Release Date:  January 14, 2009
Contact:  Michael Rushford
(916) 446-0345

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Decision in Oregon v. Ice preserves consecutive sentences

In a 5-4 decision announced today, the United States Supreme Court rejected a child molester’s claim that previous high court decisions prohibited a judge from requiring him to serve his sentences on multiple felony counts consecutively.  The defendant in the case of Oregon v. Ice sought a decision announcing that a jury must decide the facts that authorize the judge to require that he serve his sentences consecutively, rather than concurrently. 

The California-based Criminal Justice Legal Foundation had filed a “friend of the court” brief in the case arguing that a ruling removing a trial judge’s authority to require consecutive sentences would extend the Court’s earlier sentencing holdings beyond their intended purpose, to the benefit of criminals convicted of multiple crimes.

There is no dispute that a state may leave the decision of consecutive or concurrent sentences entirely up to the judge, with no findings of fact required.  Oregon has limited consecutive sentencing to those cases where specific facts are found regarding the two crimes, such as harm to different victims or a different kind of harm to the same victim. Because Oregon has chosen to provide this additional protection to the defendant, Ice claimed that the Constitution further requires that the facts be found by the jury.

“All agree that a scheme making consecutive sentences the rule, and concurrent sentences the exception, encounters no Sixth Amendment shoal,” Justice Ruth Bader Ginsburg wrote for the Court.  “To hem in States by holding that they may not equally choose to make concurrent sentences the rule, and consecutive sentences the exception, would make scant sense.  Neither Apprendi nor our Sixth Amendment traditions compel straitjacketing the States in that manner.”

“In its earlier decisions, the Supreme Court held that the jury, not the judge, must find the facts that increase the maximum sentence for a particular crime.  This case is entirely different,” said the Foundation’s Legal Director Kent Scheidegger.  “The judge simply required this child molester to serve the sentence for each separate crime that the jury found he committed.”

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 that increase a sentence above the usual maximum for that crime.  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.  A year later, the state Court of Appeals upheld the sentence.

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 to 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 separate crimes.  The law provides a separate sentence for each of these crimes and the judge was well within his discretion to require him to serve four of these sentences consecutively.  “A criminal should not be entitled to a volume discount for committing multiple crimes,” said Scheidegger.  “Today’s decision is a step in that direction.”