No. 99-478: Apprendi v. New Jersey




No. 99-478


In the Supreme Court of the United States

CHARLES C. APPRENDI, JR., PETITIONER

v.

STATE OF NEW JERSEY

ON WRIT OF CERTIORARI
TO THE SUPREME COURT OF NEW JERSEY

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENT

SETH P. WAXMAN
Solicitor General
Counsel of Record
JAMES K. ROBINSON
Assistant Attorney General
MICHAEL R. DREEBEN
Deputy Solicitor General
EDWARD C. DUMONT
Assistant to the Solicitor
General
NINA GOODMAN
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217



QUESTION PRESENTED

Whether a state statute may constitutionally increase the maximum authorizedpenalty for a crime on the basis of a finding made by the sentencing court,by a preponderance of the evidence, that in committing the crime the defendantacted "with a purpose to intimidate an individual or group of individualsbecause of race, color, gender, handicap, religion, sexual orientation orethnicity."



In the Supreme Court of the United States

No. 99-478

CHARLES C. APPRENDI, JR., PETITIONER
v.
STATE OF NEW JERSEY

ON WRIT OF CERTIORARI
TO THE SUPREME COURT OF NEW JERSEY

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENT

INTEREST OF THE UNITED STATES

This case presents the question whether a statutory sentencing factor mayconstitutionally increase the maximum authorized penalty for certain crimesbased on proof to a judge, by the preponderance of the evidence, of thedefendant's purpose to intimidate because of race. Because various federalcriminal laws authorize the imposition of enhanced sentences on the basisof facts found by the court at sentencing, see, e.g., 21 U.S.C. 841(b) (drugtype and quantity), the United States has a strong interest in the outcomeof this case.

STATEMENT

1. Early in the morning on December 22, 1994, petitioner fired eight rifleshots into the home of Michael and Mattie Fowlkes and their three children-theonly black family living in his neighborhood in Vineland, New Jersey. Pet.App. 2a-3a, 101a-102a, 107a. The shots shattered the glass in the Fowlkes'sfront french doors and caused other damage. Id. at 107a-109a. It was thefourth time the Fowlkes home had been hit by gunfire in the five monthsthey had lived there. Id. at 2a-3a.

After the December 22 shooting, a neighbor recognized petitioner's truckdriving away. Pet. App. 3a. When police officers arrested petitioner a shorttime later, he admitted that he had fired shots into the house. Ibid. Petitionerlater told the police that although he did not know the residents of thehouse personally, he "d[id] not want them in the neighborhood"because they were black, and was "just giving them a message that theywere in his neighborhood." Id. at 3a, 175a-180a. When officers executeda search warrant at petitioner's house they found a number of weapons, includinga .22-caliber rifle with a laser sight and silencer and an anti-personnelbomb. Id. at 3a.

2. A state grand jury charged petitioner with a number of offenses, rangingfrom harassment to attempted murder. Pet. App. 3a; J.A. 2-12. Petitioneragreed to plead guilty to one count of possession of a destructive device,in violation of N.J. Stat. Ann. § 2C:39-3(a) (West 1995), and two countsof possession of a firearm for an unlawful purpose, in violation of N.J.Stat. Ann. § 2C:39-4(a) (West 1995). Pet. App. 3a. Under the latterprovision, "[a]ny person who has in his possession any firearm witha purpose to use it unlawfully against the person or property of anotheris guilty of a crime of the second degree." N.J. Stat. Ann. §2C:39-4(a) (West 1995). New Jersey's general sentencing statute specifiesthat "[e]xcept as otherwise provided, a person who has been convictedof a crime may be sentenced to imprisonment, * * * [i]n the case of a crimeof the second degree, for a specific term of years which shall be fixedby the court and shall be between five years and 10 years." Id. §2C:43-6(a).

Petitioner's plea agreement recited that the ordinary maximum sentence foreach of the firearms counts was ten years' imprisonment, but that the Statereserved the right to seek a longer term on one count on the authority ofN.J. Stat. Ann. § 2C:44-3(e) (West Supp. 1999), which provides thata sentencing court

shall, upon application of the prosecuting attorney, sentence a person whohas been convicted of a crime * * * to an extended term if it finds, bya preponderance of the evidence, [that] * * * [t]he defendant in committingthe crime acted with a purpose to intimidate an individual or group of individualsbecause of race, color, gender, handicap, religion, sexual orientation orethnicity.

See Pet. App. 4a; Plea Agreement 1. Where Section 2C:44-3 authorizes theimposition of an "extended term," Section 2C:43-7 provides thatthe defendant shall be imprisoned "[i]n the case of a crime of thesecond degree, for a term which shall be fixed by the court between 10 and20 years." N.J. Stat. Ann. § 2C:43-7(a)(3) (West Supp. 1999).Petitioner, in turn, reserved the right to challenge the constitutionalityof Section 2C:44-3(e). Pet. App. 4a.

Before accepting petitioner's plea, the state court assured itself thatpetitioner personally understood that even without an "extended"sentence, he faced a maximum prison term of 20 years, with no possibilityof parole for the first 10 years (if his two firearms sentences were runconsecutively); and that if his challenge to the "extended sentence"provision was rejected, he faced a maximum total sentence of 30 years' imprisonment,with no parole eligibility during the first 15 years. J.A. 19-24.

At a hearing held before sentencing, petitioner testified that he had beendrinking and had taken medication on the night of the December shooting,and that he had fired at the Fowlkes's house after the glass and the colorof the door "caught [his] eye." Pet. App. 251a; see id. at 236a-239a.A defense psychologist also testified that petitioner had a history of psychologicaldisorders. Id. at 4a-5a, 213a-219a. At sentencing, the court rejected theseexplanations, found that the December shooting was motivated by racial bias,and held that petitioner was subject to an "extended" sentenceunder Section 2C:44-3(e). Pet. App. 5a, 141a-145a. The court accordinglysentenced petitioner to 12 years' imprisonment on the count related to theDecember shooting, and to concurrent terms of seven and three years' imprisonmenton the remaining charges. J.A. 45-46; Pet. App. 5a, 161a.

3. The Appellate Division of the New Jersey Superior Court affirmed petitioner'sconvictions and sentence, with one judge dissenting. Pet. App. 68a-94a.As relevant here, the court rejected petitioner's argument that the sentenceimposed on him under Section 2C:44-3(e) violated the federal Constitutionbecause it was based on the trial court's finding, by a preponderance ofthe evidence, of racial motivation, rather than on an admission obtainedas part of his guilty plea or on a finding made by a jury beyond a reasonabledoubt. Pet. App. 86a-94a. The court held that Section 2C:44-3(e) treatsracial bias as a sentencing factor, not as an element of any offense, Pet.App. 87a, and that such treatment of a traditional sentencing factor, suchas motive, is constitutional. Id. at 89a.

4. The Supreme Court of New Jersey affirmed. Pet. App. 1a-28a. The courtagreed with the Appellate Division that a defendant's racial motivationdid not become "an element of the weapons possession charge" byreason of Section 2C:44-3(e), and that the state legislature's reasons for"provid[ing] that the actor's biased purpose be treated as a sentencingfactor" were "not constitutionally suspect." Pet. App. 25a.Applying this Court's decisions in Almendarez-Torres v. United States, 523U.S. 224 (1998), and McMillan v. Pennsylvania, 477 U.S. 79, 89-90 (1986),the court concluded that Section 2C:44-3(e)

simply took one factor that has always been considered by sentencing courtsto bear on punishment and dictated the weight to be given that factor. Afinding of a biased motive or purpose to intimidate, like the factor ofrecidivism in the Almendarez-Torres analysis, is a very traditional sentencingfactor.
Pet. App. 22a.1 The court also observed that requiring juries to determinewhether crimes were motivated by bias would "create[] an added riskof prejudice for defendants" by "open[ing] trials to evidenceof former acts of bias" and "inject[ing] * * * issues of racialor ethnic bias that have a potential to inflame a jury." Id. at 24a.

Justices Stein and Handler dissented. Pet. App. 29a-66a. They reasoned thatthe finding of racial motivation required by Section 2C:44-3(e) "necessarilyinvolves a finding so integral to the charged offense," and so significantlyincreases the range of authorized sentences, "that it must be characterizedas an element" of the underlying offense with which the defendant ischarged. Pet. App. 30a. They concluded, accordingly, that Section 2C:44-3(e)is unconstitutional because it permits the finding of racial motivationto be made by the sentencing court by a preponderance of the evidence. Ibid.

SUMMARY OF ARGUMENT

A. The definition of the elements of a criminal offense is essentially entrustedto the legislature. There is no constitutional requirement that all mattersthat mitigate or aggravate a particular offense must be made elements ofa crime, to be proved to a jury beyond a reasonable doubt. Rather, havingdefined a crime, legislatures have a variety of options in structuring asystem of sentencing. Legislatures may fix the penalty themselves; theymay define broad ranges for sentencing courts; or they may constrain thediscretion of sentencing courts within those ranges, either through bindingsentencing guidelines or through other directives. They may also requirejudges to sentence based on the fullest possible information about the offenseand offender, generally finding relevant facts by a preponderance of theevidence.

B. In light of those principles, the proposed constitutional rule suggestedin Jones v. United States, 526 U.S. 227, 243 n.6 (1999)-that "any fact(other than prior conviction) that increases the maximum penalty for a crimemust be charged in an indictment, submitted to a jury, and proven beyonda reasonable doubt"-should be rejected. Such a rule would not be deeplyrooted in this country's traditions. Rather, it would impinge on the recognizedlegislative prerogative to guide the administration of sentencing by designatingthe weight to be accorded to traditional sentencing factors. A legislaturemay prescribe determinate sentences, or set wide sentencing ranges withthe understanding that judges will exercise appropriate discretion. A sentencethat is constitutionally permissible when selected by a court on the basisof whatever factors it deems appropriate does not become impermissible simplybecause the court is permitted to select that sentence only after makinga finding prescribed by the legislature.

C. The rule proposed in Jones also conflicts with the rationale of threelines of this Court's precedent. The Court has upheld the legislature'sdesignation of sentencing factors that mandate a minimum sentence withina pre-existing range; it has sustained the federal sentencing guidelinessystem, under which binding sentencing ranges, within statutory maximumand minimum terms, turn on judicial findings at sentencing, made under thepreponderance-of-the-evidence standard; and it has endorsed capital punishmentschemes in which aggravating factors, necessary to make a defendant eligiblefor a capital sentence, are found by the judge at sentencing, rather thanby the jury at trial. If judicial findings can justify mandatory minimumterms, guidelines sentences within a range of punishment, and increasesin a defendant's sentencing exposure from life to death, there is no reasonto bar legislatures from specifying judicial findings that will operateto increase the maximum authorized term of imprisonment.

D. The rule proposed in Jones would serve no overriding constitutional purpose.The Constitution requires proof beyond a reasonable doubt, and the interpositionof the jury between the State and the defendant, in order to protect againstthe conviction of innocent persons and to prevent arbitrary exercises ofgovernment power. Once a defendant is found guilty of a properly definedcriminal offense, however, the State's interest validly shifts to the questionof determining an appropriate punishment. In that inquiry, the rigorousformality of criminal trials gives way to a practical and commonsense effortto select a sentence that fairly punishes the individual offender and protectsthe community. Sentencing enhancement factors fit logically into that framework.A legislature's provision for increased maximum terms of punishment basedon judicial findings does not erode or depreciate the jury's function. Thereare significant constitutional limits on the sentencing process. Neitherour constitutional tradition nor fundamental fairness, however, requiresthat all the protections of a criminal trial be afforded in determiningthe existence of factors that the legislature deems relevant only to sentencing.

ARGUMENT

A STATE MAY CONSTITUTIONALLY PROVIDE THAT BIASED PURPOSE IS A SENTENCINGFACTOR THAT INCREASES THE OTHERWISE APPLICABLE SENTENCING RANGE FOR AN OFFENSE

The New Jersey legislature has defined the offense at issue in this caseto be "possession [of] any firearm with a purpose to use it unlawfullyagainst the person or property of another." N.J. Stat. Ann. §2C:39-4(a) (West 1995). It has also determined that enhanced punishmentfor that offense should be available when the offense is committed witha racially biased purpose. Id. § 2C:44-3(e). Like other facts thatare germane to the proper punishment of a defendant found guilty of a crime,but that are not made elements of the underlying crime, that enhancing circumstanceis to be found by the court, at sentencing, by a preponderance of the evidence.The New Jersey Supreme Court has concluded that state law creates this divisionbetween guilt and sentencing determinations, and that conclusion is bindingin this Court. See, e.g., Wisconsin v. Mitchell, 508 U.S. 476, 483 (1993).The question here is whether the State's decision complies with the federalConstitution.

"[T]he Court has rejected an absolute rule that an enhancement constitutesan element of the offense any time that it increases the maximum sentenceto which a defendant is exposed." Monge v. California, 524 U.S. 721,729 (1998) (citing Almendarez-Torres v. United States, 523 U.S. 224 (1998)).But in Jones v. United States, 526 U.S. 227, 239-252 (1999), the Court suggestedthat there is a serious unresolved question whether, "under the DueProcess Clause of the Fifth Amendment and the notice and jury trial guaranteesof the Sixth Amendment, any fact (other than prior conviction) that increasesthe maximum penalty for a crime must be charged in an indictment, submittedto a jury, and proven beyond a reasonable doubt." Id. at 243 n.6. TheCourt should resolve that question by holding that there is no such requirement.Once a defendant has been found guilty of a crime, after being affordedhis Fifth and Sixth Amendment rights, the Constitution does not preventthe State from entrusting to the sentencing process the determination offacts that may enhance the range of appropriate punishment.

A. A State Has A Wide Range Of Options For Structuring The Sentencing Process

The Court's cases have settled several basic propositions that properlyframe the question presented here.

First, the Court has repeatedly made clear that, within broad constitutionallimits, definition of the elements of criminal offenses is a matter forstate legislatures or for Congress, not for the federal courts. Staplesv. United States, 511 U.S. 600, 604 (1994) ("[T]he definition of theelements of a criminal offense is entrusted to the legislature, particularlyin the case of federal crimes, which are solely creatures of statute.");McMillan v. Pennsylvania, 477 U.S. 79, 85 (1986) ("the state legislature'sdefinition of the elements of the offense is usually dispositive").In defining a criminal offense, the Constitution does not require the Stateto include as "elements" all matters of defense, Martin v. Ohio,480 U.S. 228, 233 (1987), mitigation, Patterson v. New York, 432 U.S. 197,201 (1977), or aggravation, McMillan, 477 U.S. at 84-91. Rather, the Statehas considerable latitude to define such matters as affirmative defensesor sentencing considerations.

Second, having defined a crime, the legislature may prescribe the punishmentto be imposed on the offender. It may do so by itself prescribing a fixedpenalty (other than capital punishment). See Chapman v. United States, 500U.S. 453, 467 (1991) ("Congress has the power to define criminal punishmentswithout giving the courts any sentencing discretion."). Or it may specifythat the court must impose a sentence falling within a defined range, whichmay be either narrow or broad. See, e.g., Mistretta v. United States, 488U.S. 361, 364-365 (1989); United States v. Grayson, 438 U.S. 41, 45-48 (1978);compare, e.g., 18 U.S.C. 1301 (authorizing imprisonment for not more thantwo years for importing lottery tickets) with 18 U.S.C. 1201(a) (makingkidnapping punishable by "imprisonment for any term of years or forlife").

Third, once a sentencing range has been set by statute, "the scopeof judicial discretion with respect to a sentence is subject to [legislative]control." Mistretta, 488 U.S. at 364. The legislature may vest thesentencing court with essentially "unfettered discretion." Ibid.Or, at the other end of the spectrum, it may cabin the exercise of thatdiscretion with legislatively adopted guidelines. See Miller v. Florida,482 U.S. 423 (1987) (state indeterminate sentencing scheme subject to presumptivesentencing ranges under sentencing guidelines); compare N.J. Stat. Ann.§ 2C:44-1 (West 1995) (establishing presumptions with respect to impositionand appropriate length of prison sentences for various types of crimes).It may specify considerations that a court must take into account at sentencing.See 18 U.S.C. 3553(a) (setting out seven factors to be considered in imposingsentence). It may set mandatory minimum sentences, within the range otherwiseprescribed, that a court must impose if it finds the existence of specifiedfacts or circumstances. See McMillan, supra (possession of a firearm duringcommission of the offense required mandatory minimum sentence). And it mayrequire adherence to administratively promulgated sentencing guidelinesthat establish presumptive sentencing ranges. See, e.g., Mistretta, supra;Edwards v. United States, 523 U.S. 511 (1998); United States v. Watts, 519U.S. 148, 155-157 (1997) (per curiam). All of these approaches regulatesentencing, within the range otherwise prescribed by statute, on the basisof findings made by the court about the nature of the offense and the characterof the offender.

Fourth, whether the sentencing court retains plenary discretion or is limitedby mandatory minimums or a guidelines system, it is generally entitled,and by tradition expected, to receive and consider an essentially unlimitedrange of potentially relevant information, in order to make an individualizedsentencing determination based on the particular circumstances of the case.See, e.g., 18 U.S.C. 3661; Witte v. United States, 515 U.S. 389, 397-398(1995); Nichols v. United States, 511 U.S. 738, 747 (1994); Williams v.New York, 337 U.S. 241, 246 (1949). In conducting that inquiry, "[s]entencingcourts have traditionally heard evidence and found facts without any prescribedburden of proof at all." McMillan, 477 U.S. at 91. This Court has repeatedlyapproved the finding of sentencing facts by a preponderance of the evidence.Id. at 91-93; Watts, 519 U.S. at 155-157.2

B. The Specification Of Sentencing Factors That Increase The AuthorizedSentence Is Consistent With Constitutional Principles And Practice

Against this background, the proposed rule articulated in Jones-that "anyfact (other than prior conviction) that increases the maximum penalty fora crime" must be treated as an element of the crime (526 U.S. at 243n.6)-is unwarranted. Such a rule would prohibit the entire class of legislationthat specifies statutory "sentencing factors" (other than recidivism)that may enhance the range of punishment beyond an otherwise applicablerange, unless those factors are designated as offense elements that mustbe proved to a jury beyond a reasonable doubt. The defendant does have theright to have a jury determine guilt of a criminal offense beyond a reasonabledoubt. Sullivan v. Louisiana, 508 U.S. 275, 277-278 (1993). But such a rulehas never been applied at sentencing. Nor would application of such a rulefind support in "some principle of justice so rooted in the traditionsand conscience of our people as to be ranked as fundamental." Patterson,432 U.S. at 202.

1. The proposed rule in Jones could be understood to require only that alegislature make clear, in defining a crime, that the "maximum penalty"is the highest that will be authorized for that crime under any circumstances.As applied to the carjacking statute at issue in Jones, for example, theproposed rule would have been satisfied if Congress had provided: "Carjacking,as defined in 18 U.S.C. 2119, is punishable by up to life imprisonment;provided that the court may not impose a sentence in excess of 15 years'imprisonment unless it finds that serious bodily injury resulted from thecarjacking." If that formulation were sufficient to satisfy the Court'sproposed constitutional test, the test would turn on formalities of legislativedrafting. See 526 U.S. at 267 (Kennedy, J., dissenting). We therefore assume,for present purposes, that the Jones Court intended to suggest a substantiallybroader constitutional rule. See Monge, 524 U.S. at 741 (Scalia, J., dissenting)(advocating similar rule that would apply "[h]owever [a State] choosesto divide and label its criminal code").

That broader rule, however, would impinge on the prerogative of legislaturesto guide the administration of their criminal justice systems, without affordingany offsetting benefit in the form of protection of constitutional values.Criminal laws and their accompanying sentencing provisions, taken as a whole,reflect a variety of interrelated legislative judgments, based on policychoices relating to both crime and punishment. In defining criminal conduct,the legislature identifies those acts that are sufficiently harmful or invasiveof the rights of society as to merit application of the social stigma ofa criminal conviction and the deprivation of liberty that may be imposedas a punishment. Anyone who is found, after a trial conducted in accordancewith constitutional protections, to have committed the proscribed acts maybe convicted and branded as a criminal.

Within that class of offenders, the legislature may also identify certaincharacteristics of the crime and the offender that make the defendant moreor less culpable than other individuals who have engaged in the same criminalconduct. The legislature may legitimately determine that those factors,though not essential to criminality, are highly germane to the precise punishmentto be meted out in the particular case. Here, for example, New Jersey hasdefined the offense in question as possession of a firearm for the purposeof using it unlawfully against the person or property of another. The Statehas also made clear that a particular offender is worthy of more seriouspunishment when his motive for committing that offense is racial bias. Badmotive is a traditional sentencing factor, i.e., a factor that makes anoffender who has committed a particular crime worthy of more serious punishment,and it may be taken into account in sentencing for a particular offense.Wisconsin v. Mitchell, 508 U.S. at 485; see Barclay v. Florida, 463 U.S.939 (1983) (per curiam).

By explicitly designating motive as a sentencing factor that enhances theotherwise-applicable punishment, the New Jersey legislature has expresseda particular judgment about how severely offenders of a particular classshould be punished. There is nothing suspect in that determination. Oncethe presumption of innocence has been overcome by the jury's finding ofguilt, see Taylor v. Kentucky, 436 U.S. 478, 483-486 (1978), the legislature'sinterest shifts from defining prohibited conduct to ensuring that societyobtains a fair and adequate sentence, calibrated to the nature of the offenderand the details of the particular offense. The procedures of sentencing,which courts generally conduct with a view towards assembling the most completepicture possible of the offense and the offender, are far better suitedto the determination of an accurate punishment than are the formal proceduresand evidentiary constraints of a criminal trial.

By the same token, deferring exploration of some of the details of the offense-whyit was committed, and in what precise manner-until sentencing may servecompelling interests of fairness and practicality. The legislature may conclude,for example, that in a jury trial the government should not be requiredto prove, or an accused to defend against, formal allegations of "bias,"when those allegations are important to punishment but not central to thecrime itself. See Pet. App. 24a (requiring proof of racial bias at trialcould "create[] an added risk of prejudice for defendants" and"inject into the trial of cases issues of racial or ethnic bias thathave a potential to inflame a jury"). The legislature may also concludethat a jury trial should not be unduly prolonged or complicated by a requirementthat every detail of the defendant's offense be determined with precisionand documented by a special verdict.

Legislatures have made judgments of that character in framing any numberof criminal offenses and related sentencing schemes. The primary federaldrug statute, for example, 21 U.S.C. 841 (1994 & Supp. IV 1998), defines,in subsection (a), an offense of knowingly or intentionally manufacturing,distributing, or dispensing any controlled substance. It then sets out,in subsection (b), a set of statutory sentencing factors relating primarilyto the type and quantity of drugs involved in a given offense, as well asto the defendant's criminal history and whether the particular crime resultedin special harm, such as bodily injury or death. The sentence varies considerablybased on the circumstances of the crime. Those circumstances, however, arenot encompassed in the determination of guilt. See Mitchell v. United States,119 S. Ct. 1307, 1314 (1999) (after a valid plea of guilty under federaldrug statutes, "[p]etitioner faced imprisonment from one year upwardsto life, depending on the circumstances of the crime").

Like the state law at issue here, Section 841 reflects a legislative judgmentthat certain elements are necessary to constitute a criminal "offense,"without proof of which no punishment is warranted, while other factors arehighly relevant to setting an appropriate sentence. Congress's very separationof those factors, such as type and quantity of particular drugs, into separatesentencing provisions demonstrates a judgment that they are not essentialto the finding of criminality. It also furthers legitimate aims of practicalityand fairness. There is no reason to require protracted proceedings beforethe jury to make detailed factual determinations that are important to sentencing,but collateral to guilt. And "[a] defendant might not, for example,wish to simultaneously profess his innocence of a drug offense and disputethe amount of drugs allegedly involved." Monge, 524 U.S. at 729.3 Thelegislative judgments reflected in statutes that differentiate between elementsand sentencing factors are thus legitimate and important, and should notbe lightly set aside.

2. There is, moreover, no evident reason to hold that statutes embodyingsuch judgments are constitutionally different from statutes that definean offense and then specify only the maximum penalty that the legislaturebelieves appropriate for the worst offenses and offenders, while allowingjudges plenary discretion within that range. When a legislature sets fortha broad range of possible punishment, it does not necessarily expect thatjudges will impose sentences at or near the maximum term of imprisonmentin ordinary cases. Rather, the legislature can reasonably assume that sentencingjudges will take into account typical factors bearing on the crime and offender,selecting harsher sentences for those offenders whose conduct and characterare marked by greater social evil, and milder sentences for others.4 Ifa particular judge openly declared that he or she imposed longer sentencesonly when offenders committed their crimes under particularly egregiouscircumstances, such as because of racial hatred, it would not change theunderlying criminal offense by adding an element of "racial bias."Rather, it would embody the sort of reasoned judgment that legislaturesordinarily expect sentencing courts to make.

The result should not be different where, to mirror or standardize existingpractice, the legislature imposes explicit statutory constraints on thediscretion otherwise accorded sentencing courts. See Witte, 515 U.S. at401-402; McMillan, 477 U.S. at 92 ("We have some difficulty fathomingwhy the due process calculus would change simply because the legislaturehas seen fit to provide sentencing courts with additional guidance.").The specification of a sentencing enhancement does not alter the inherentnature of the underlying crime, regardless of whether the factor is identifiedin a sentencing proceeding by a judge or in a statute by the legislature.And it is difficult to see why a sentence that is constitutionally permissibleif selected by a judge exercising unlimited discretion becomes constitutionallyimpermissible because the judge was permitted to select it only after makinga statutorily specified threshold finding.

We agree with the observation that this Court's constitutional analysisshould not turn on mere formalities in the way a legislature frames or organizesits criminal statutes. See, e.g., Jones, 526 U.S. at 267 (Kennedy, J. dissenting);Monge, 524 U.S. at 741 (Scalia, J., dissenting). Constitutional rights shouldnot be controlled by labels. For essentially that reason, however, it shouldnot matter whether a legislature has provided a high overall statutory maximum,with the expectation that implicit "sentencing factors" will determinewhere in the range the judge will fix the punishment, or has itself providedgraduated penalties for an offense that escalate incrementally dependingon specified findings made at sentencing. Indeed, the most significant differencebetween the two schemes is a feature of the former that works against thedefendant: in a system of pure discretion, the sentencing judge always hasthe power to impose the greatest sentence available, even if the legislatureintended that maximum term to be reserved for the worst offenders. It isnot reasonable to hold that the Constitution requires legislatures to exposeall offenders to the same maximum penalty, to be imposed or not at the discretionof the sentencing judge, rather than specifying for the judge which classesof offenders who commit a particular crime may receive the harshest treatment.

C. A Rule Requiring Jury Determination, Beyond A Reasonable Doubt, Of AllSentencing Factors That Raise The Maximum Authorized Term Does Not AccordWith This Court's Cases

The rule proposed in Jones would also be at odds with the logic underlyingthis Court's previous holdings in closely related areas.

1. In McMillan v. Pennsylvania, this Court held that statutes may prescribemandatory minimum senences to be imposed on the basis of findings made bya judge at sentencing. There is a fundamental parallel between the judgmentexercised by a legislature in prescribing a minimum sentence that must beimposed if the judge makes a specified finding, and the judgment exercisedby a legislature in prescribing one or more upper ranges of sentences thatmay not be imposed unless the judge makes such a finding. In each case,the legislature identifies a particular factor and specifies sentencingconsequences that flow from its existence. If a legislature may requirea mandatory minimum sentence based on a fact proved at sentencing, it shouldalso be entitled to preclude sentences in excess of a particular lengthabsent proof of a fact at sentencing. To hold otherwise would allow legislaturesto constrain judicial sentencing discretion to the invariable detrimentof criminal defendants, while forbidding them from constraining it in amanner that may benefit some defendants. That would be an odd manner ofprotecting the constitutional rights of the accused.

In Almendarez-Torres, the Court correctly observed that mandatory minimumsentences are generally more onerous in their effect on criminal defendantsthan are provisions that raise the maximum sentence available based on aparticular finding at sentencing. 523 U.S. at 244-245. The Court reliedon that observation and other factors in holding that increasing the maximumterm based on the sentencing factor of recidivism does not violate the Constitution.Id. at 239-247.5 Adoption of the Jones rule for all other types of sentencingfactors than recidivism, however, could lead legislatures to eliminate intermediatesentencing ranges-which benefit some defendants-from their criminal statutes,contenting themselves instead with simple offense definitions, wide sentencingranges, mandatory minimums, and the discretion of sentencing judges. See,e.g., 18 U.S.C. 924(c) (Supp. IV 1998) (replacing former provisions thatspecified graduated determinate sentences based on various criteria withnew provisions in which the same criteria define mandatory minimum sentences,with a maximum of life imprisonment for any version of the offense). Alternatively,a State might elect to set the greatest maximum penalty for all personswho commit a particular offense, while providing for affirmative defenses(or mitigating factors) to be proved by the defendant in order to obtaina lesser penalty. Cf. Patterson v. New York, supra (State may provide foran affirmative defense of extreme emotional disturbance that mitigates murderto manslaughter to be proved by the preponderance of the evidence).6 Itis doubtful that such regimes would benefit criminal defendants as a class,or advance the goals of rational and reasonably uniform sentencing.

2. As noted above, the Court has upheld the use and operation of the federalSentencing Guidelines. Mistretta v. United States, 488 U.S. 361 (1989).Cases under the Guidelines make clear that so long as the minimum and maximumsentences prescribed by statute are observed, it is constitutionally permissiblefor the Guidelines to guide and channel the discretion exercised by sentencingcourts-and to do so on the basis of factual findings made by the sentencingjudge by a preponderance of the evidence. See, e.g., Edwards, 523 U.S. at513-514; Watts, 519 U.S. at 155-156; Witte, 515 U.S. at 400-404; see alsonote 2, supra. The sentencing ranges set by the Guidelines operate as legalconstraints on the sentencing court. See Stinson v. United States, 508 U.S.36, 42 (1993). The judge is ordinarily limited to the maximum term set bythe applicable Guidelines range, unless the range exceeds the statutorymaximum term or there are grounds to depart upward. See Koon v. United States,518 U.S. 81, 92-93 (1996); United States v. R.L.C., 503 U.S. 291, 306-307(1992).

The Constitution thus permits legislatures to set determinate sentences;to set only broad sentencing ranges, leaving all subsidiary determinationsto the unguided discretion of the sentencing judge; or to set overall maximumand minimum sentences, and then require judges to abide by intermediatesentencing ranges established by a sentencing commission (subject to departuresin extraordinary cases). The Jones rule, however, would essentially forbidthe legislature from mandating sentencing ranges within an overall maximumterm, with no departures from those ranges allowed, unless the court treatedeach fact that made a defendant eligible for a higher range as if it werean element of an aggravated offense. The constitutional principle that wouldrequire those distinctions is elusive at best.

3. Finally, as Jones acknowledges, 526 U.S. at 251, the proposed rule isin at least considerable tension with the Court's consistent holdings incapital cases that the aggravating factors necessary to impose a death sentenceneed not be made "elements" of the capital offenses in question,and may be found by sentencing judges (or even by an appellate court). See,e.g., Walton v. Arizona, 497 U.S. 639, 645, 647-649 (1990); Hildwin v. Florida,490 U.S. 638 (1989) (per curiam); Cabana v. Bullock, 474 U.S. 376, 385-386& n.3 (1986) ("while the Eighth Amendment prohibits the executionof * * * defendants [in the absence of predicate findings], it does notsupply a new element of the crime of capital murder that must be found bythe jury"; rather, it places "a substantive limitation on sentencing"that "need not be enforced by the jury."); Spaziano v. Florida,468 U.S. 447, 452 (1984).7

Such findings are not simply factors that guide the "choice betweena greater and a lesser penalty." Jones, 526 U.S. at 251. They are mandatorymatters necessary to increase the sentencing range from life to death.8See Jones v. United States, 119 S. Ct. 2090, 2097-2098 (1999) (describingthe intent and aggravating factors in the Federal Death Penalty Act, 18U.S.C. 3591 et seq., that made the defendant "death-eligible,"and distinguishing those prerequisites from the process of "weighing"aggravating and mitigating factors in the "selection decision"between life and death). Judges, rather than juries, may therefore makefindings that are legislatively and constitutionally essential before adefendant may be sentenced to death. It would be a strange constitutionalregime that permitted that process, yet precluded a legislature from specifyinga statutory enhancement factor that raised the sentencing range availableto a judge in imposing a term of imprisonment.

D. There Is No Justification For Adopting The Constitutional Rule ProposedIn Jones

All of these considerations might be overborne if there were a compellingreason for adopting the rule suggested in Jones. No showing has been made,however, of any danger to liberty that would justify it.

1. The constitutional concerns voiced in Jones relate to the due processrequirement of proof beyond a reasonable doubt, see In re Winship, 397 U.S.358, 364 (1970), and the Sixth Amendment right to trial by jury. See 526U.S. at 242. With respect to due process, the Court noted a concern thatunlimited legislative control over sentencing factors that raise the maximumterm could permit a State "to manipulate its way out of Winship,"id. at 243, by permitting guilt to be found on less than proof beyond areasonable doubt. See id. at 240-241 (characterizing Mullaney v. Wilbur,421 U.S. 684 (1975), as resting in part on this view). The Jones Court alsoobserved that Patterson v. New York, 432 U.S. 197, 210 (1977), while rejectinga Winship challenge, had nonetheless recognized that there is a constitutional"limit on state authority to reallocate traditional burdens of proof."526 U.S. at 243. Neither the cited cases nor their underlying principles,however, support a constitutional rule as broadly defined as the one advancedin Jones.

In Mullaney v. Wilbur, the Court held only that a State that defines a particularfact as an element of an offense may not then dispense with proving thatelement to the jury by relying wholly on a presumption arising from proofof other facts. In Patterson, where the Court upheld the treatment of extremeemotional disturbance as an "affirmative defense" that reducedmurder to manslaughter, the Court took pains to indicate that the reachof Mullaney went no farther than its ban on conclusive presumptions. Pattersondeclined to "disturb the balance struck in previous cases holding thatthe Due Process Clause requires the prosecution to prove beyond a reasonabledoubt all of the elements included in the definition of the offense of whichthe defendant is charged." 432 U.S. at 210. The Court then observedthat "there are obviously constitutional limits beyond which the Statesmay not go." Ibid. But the limits that the Court had in mind involvedabrogation of the presumption of innocence.9 See McMillan, 477 U.S. at 86-87(Patterson, in responding to the concern that its holding would enable aState to have "unbridled power to redefine crimes to the detrimentof criminal defendants," reaffirmed "the unremarkable propositionthat the Due Process Clause precludes States from discarding the presumptionof innocence.").

The presumption of innocence has not been discarded in this case. "Oncethe defendant has been convicted fairly in the guilt phase of the trial,the presumption of innocence disappears." Delo v. Lashley, 507 U.S.272, 278 (1993) (per curiam). Petitioner was found guilty based on his pleaacknowledging commission of the elements of the offense; had he not so pleaded,he would have been exposed to sentencing (including any enhancement forbiased motive) only if he were found guilty beyond a reasonable doubt ofthe charged offense. "Once the reasonable doubt standard has been appliedto obtain a valid conviction, the criminal defendant has been constitutionallydeprived of his liberty to the extent that the State may confine him."McMillan, 477 U.S. at 92 n.8.

2. With respect to the defendant's right to a jury trial, Jones expressedconcern about the "practical implications" of allowing legislaturesto enact statutory enhancement factors. 526 U.S. at 243. Noting that enhancementfactors may significantly increase the range of available punishment, theCourt raised the question "whether recognizing an unlimited legislativepower to authorize determinations setting ultimate sentencing limits withouta jury would invite erosion of the jury's function to a point against whicha line must necessarily be drawn." Id. at 244. Reliance on statutorysentencing factors to enhance a range does make a particular sentence turnon nonjury determinations. But that does not distinguish such a case fromany other in which a range of sentences is authorized. Neither approachimpairs the defendant's right to a jury trial. A defendant who pleads notguilty, and who exercises his right to a jury trial, may not be sentencedunless he is found guilty by a jury. While additional facts proved at sentencingmay enhance his punishment, "there is no Sixth Amendment right to jurysentencing, even where the sentence turns on specific findings of fact."McMillan, 477 U.S. at 93.

The situation of a defendant exposed to an enhanced maximum sentence basedon a statutory sentencing factor is functionally identical to the situationof a defendant exposed to a particular sentence based on factors that acourt must find, under binding sentencing guidelines, within the same overallstatutory range. The situation also resembles a scheme involving the sameoverall range and traditional discretionary sentencing carried out by thejudge alone. The jury's finding of guilt in all of these regimes "open[s]the door" to a long prison sentence, up to and including life imprisonment,based on facts found at sentencing; but the jury finding that authorizessuch sentencing cannot be described in any of them as "low-level gatekeeping."Jones, 526 U.S. at 244.

Nothing in this analysis detracts from the historical and contemporary importanceof the right to trial by jury. That history, however, does not directlyilluminate the present issue, as the Jones Court acknowledged. 526 U.S.at 244. Rather, the significant historical lesson is found in the long-acceptedand fundamental divide in our criminal justice system between the adjudicationof guilt and the fixing of an appropriate punishment. The rigorous safeguardsthat the Constitution provides for the determination of guilt serve to protectthe innocent, even at the expense of sometimes freeing the guilty, and toprevent arbitrary exercises of power by government. See Winship, 397 U.S.at 372 (Harlan, J., concurring) (discussing the reasonable-doubt principle);Douglas v. Louisiana, 391 U.S. 145, 151-154 (1968) (discussing purpose ofthe jury guarantee). Those same protections do not, however, apply at sentencing.

That is not because sentencing is not a serious matter. Rather, it is becausesentencing implicates society's compelling interest in fashioning an appropriatepunishment for the guilty that is consistent with the protection of thecommunity. The government has complied with the core procedures requiredto attach social stigma to the defendant's acts and to deprive him of liberty;the question then becomes one of the degree of that deprivation. In makingthat determination, there is no longer the risk of punishing an innocentperson, and the paramount consideration becomes society's interest in makingthe sentencing decision based on full and complete information, as assessedby a judge with whatever guidance the legislature chooses to provide.

The sentencing process does not take place in a constitutional vacuum. TheDue Process Clause protects a defendant against being sentenced based on"misinformation of a constitutional magnitude." United Statesv. Tucker, 404 U.S. 443, 447 (1972); Townsend v. Burke, 334 U.S. 736, 740-743(1948). The Fifth Amendment protects against drawing an adverse inferenceabout the facts of an offense based on a defendant's silence at sentencing.Mitchell v. United States, 119 S. Ct. 1307, 1316 (1990). The First Amendmentprotects against imposing sentence based on a defendant's "abstractbeliefs." Dawson v. Delaware, 503 U.S. 159, 167 (1992). And the EighthAmendment provides a proportionality check that serves to prevent the impositionof a sentence grossly disproportionate to the offender's crime. Harmelinv. Michigan, 501 U.S. 957 (1991) (plurality opinion); cf. United Statesv. Bajakajian, 524 U.S. 321 (1998) (excessive fines).

In light of that background, a legislature's decision to specify factorsthat will raise the authorized level of punishment in some cases, as comparedto others, does not risk eroding constitutional rights to a point "againstwhich a line must necessarily be drawn." 526 U.S. at 244. Rather, itprovides a mechanism for society to obtain a fair and proper punishmentfor an individual found guilty of crime. As the Court has reiterated inthe context of Double Jeopardy challenges to applications of the federalSentencing Guidelines, a defendant is properly punished only for an offenseof which he has been convicted-no matter what other conduct or characterfactors may be taken into account in setting a sentence within the rangeauthorized for that offense. See Watts, supra; Witte, supra; see also, e.g.,Williams v. New York, 337 U.S. 241 (1949). There are limits to the State'sauthority to define conduct as criminal in the first place. See Robinsonv. California, 370 U.S. 660 (1962). Those limits include the requirementthat citizens must have fair notice that specified conduct is against thelaw. See, e.g., Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939). And, althougha State need not conform its definition of crimes to the common law, theremay also be limits on a State's power radically to redefine certain crimes.See Jones, 526 U.S. at 240-241 (suggesting that State may "lack[] thediscretion to omit 'traditional' elements from the definition of crimes");cf. Almendarez-Torres v. United States, 523 U.S. 224, 246 (1998) (notingthat provisions at issue did not "change a pre-existing definitionof a well-established crime"); McMillan, 477 U.S. at 90 (similar).

If, however, a defendant has been properly charged with a valid offensedefined by the legislature, and has pleaded guilty to that offense or beenfound guilty by a jury, the Constitution permits the sentencing court totake account of any relevant information it has available concerning thedefendant's conduct or character, and to impose any sentence authorizedby law. It also permits a legislature to guide and limit the judge's sentencingdiscretion by specifying a fixed sentence, or through mandatory guidelines.It should make no constitutional difference if a statute instead specifiesfacts that, if found by the sentencing court, will increase the maximumauthorized sentence.

CONCLUSION

The judgment of the Supreme Court of New Jersey should be affirmed.

Respectfully submitted.

SETH P. WAXMAN
Solicitor General
JAMES K. ROBINSON
Assistant Attorney General
MICHAEL R. DREEBEN
Deputy Solicitor General
EDWARD C. DUMONT
Assistant to the Solicitor
General
NINA GOODMAN
Attorney

FEBRUARY 2000


1 The court acknowledged that this Court's later decision in Jones v. UnitedStates, 526 U.S. 227 (1999), had suggested that increasing the maximum statutorysentence on the basis of a sentencing factor could "pose 'grave anddoubtful constitutional questions.'" Pet. App. 18a-19a (quoting Jones,526 U.S. at 239). Noting, however, that "the language in Jones wasnot essential to its holding" and that this Court "did not expresslyoverrule the Almendarez-Torres formulation," the court determined thatAlmendarez-Torres continued to provide the proper framework for constitutionalanalysis. Id. at 19a-20a.

2 The Court has also noted the existence of a divergence of opinion amongthe courts of appeals on whether a higher standard might be required, in"extreme" circumstances, in making findings under the federalSentencing Guidelines. Watts, 519 U.S. at 156 & n.2; Almendarez-Torres,523 U.S. at 247-248. That question is presented by the government's pendingpetition for a writ of certiorari in United States v. Reed, No. 99-1096(filed Dec. 29, 1999).

3 It has been suggested that courts could deal with any risk of unfairnessby "bifurcating" trials into "guilt" and "appropriatesentence" phases. See Monge, 524 U.S. at 739 n.1 (Scalia, J., dissenting).Routine bifurcation of non-capital trials, however, would be an extraordinarilycumbersome way to conduct the criminal process. In a complex multi-defendantdrug conspiracy case, sentencing proceedings in which a jury would be askedto allocate to each co-conspirator particular types and quantities of drugswould not only be burdensome, they would risk jury confusion that wouldill serve society's interest in determining a fair punishment for each individualdefendant.

4 Occasionally, that assumption is made explicit in a statute. See 27 U.S.C.91 (Supp. III 1929) (setting penalty range for illicit transactions in liquor,"Provided, That it is the intent of Congress that the court, in imposingsentence hereunder, should discriminate between casual or slight violationsand habitual sales of intoxicating liquor, or attempts to commercializeviolations of the law."). See Husty v. United States, 282 U.S. 694,702-703 (1931). More commonly, "[s]entencing and parole release decisions* * * have largely been left to the unfettered discretion of the officialsinvolved. Legislatures have traditionally set high maximum penalties withinwhich judges must choose specific sentences, but generally have providedlittle guidance for the exercise of this choice. * * * In effect, sentencingpolicymaking has traditionally been delegated to a multitude of independentjudges to be exercised in the context of individual cases. There has beenno attempt to separate policymaking from individual sentencing determinations.* * * [W]hich factors should be considered, under what circumstances, andhow they are to be weighted are decisions left solely to the unfettereddiscretion of the individual decisionmakers." Bullington v. Missouri,451 U.S. 430, 443 n.16 (1981) (quoting Hoffman & Stover, Reform in theDetermination of Prison Terms: Equity, Determinacy, and the Parole ReleaseFunction, 7 Hofstra L. Rev. 89, 96 (1978) (footnotes omitted)).

5 In Jones, the Court suggested that the factor of recidivism could be distinguishedfrom all other sentencing factors because "a prior conviction mustitself have been established through procedures satisfying the fair notice,reasonable doubt, and jury trial guarantees." 526 U.S. at 249. Thatdistinction overlooks that the defendant on trial may dispute that the priorconviction is his. When identity is controverted, the vital factual questionis whether the defendant is, in fact, a recidivist and thus subject to enhancedpunishment. That finding, like all other determinations relevant to sentencing,will be made by a judge under the preponderance standard. It is true thatdisputes over the identity of a felon will seldom be difficult to resolve,but the proposed constitutional rule in Jones presumably does not turn onthe ease or difficulty of proving a particular factor. Many sentencing factorsmay be present beyond rational dispute in a given case.

6 Under Patterson, New Jersey could have provided for a 20- year sentencefor all firearms offenses, subject to an affirmative defense that loweredthe maximum term to ten years where the use of the firearm was not motivedby racial bias, did not result in bodily injury, was not stolen, did notfunction automatically, and so forth. A State that adopted such a regimeof affirmative defenses could put the burden of persuasion on the defendant,in contrast to New Jersey's current requirement that the State bear theburden of proof.

7 The Court reaffirmed that principle in Hopkins v. Reeves, 524 U.S. 88,100 (1998), with respect to the intent findings required for a capital sentence.The Court explained that the Eighth Amendment rule requiring a "culpablemental state" for a capital sentence "does not concern the guiltor innocence of the defendant-it establishes no new elements of the crimeof murder that must be found by the jury . . . and does not affect the state'sdefinition of any substantive offense." Id. at 100 (quoting Cabana,474 U.S. at 385). A State may therefore comply with the mental-state requirement"at sentencing or even on appeal." 524 U.S. at 100.

8 See Lowenfield v. Phelps, 484 U.S. 231, 244-246 (1988). Jones based itsanalysis (526 U.S. at 251) on language in Walton, 497 U.S. at 648, whichstated: "Aggravating circumstances are not separate penalties or offenses,but are 'standards to guide the making of [the] choice' between the alternativeverdicts of death and life imprisonment." Walton, however, does notsupport the analysis in Jones. Walton quoted Poland v. Arizona, 476 U.S.147, 156 (1986), which in turn quoted the phrase "standards to guidethe making of [the] choice" from Bullington v. Missouri, 451 U.S. 430,438 (1981). Both Poland and Bullington make clear that the finding of atleast one aggravating circumstances is a prerequisite to a capital sentence.See Poland, 476 U.S. at 156 (in Arizona "the sentencer must find someaggravating circumstances before the death penalty may be imposed'); Bullington,451 U.S. at 439, 441 n.15 (noting that the jury was required, after findingguilt, to find "additional facts in order to justify the particularsentence," and distinguishing Stroud v. United States, 251 U.S. 15(1919), on the ground that "Stroud's jury was not required to findany facts in addition to those necessary for a conviction for first-degreemurder in order to sentence him to death.").

9 Immediately after its reference to "constitutional limits,"Patterson stated: "[I]t is not within the province of a legislatureto declare an individual guilty or presumptively guilty of a crime. Thelegislature cannot validly command that the finding of an indictment, ormere proof of the identity of the accused, should create a presumption ofthe existence of all the facts essential to guilt." 432 U.S. at 210(citations omitted). The Court has adhered to the principle that a Statemay not erect a conclusive presumption that a particular element of a crimemay be presumed from proof of another element. Sandstrom v. Montana, 442U.S. 510 (1979); Carella v. California, 491 U.S. 263, 265 (1989) (per curiam).That principle, however, is not implicated by a State's explicit determinationthat a particular fact, though germane to sentencing, is not relevant toguilt at all.

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