Dividing 5-4, the Supreme Court ruled on Wednesday that it does not violate the Constitution for a judge to impose consecutive sentences based on facts that were not found by the jury, but by the judge. The Court thus refused to extend the line of its cases on the Sixth Amendment jury trial right to limit judges’ discretion to require that sentences be served separately rather than simultaneously. Thus, a string of decisions that began with Apprendi v. New Jersey in 2000 is limited to sentencing for single crimes, not to the arrangement for punishing multiple offenses.
“The jury-trial right,” the Court majority said in Oregon v. Ice (07-901),” is best honored through a principled rationale that applies the rule of the Apprendi cases within the central sphere of their concern…Our disposition today…is faithful to that aim.”
In a second 5-4 ruling, the Justices ruled that evidence of a crime does not have to be excluded from a case if police obtained it while relying on erroneous information supplied by another police officer. The so-called “exclusionary rule” does not apply to evidence that results from police mistakes, but only to situations involving “systemic error or reckless disregard of constitutional requirements,” the Court concluded. The decision came in Herring v. U.S. (07-513).
In the sentencing decision, Justice Ruth Bader Ginsburg said for the majority that both historic practice — juries traditionally have had no rule in deciding for or against consecutive sentences — and “respect for state sovereignty” suggest the need to confine the Apprendi rationale to “sentences for discrete crimes.” Apprendi and later cases require that any fact that would lead to a longer sentence must be found by the jury, not the judge, unless the accused admitted the fact or it was the fact of a prior conviction.
 On history, Ginsburg said, judges’ control of the arrangement for serving sentences for more than one crime “was so in England before the founding of our Nation, and in the early American States.”
On state sovereignty, Ginsburg wrote that states have a strong interest “in the development of their penal systems, and their historic dominion in this area…Beyond question, the authority of states over the administration of their criminal justice systems lies at the core of their sovereign status.”
Her opinion was joined by Justices Samuel A. Alito, Jr., Stephen G. Breyer, Anthony M. Kennedy and John Paul Stevens.
Justice Antonin Scalia, the Court’s most devoted champion of the Apprendi group of decisions, wrote for the dissenters; joining him were Chief Justice John G. Roberts, Jr., David H. Souter and Clarence Thomas. Scalia wrote that the Court’s justification for its ruling “is a virtual copy of the dissents” in the Apprendi group of cases. On the majority’s finding a difference between fact-finding for an enhanced sentence for one crime and for consecutive sentences for multiple-crimes, Scalia said: “I cannot understand why we would make such a strange exception to the treasured right of trial by jury.”
The case involved Thomas Eugene Ice, a manager of an apartment complex in Oregon. He was accused of assaulting an 11-year-old girl who lived in the complex. He was charged with twice entering that family’s apartment and sexually touching the girl when she was in her bedroom. He was charged with six crimes, and convicted on all six. Under Oregon law, sentences for multiple crimes are to be served together — concurrently — unless a judge finds that the crimes did not occur as part of the same course of conduct, and that, even if they did, the two crimes resulted in separate harms. In Ice’s case, the judge found that the charges of burglary and the sex crimes arose out of separate incidents. Ice was sentenced to a total of 340 months in prison, with three of the six individual sentences to run consecutively.
In the Court’s ruling limiting the reach of the “exclusionary rule” on criminal evidence, the Chief Justice’s opinion was supported by Justices Alito, Kennedy, Scalia and Thomas. Justice Ginsburg wrote a dissent, joined by Justices Breyer, Souter and Stevens, and Justice Breyer filed a dissent joined by Justice Souter.
The ruling cleared up an issue that the Supreme Court had left open in its 1995 decision in Arizona v. Evans. In that ruling, the Justices concluded that the exclusionary rule barring illegally obtained evidence does not require exclusion of evidence obtained in a search that was based upon erroneous information due to a court employee’s clerical error. The Court said it was not deciding then whether evidence would have to be excluded if police, not a court employee, were reponsible for the error.
That issue arose in the case of an Alabaman, Bennie Dean Herring, now serving a 27-month prison sentence for possessing illegal drugs and for having a gun as a felon. In his case, police had found the illegal drugs and the gun in Herring’s car after they had pursued him based on a report from police in a neighboring county — erroneous, as it turned out — that there was a warrant outstanding for Herring’s arrest. The officers learned of the error only after they had made the search and found the criminal evidence.
The Chief Justice’s opinion for the majority declared: “Our cases establish that suppression [of illegally seized evidence] is not an automatic consequence of a Fourth Amendment violation. Instead, the question turns on the culpability of the police and the potential of exclusion to deter wrongful police conduct. Here the error was the result of isolated negligence attenuated from the arrest. We hold that in these circumstances the jury should not be barred from considering all the evidence.”  The exclusionary rule, Roberts added, is not an individual right, and applies only where it results in “appreciable deterrence.”
The majority summed up the rationale of the ruling this way: “To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence. The error in this case does not rise to that level.”
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