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Might the Harris limit on Apprendi be at risk with O'Brien cert grant?

By Douglas A. Berman

Professor Kevin Reitz sent me this tantalizing e-mail in response to te Supreme Court's cert grant today in O'Brien (basics here): U.S. v. O?Brien gives the Court the chance to reconsider Harris v. U.S., 536 U.S. 545 (2002), which held that the Apprendi rule doesn?t attach to factfinding at sentencing that triggers a mandatory minimum sentence without increasing the available maximum penalty.  It would certainly be big news if the Court were to overrule Harris.  The Solicitor General?s office doesn?t expect this to happen (otherwise they wouldn?t have filed for cert).  Counting votes, however, it?s hard to call.  Three dissenters in Harris remain on the Court: Stevens, Thomas, and Ginsburg.   Breyer?s concurring vote in Harris was wobbly ? the rationale was that he could not ?yet accept? the Apprendi rule...continue to full post

Full post as published by Sentencing Law and Policy on September 30, 2009 (boomark / email).