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Thursday, Jun. 27, 2002

Three important opinions - two of which were handed down last Monday - now set the framework for when juries, not judges, must find facts crucial to sentencing. All three interpret the Constitution's Sixth Amendment, which guarantees the right to a jury trial in a criminal case, with the corresponding evidentiary standards and "beyond a reasonable doubt" burden of proof.

First, there is the 2000 case of Apprendi v. New Jersey. There, the Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."

What does this holding mean? Here's an example: Suppose I am convicted of an offense that carries a ten-year statutory maximum penalty, but a court sentences me to twelve years in prison - based upon additional facts that were never proved to a jury beyond a reasonable doubt. According to Apprendi, that violates my Sixth Amendment right to a jury trial, and to a fair trial. That, of course, makes perfect sense.

Second, there is last Monday's decision in Ring v. Arizona, which applied the rule in Apprendi. There, the Court held that only juries, not judges, can determine those facts that permit the imposition of the death penalty. Thus, to take another example, if a jury convicts me of a capital offense, a judge cannot then impose a sentence of death based on further facts that only he has found. That also makes perfect sense.

Third, there is last Monday's decision in Harris v. United States. There, the Court held that judges, not juries, may decide facts that trigger mandatory minimum sentences, thereby significantly increasing defendants' sentences above that which they might otherwise receive. Yes, you read that right - it is the judge, not the jury, that can make the finding of fact. That means, too, that the finding can be based on hearsay evidence, and need not be proven beyond a reasonable doubt.

That makes no sense at all. Worse, it potentially eviscerates the Court's earlier holding in Apprendi.

The defendant in Harris pleaded guilty to distributing marijuana. At sentencing, while conceding that it was a "close question," the court determined by a preponderance of the evidence that the defendant "brandished" a gun in relation to his drug trafficking offense. The finding was significant, for simply having a gun in your pocket only carries a five-year mandatory minimum sentence, while brandishing it carries a seven-year mandatory minimum sentence. If he had discharged it, he would have received a ten-year mandatory minimum sentence.

The judge was not constrained by the need to exclude hearsay evidence, nor was he required to find "brandishing" beyond a reasonable doubt. Rather, the applicable standard was merely the lower "preponderance of the evidence" standard typically applicable in civil, not criminal cases, when money damages, not years in prison, are at issue.

As a result, had the issue been submitted to a jury, the defendant likely would only have gotten a five-year sentence. But based on the judge's additional "brandishing" finding, his sentence instead was seven years. Nevertheless, the Supreme Court let the sentence stand.

Given Apprendi, how can that be? Wasn't the defendant entitled to have a jury evaluate the evidence on the "brandishing" fact, and decide whether it had been proven beyond a reasonable doubt, with hearsay evidence properly excluded? Under the Sixth Amendment, how could the judge possibly make the finding by himself, and thus unilaterally increase the defendant's sentence by two years? Isn't there a constitutional right to a jury trial - and to a fair trial, too?

I believe Apprendi should have dictated a different result in Harris - entitling the Harris defendant to a jury finding on the "brandishing" element. But that result never became reality.

Why? Because the Court makes a distinction between an "element of an offense" and a "sentencing factor" that enabled at least some of its members to distinguish Apprendi and say that the earlier decision did not mandate a ruling in favor of the defendant in Harris.

The Troubling Element/Sentencing Factor Distinction

Only "elements" of an offense, the Court has held, must be charged in the indictment and proved to a jury beyond a reasonable doubt. In contrast, "sentencing factors" do not have to be charged in the indictment and proved to a jury beyond a reasonable doubt; they can be determined by the sentencing judge. Thus, as Justice Souter put it in Apprendi, "[m]uch turns on the determination that a fact is an element of an offense rather than a sentencing consideration." The question, then, is this: Who decides whether a fact is an element of an offense or a sentencing factor?

In Harris, five Justices--Kennedy, O'Connor, Rehnquist, Scalia, and Breyer--agreed that facts triggering mandatory minimums are not elements of crimes, and that therefore these facts can be found by a judge, not a jury. Justice Breyer, however, disagreed with the other four on their reasoning; they thought Apprendi was distinguishable; he was not so sure.

Justice Thomas's comments in dissent were trenchant: "like most Members of this Court, I cannot logically distinguish the issue here from the principles underlying the Court's decision in Apprendi . . . . According to the plurality, the historical practices underlying the Court's decision in Apprendi with respect to penalties that exceed the statutory maximum do not support extension of Apprendi's rule to facts that increase a defendant's mandatory minimum sentence. Such fine distinctions with regard to vital constitutional liberties cannot withstand close scrutiny."

Amen to Justice Thomas. The distinction between an "element" and a "sentencing factor" is a fine distinction, especially where both elements and sentencing considerations can have the very same effect: the meting out of significant punishment. Moreover, the same fact under one statutory system can be an "element," and under another, a "sentencing factor." Both, in short, can walk and quack like the same duck; yet one is shrouded in constitutional protections, and the other lies naked before the world.

The defendant in Harris ultimately lost because the "brandishing" fact - though it added two years to his sentence - was only, according to the plurality, a sentencing consideration, not an element. Why? Because, according to the plurality opinion, the "brandishing" fact does not affect the maximum penalty - only the minimum.

The problem with this logic is that by shifting statutory maximums and minimums around, Congress will be able to artfully modify the instances in which defendants do and do not get a jury - and thus to control when the Sixth Amendment applies. But, of course, the fair trial/jury trial right is supposed to be a check on Congress, not something it can easily circumvent by redrafting legislation a different way - and indeed, in a way that hurts defendants by imposing long maximums that may be completely out of proportion to their crimes.

As even the Harris plurality recognized, "[t]he Constitution permits legislatures to make the distinction between elements and sentences factors, but it imposes some limitations as well. For if it did not, legislatures could evade the indictment, jury, and proof requirements by labeling almost every relevant fact a sentencing factor." Still, Harris's ruling practically invites such Congressional evasion.

How Congress Can Evade Apprendi's Rule Because of the Ruling in Harris

Consider, for example, that the statutory maximum penalty for the firearm offense at issue in Harris is life imprisonment. For this reason, it is impossible for a defendant ever to raise a valid Apprendi objection relating to this offense. There will never be a firearm offense death sentence (the Supreme Court would strike it down for Eighth Amendment proportionality reasons). As a result, no sentencing enhancement for the firearm offense at issue in Harris will ever increase a sentence beyond the maximum penalty authorized.

It would be a very different matter, however, if possessing a firearm in relation to a drug trafficking offense carried a five-year statutory maximum - not minimum - penalty. In that event, under current law, a court could not sentence the defendant to seven years based only on a judge's "brandishing" finding.

Instead, a seven-year sentence could only be imposed if the defendant were charged with a more serious offense carrying a higher maximum penalty, for which the fact of "brandishing" would be an element. "Brandishing" would not be a "close question" that a judge could resolve based on hearsay and a preponderance of the evidence standard; it would have been resolved by a jury beyond a reasonable doubt.

Can Congress Now Destroy Apprendi Entirely?

So what's to prevent Congress from now maxing out every statutory criminal penalty at life - and thereby sounding the death knell for Apprendi? The answer may be: nothing (except possibly the Eighth Amendment's requirement that the punishment be at least somewhat proportional to the crime).

Granted, in his 1986 opinion in McMillan v. Pennsylvania, then-Associate Justice Rehnquist colorfully stated that a criminal statute must not "give the impression of having been tailored to permit the [sentencing factor] to be a tail which wags the dog of the substantive offense." But in light of the Court's sentencing jurisprudence, it is nearly impossible to tell just when the tail begins to wag the dog.

The Court has not struck down extremely harsh crack sentencing minimums, for instance. Yet these "mandatory minimums" mean that a judge, not a jury, decides (possibly on hearsay evidence, and certainly on only a preponderance of the evidence) many of the facts upon which a defendant's sentence ultimately depends.

Speaking of mandatory minimum sentences for drug offenses, will Apprendi or Harris apply there? Because of the strange, fractured majority in Harris, it's hard to tell. Justice Breyer - a past Federal Sentencing Guidelines architect who has expressed dismay at harsh drug mandatory minimums - might theoretically switch sides in a drug offense case.

The answer, though uncertain at this point, will be very significant. In fiscal year 2000, at the federal level alone, 23,542 offenders out of a total of 59,846 were sentenced for drug offenses and of those, 13,544 were subjected to mandatory minimum sentencing.

Thus, a clear and express holding by the Court that drug quality and quantity are elements of offenses (and thereby subject to procedural and evidentiary safeguards) could change the prosecution and sentencing of drug offenders dramatically.

Conversely, a clear holding that quality and quantity are merely sentencing factors could lead to even more unfair drug sentences than is currently the case - giving prosecutors free reign to hold their evidence on a particular fact to be heard only by the judge at sentencing, if they fear that evidence might not persuade the jury.

Over one million persons are now incarcerated in our state and federal penitentiaries. Our criminal justice system remains burdened with the madness of mandatory minimum sentencing schemes. For these reasons, we can wait no longer for the Court to tackle head on the issue that has been haunting it for at least the past two years: Where is the constitutional line between crime and punishment?

Mr. Allenbaugh is an Associate at Montedonico, Belcuore & Tazzara, P.C. in Washington, D.C., and is an Adjunct Professor in the Philosophy Department at the George Washington University. Prior to entering private practice, he served as a Staff Attorney for the United States Sentencing Commission. Mr. Allenbaugh has published numerous articles on sentencing and criminal justice, and is a co-editor of Sentencing, Sanctions, and Corrections: Law, Policy, and Practice (2d ed., Foundation Press, forthcoming 2002). He can be reached at

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