We have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within the statutory range.”) (citing Apprendi, 530 U.S. at 481). 167. Lockridge, 2015 WL 4562293 at *28-29. 168. See supra Section III.C. 169. See id. 170. King, supra note 6. 171. See e.g., Lockridge, 2015 WL 4562293 at *13 (“Alleyne now prohibits increasing the minimum as well as the maximum sentence in this manner) (emphasis in original); id. (stating that in Michigan, an offender’s “maximum [sentence] is set by statute and authorized by the jury’s verdict.) (emphasis in original); id. at *16 (“the Legislature may not require judicial fact-finding that results in a mandatory increase in either the minimum or maximum sentence beyond the range set by the jury verdict”) (emphasis in original); id. at *21 (“And [the Sixth Amendment] includes the right to have a ‘jury determination’ of all the pertinent facts used in increasing the prescribed range of penalties, including both the minimum and the maximum sentences.) (emphasis in original.) 172. See infra text accompanying notes 174-184. 173. See infra text accompanying notes 185-190. 174. See Alleyne, 133 S.Ct. at 2161-63 (rejecting the Court’s approach to the Sixth Amendment in Harris). 175. See Harris, 536 U.S. at 557-68. 176. Id. at 557, 565. 177. Id. at 557. 178. Drohan, 475 Mich. at 161-62. 179. Alleyne, 133 S.Ct. at 2161-62. 180. Id. 181. Id. at 2161. 182. Id. 183. Id. 184. Alleyne, 133 S.Ct. at 2158. could or must? 186 national lawyers guild review 185. King, supra note 6. 186. Alleyne, 133 S.Ct. at 2162-63. 187. King, supra note 6. 188. See Alleyne, 133 S.Ct. at 2162. 189. King, supra note 6 (“That a paroling authority may ultimately decide not to release the defendant when he first becomes eligible is irrelevant. What is crucial is that the legislature has narrowed the penalty range available to the trial judge once the specified fact is determined.”) 190. See e.g., United States v. Cotton, 535 U.S. 625, 626 (2002) (noting that the Sixth Amendment right to a jury “serves a vital function in providing for a body of citizens that acts as a check on prosecutorial power”); Randolph N. Jonakait, Confrontation Clause Curiosities: When Logic and Proportion Have Fallen Sloppy Dead, 20 J.L. & Pol’y 485, 492 (2012) (“The Sixth Amendment jury trial right acts as a check on . . . judges and prosecutors.”).