As an assistant U.S. attorney, Anthony Barkow learned first-hand how prosecutors use their power, while his wife, Rachel, has researched the topic as an academic. Together, they founded the Center on the Administration of Criminal Law at the New York University School of Law in 2008 to promote good government practices.
Among the group’s tenets is the belief that jurors—and not judges—should find facts that trigger mandatory-minimum sentences. The Supreme Court will consider that topic on January 14, when it hears arguments in Alleyne v. U.S.
Although the landmark case Apprendi v. New Jersey requires juries to decide facts that could increase the maximum penalty that a criminal defendant may receive, an exception to that rule lets judges determine factors that could raise the minimum sentence. In an amicus brief on behalf of the NYU center, Anthony Barkow, who is now a partner at Jenner & Block, asserts that this judicial decision-making runs counter to sentencing-reform goals. He argues that key rulings since 2000′s Apprendi ruling show that the Court should close the loophole at issue in Alleyne.
Jenner & Block and the NYU center have collaborated on briefs in a series of cases that paved the way for the Court’s hearing of Alleyne.
The case involves a judge’s decision to increase the sentence of Allen Ryan Alleyne, whom a jury had found guilty of robbing a convenience store manager in Virginia. The jury also convicted Alleyne of using or possessing a firearm, an offense that carries a five-year sentence, but did not find that he brandished the weapon, which would have required a seven-year minimum. The judge, however, ruled by a preponderance of the evidence that Alleyne could have reasonably foreseen that his accomplice would brandish a gun, and imposed the higher sentence on Alleyne.
In December 2011, the U.S. Court of Appeals for the Fourth Circuit upheld Alleyne’s punishment, citing 2002′s Harris v. U.S. In that case, the high court found that neither the Sixth Amendment right to a jury trial nor Apprendi is violated when a judge rules on a factor that triggers a higher mandatory minimum.
Barkow argues that Harris is no longer good law. The Court was deeply divided in that case. Four justices found that letting judges increase the floor is logically consistent with Apprendi, but four found the rules incompatible. Justice Stephen Breyer gave the fifth vote to the former camp, but wrote a concurrence that supported the dissent. He stressed that he did not accept the Apprendi rule and maintained that extending it would hurt the Federal Sentencing Guidelines.
Barkow argues that the conditions upon which Breyer’s concurrence is premised are no longer valid. At oral arguments in a recent case, Breyer said he accepted that Apprendi has been the law “for some time.” In the 13 years since the decision, the Court has extended its rule and has made the sentencing guidelines discretionary.
“The hesitation that Justice Breyer had in Harris has lost its underpinnings,” Barkow said.
In addition to litigation, the Center on the Administration of Criminal Law conducts academic research and public-policy campaigns. It mainly focuses on promoting good practices related to prosecutors’ use of power and discretion.
Barkow started the center in 2008 after working as a federal prosecutor for 12 years. He left his post as executive director at the end of 2011 to join Jenner & Block’s white-collar defense division. “It was an incredibly rewarding time there, but, at heart, I’m more of a litigator,” he explained.
His wife, Rachel Barkow, remains the center’s faculty director and a professor at NYU. For more than a decade, she has been arguing that the then-mandatory federal sentencing guidelines as well as mandatory minimums are unconstitutional. Many of the organization’s projects stem from her research. “She had these ideas ahead of their time,” Barkow said.
He said Alleyne is so important to the center because the Harris loophole encourages the government to use mandatory minimums, which he wrote are “anathema to the goals of the sentencing reform movement.”
Mandatory minimums exacerbate racial disparities because black and Hispanic people are more likely to be convicted of offenses that require them than white people are, the brief states. They also give prosecutors leverage to encourage guilty pleas, and all but guarantee that defendants convicted under them will spend some time in jail despite mitigating circumstances or alternate punishment options, Barkow said.
“As a long-time prosecutor, I get why prosecutors like them,” Barkow said of mandatory minimums. “But, from a policy perspective, they’re universally condemned.”
Jamie Schuman is a freelance writer and third-year student at George Washington University Law School.