# Alleyne v. United States/Concurrence Sotomayor

Cite as: Alleyne v. United States, 570 U.S. 99, 118 (2013) (Sotomayor, J., concurring).
* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinions Sotomayor Breyer
* Dissenting Opinions Roberts Alito
* Wikipedia article
JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG and JUSTICE KAGAN join, concurring.
I join the opinion of the Court, which persuasively explains why Harris v. United States, 536 U.S. 545 (2002), and McMillan v. Pennsylvania, 477 U.S. 79 (1986), were wrongly decided. Under the reasoning of our decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), and the original meaning of the Sixth Amendment, facts that increase the statutory minimum sentence (no less than facts that increase the statutory maximum sentence) are elements of the offense that must be found by a jury and proved beyond a reasonable doubt. Ante, at 103.
Of course, under our doctrine of stare decisis, establishing that a decision was wrong does not, without more, justify overruling it. While stare decisis is not an "inexorable command," Hohn v. United States, 524 U.S. 236, 251 (1998) (internal quotation marks omitted), it is "a basic self-governing principle within the Judicial Branch, which is entrusted with the sensitive and difficult task of fashioning and preserving a jurisprudential system that is not based upon 'an arbitrary discretion,'" Patterson v. McLean Credit Union, 491 U.S. 164, 172 (1989) (quoting The Federalist, No. 78, p. 490 (H. Lodge ed. 1888) (A. Hamilton)). We generally adhere to our prior decisions, even if we question their soundness, because doing so "promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process." Payne v. Tennessee, 501 U.S. 808, 827 (1991). To protect these important values, we require a "'"special justification"'" when departing from precedent. Dickerson v. United States, 530 U.S. 428, 443 (2000).
[p119] A special justification is present here. As an initial matter, when procedural rules are at issue that do not govern primary conduct and do not implicate the reliance interests of private parties, the force of stare decisis is reduced. See United States v. Gaudin, 515 U.S. 506, 521 (1995); Payne, 501 U.S., at 828, 111 S.Ct. 2597. And any reliance interest that the Federal Government and state governments might have is particularly minimal here because prosecutors are perfectly able to "charge facts upon which a mandatory minimum sentence is based in the indictment and prove them to a jury." Harris, 536 U.S., at 581 (THOMAS, J., dissenting). Indeed, even with Harris in place, prosecutors already sometimes charge such facts and seek to prove them to a jury. See Brief for National Association of Criminal Defense Lawyers et al. as Amici Curiae 26. That is precisely what happened here, where the verdict form allowed the jury to find whether petitioner had brandished a firearm yet the jury declined to make such a finding. Ante, at 104.
In this context, stare decisis does not compel adherence to a decision whose "underpinnings" have been "eroded" by subsequent developments of constitutional law. Gaudin, 515 U.S., at 521. In rejecting a constitutional challenge to a state statute that increased a defendant's minimum sentence based on judicial factfinding, McMillan relied on a distinction between "elements" and "sentencing factors." 477 U.S., at 86, 106 S.Ct. 2411. That distinction was undermined by Apprendi, where we held that a legislature may not "remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed." 530 U.S., at 490 (internal quotation marks omitted).
In Harris, we squarely confronted the question whether "McMillan stands after Apprendi." 536 U.S., at 550. Five Members of the Court recognized that the cases were in fact incompatible. See id., at 569 (BREYER, J., concurring in part and concurring in judgment); id., at 572, 583 (THOMAS, J., dissenting) ("[O]nly a minority of the Court em- [p120] brac[es] the distinction between McMillan and Apprendi that forms the basis of today's holding"). In the controlling opinion, JUSTICE BREYER nevertheless declined to apply Apprendi to mandatory minimums because, though he found no way to distinguish sentencing floors from sentencing ceilings, he could not "yet accept" Apprendi itself. 536 U.S., at 569; see also post, at 122 (BREYER, J., concurring in part and concurring in judgment).
We have said that a decision may be "of questionable precedential value" when "a majority of the Court expressly disagreed with the rationale of [a] plurality." Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 66 (1996). And Harris has stood on especially weak ground because its vitality depended upon the possibility that the Court might retreat from Apprendi. See Harris, 536 U.S., at 569–570 (opinion of BREYER, J.). That has not happened. Instead, while individual Members of this Court have continued to question Apprendi, see post, at 122–123 (opinion of BREYER, J.); post, at 133–134 (ALITO, J., dissenting), its rule has become even more firmly rooted in the Court's Sixth Amendment jurisprudence in the decade since Harris. We have applied Apprendi to strike down mandatory sentencing systems at the state and federal levels. See Cunningham v. California, 549 U.S. 270 (2007); United States v. Booker, 543 U.S. 220 (2005); Blakely v. Washington, 542 U.S. 296 (2004). And just last Term, we recognized that Apprendi's reasoning extends to criminal fines. See Southern Union Co. v. United States, 567 U.S. 343 (2012).
As a result of these decisions, Harris has become even more of an outlier. For that reason, I agree that it is appropriate for the Court to "overrule Harris and to apply Apprendi's basic jury-determination rule to mandatory minimum sentences" in order to "erase th[is] anomaly" in our case law. Post, at 123 (opinion of BREYER, J.). I do not suggest that every single factor that supports the overruling of precedent is present here. Post, at 134–135, n. (ALITO, J., [p121] dissenting). But particularly in a case where the reliance interests are so minimal, and the reliance interests of private parties are nonexistent, stare decisis cannot excuse a refusal to bring "coherence and consistency," Patterson, 491 U.S., at 173, to our Sixth Amendment law.
If any doubt remained, our decision in Ring v. Arizona, 536 U.S. 584 (2002), should remove it. Ring considered an Apprendi challenge to Arizona's capital sentencing system. There, as here, the government urged us to adhere to a pre-Apprendi decision upholding that scheme. See Walton v. Arizona, 497 U.S. 639 (1990). And there, as here, we resisted that plea. Ring, 536 U.S., at 609. This case differs in only one respect: Our post-Apprendi consideration of the issue in Harris. But for the reasons given, Harris in no way strengthens the force of stare decisis in this case. With Apprendi now firmly rooted in our jurisprudence, the Court simply gives effect to what five Members of the Court recognized in Harris: "[McMillan] and Apprendi are irreconcilable; our Sixth Amendment jurisprudence cannot be home to both." 536 U.S., at 609.
JUSTICE ALITO is therefore mistaken when he suggests that the Court overrules Harris because "there are currently five Justices willing to vote to" do so. Post, at 135, n. No doubt, it would be illegitimate to overrule a precedent simply because the Court's current membership disagrees with it. But that is not a plausible account of the decision today. The Court overrules McMillan and Harris because the reasoning of those decisions has been thoroughly undermined by intervening decisions and because no significant reliance interests are at stake that might justify adhering to their result. Likewise, JUSTICE ALITO exaggerates when he suggests that this case creates an important "precedent about precedent." Post, at 134. Rarely will a claim for stare decisis be as weak as it is here, where a constitutional rule of criminal procedure is at issue that a majority of the Court has previously recognized is incompatible with our broader [p122] jurisprudence. And finally, JUSTICE ALITO's contention that Apprendi and Harris stand on equal footing for stare decisis purposes, post, at 133–134, 134–135, n., is simply inconsistent with our last decade of Sixth Amendment jurisprudence.
Because I believe that the Court's decision to apply Apprendi to mandatory minimums is consistent with stare decisis principles, I join the opinion of the Court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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