Justice Alito’s dissent today in Alleyne v. United States relies on a 2004 essay by Professor Rory Little.
In Apprendi v. New Jersey (1996), the Supreme Court held that facts increasing a criminal defendant’s maximum possible sentence are elements of the criminal offense that must be proved to a jury beyond a reasonable doubt. But in 2002, the Court decided in Harris v. United States that Apprendi did not apply to facts that would increase a defendant’s mandatory minimum sentence. Today’s decision overrules Harris and holds that the Sixth Amendment requires a jury to find all facts that fix the penalty range of a crime.
In The Lost History of Apprendi and the Blakely Petition for Rehearing, Professor Little noted that Apprendi was based “on an erroneous historical understanding of the Framers’ views in 1790 when they wrote the 6th Amendment’s jury-trial guarantee.” Relying on this piece in his dissent today, Justice Alito suggests that if the Court is of a mind to reconsider existing precedent, it should reconsider Apprendi.