Release Date:  October 10, 2008
Contact:  Michael Rushford
(916) 446-0345

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Oral argument in Oregon v. Ice set for Tuesday, October 14

The United States Supreme Court will hear argument Tuesday in a case involving a child molester’s claim that earlier high court decisions prohibit a judge from sentencing him to a 28-year prison term.  At issue in the case of Oregon v. Ice is the trial judge’s decision to require the defendant to serve the sentences for separate crimes consecutively, rather than concurrently.

The Criminal Justice Legal Foundation has joined this case to encourage a decision upholding the judge’s authority to require consecutive sentences.

In 2000, a jury in Salem, Oregon, found Thomas Ice guilty of two counts of burglary and four counts of child molestation.  At the time the crimes were committed, Ice was an apartment manager.  A family living in one of the apartments included an 11-year-old girl, her mother, and younger brother.  On two occasions, Ice used his pass key to enter the apartment late at night and molest the little girl.

Following his conviction, the court held a hearing to determine the sentence.  During the hearing, the U. S. Supreme Court announced its decision in Apprendi v. New Jersey, which held that juries must determine any facts required to impose a sentence enhancement on top of the sentence provided by law for the offense.  Oregon law provides the sentencing judge with the discretion to require a defendant to serve his sentences for multiple offenses concurrently or consecutively depending upon the circumstances of the crimes.  Ice argued that the Apprendi decision required that a jury decide the required facts.  The judge rejected this argument and ordered Ice to serve consecutive sentences for four of the six offenses (two burglaries and two molestations).  A year later, the state Court of Appeal upheld the sentences.

In the 2004 case of Blakely v. Washington, the U. S. Supreme Court extended the Apprendi rule to cover sentencing guideline systems adopted by many states and the federal government.  When the system provides a range of sentences for the base offense but a higher range based on aggravating circumstances, the jury must determine those circumstances before the judge can exceed the base range.  In his appeal in the Oregon Supreme Court, Ice argued that the Blakely decision invalidated his sentence because the jury had not determined the facts required by Oregon law for the judge to order his sentences to be served consecutively.

The Oregon Supreme Court accepted this argument, ruling that consecutive sentencing by the judge violated the Apprendi and Blakely decisions because it exposed Ice to greater punishment than the jury’s guilty verdict.

When the U. S. Supreme Court announced that it would review the Oregon court’s decision the Foundation filed an amicus curiae (friend of the court) brief arguing that the Apprendi and Blakely decisions only apply to the sentence imposed for a single crime, not the decision of whether a defendant will serve multiple sentences consecutively or concurrently.  The jury in this case found Ice guilty of six crimes, four of which are clearly separate offenses.  The law provides a separate sentence for each of these crimes and the judge was well within his discretion to require him to serve them consecutively.  “A criminal should not be entitled to a volume discount for committing multiple crimes,” said CJLF Legal Director Kent Scheidegger.