Criminal Proceedings to Which the Guarantee Applies
Criminal Proceedings to Which the Guarantee Applies. — Although the Sixth Amendment provision does not differentiate among types of criminal proceedings in which the right to a jury trial is or is not present, the Court has always excluded petty offenses from the guarantee in federal courts, defining the line between petty and serious offenses either by the maximum punishment available70 or by the nature of the offense.71 This line has been adhered to in the application of the Sixth Amendment to the States72 and the Court has now held "that no offense can be deemed 'petty' for purposes of the right to trial by jury where imprisonment for more than six months is authorized."73 A defendant who is prosecuted in a single proceeding for multiple petty offenses, however, does not have a constitutional right to a jury trial, even if the aggregate of sentences authorized for the offense exceeds six months.74
The Court has also made some changes in the meaning attached to the term "criminal proceeding." Previously, it had been applied only to situations in which a person has been accused of an offense by information or presentment.75 Thus, a civil action to collect statutory penalties and punitive damages, because not technically criminal, has been held to implicate no right to jury trial.76 But more recently the Court has held denationalization to be punishment which Congress may not impose without adhering to the guarantees of the Fifth and Sixth Amendments,77 and the same type of analysis could be used with regard to other sanctions. There is, however, no constitutional right to a jury trial in juvenile proceedings, at least in state systems and probably in the federal system as well.78chanrobles-red
70 District of Columbia v. Clawans, 300 U.S. 617 (1937); Schick v. United States, 195 U.S. 65 (1904); Callan v. Wilson, 127 U.S. 540 (1888).
71 District of Columbia v. Colts, 282 U.S. 63 (1930).
72 Duncan v. Louisiana, 391 U.S. 145, 159-62 (1968); Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216 (1968).
73 Baldwin v. New York, 399 U.S. 66, 69 (1970). Justices Black and Douglas would have required a jury trial in all criminal proceedings in which the sanction imposed bears the indicia of criminal punishment. Id. at 74 (concurring); Cheff v. Schnackenberg, 384 U.S. 373, 384, 386 (1966) (dissenting). Chief Justice Burger and Justices Harlan and Stewart objected to setting this limitation at six months for the States, preferring to give them greater leeway. Baldwin, 399 U.S. at 76; Williams v. Florida, 399 U.S. 78, 117, 143 (1970) (dissenting). No jury trial was required when the trial judge suspended sentence and placed defendant on probation for three years. Frank v. United States, 395 U.S. 147 (1969). There is a presumption that offenses carrying a maximum imprisonment of six months or less are "petty," although it is possible that such an offense could be pushed into the "serious" category if the legislature tacks on onerous penalties not involving incarceration. No jury trial is required, however, when the maximum sentence is six months in jail, a fine not to exceed $1,000, a 90-day driver's license suspension, and attendance at an alcohol abuse education course. Blanton v. City of North Las Vegas, 489 U.S. 538, 542-44 (1989) .
74 Lewis v. United States, 518 U.S. 322 (1996).
75 United States v. Zucker, 161 U.S. 475, 481 (1896).
76 Id. See also Oceanic Steam Navigation Co. v. Stranahan, 214 U.S. 320 (1909); Hepner v. United States, 213 U.S. 103 (1909).
77 Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963).
78 McKeiver v. Pennsylvania, 403 U.S. 528 (1971).
In a long line of cases, the Court had held that no constitutional right to jury trial existed in trials of criminal contempt.79 But in Bloom v. Illinois,80 the Court announced that "[o]ur deliberations have convinced us . . . that serious contempts are so nearly like other serious crimes that they are subject to the jury trial provisions of the Constitution . . . and that the traditional rule is constitutionally infirm insofar as it permits other than petty contempts to be tried without honoring a demand for a jury trial."
Within the context of a criminal trial, what factual issues are submitted to the jury has traditionally been determined by whether the fact to be established is an element of a crime or instead is a sentencing factor. Under this approach, the right to a jury extends to the finding of all facts establishing the elements of a crime, and sentencing factors may be evaluated by a judge. Evaluating the issue primarily under the Fourteenth Amendment’s Due Process Clause, the Court initially deferred to Congress and the states on this issue, allowing them broad leeway in determining which facts are elements of a crime and which are sentencing factors.1
Breaking with this tradition, however, the Court in Apprendi v. New Jersey held that a sentencing factor cannot be used to increase the maximum penalty imposed for the underlying crime.2 “The relevant inquiry is one not of form, but of effect.” 3 Apprendi had been convicted of a crime punishable by imprisonment for no more than ten years, but had been sentenced to 12 years based on a judge’s findings, by a preponderance of the evidence, that enhancement grounds existed under the state’s hate crimes law. “[A]ny fact that increases the penalty for a crime beyond the prescribed statutory maximum,” the Court concluded, “must be submitted to a jury, and proved beyond a reasonable doubt.” 4 The one exception the Apprendi Court recognized was for sentencing enhancements based on recidivism.5 Subsequently, the Court refused to apply Apprendi’s principles to judicial factfinding that supports imposition of mandatory minimum sentences.6
Apprendi’s importance soon became evident as the Court applied its reasoning in other situations. In Ring v. Arizona,7 the Court, overruling precedent,8 applied Apprendi to invalidate an Arizona law that authorized imposition of the death penalty only if the judge made a factual determination as to the existence of any of several aggravating factors. Although Arizona required that the judge’s findings as to aggravating factors be made beyond a reasonable doubt, and not merely by a preponderance of the evidence, the Court ruled that those findings must be made by a jury.9
In Blakely v. Washington,10 the Court sent shockwaves through federal as well as state sentencing systems when it applied Apprendi to invalidate a sentence imposed under Washington State’s sentencing statute. Blakely, who plead guilty to an offense for which the “standard range” under the state’s sentencing law was 49 to 53 months, was sentenced to 90 months based on the judge’s determination—not derived from facts admitted in the guilty plea—that the offense had been committed with “deliberate cruelty,” a basis for an “upward departure” under the statute. The 90–month sentence was thus within a statutory maximum, but the Court made “clear . . . that the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant,” i.e., “not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” 11 This approach brings into question sentencing under other states’ laws and in addition under the federal Sentencing Guidelines. Blakely is already generating litigation, and may also prompt legislative responses.12 Much will depend upon whether the Court, in applying Blakely, attempts to limit its reach.13chanrobles-red
79 E.g., Green v. United States, 356 U.S. 165, 183-87 (1958), and cases cited; United States v. Burnett, 376 U.S. 681, 692-700 (1964), and cases cited. A Court plurality in Cheff v. Schnackenberg, 384 U.S. 373 (1966), held, asserting the Court's supervisory power over the lower federal courts, that criminal contempt sentences in excess of six months imprisonment could not be imposed without a jury trial or adequate waiver.
80 391 U.S. 194, 198 (1968). Justices Harlan and Stewart dissented. Id. at 215. As in other cases, the Court drew the line between serious and petty offenses at six months, but because, unlike other offenses, no maximum punishments are usually provided for contempts it indicated the actual penalty imposed should be looked to. Id. at 211. And see Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216 (1968). The distinction between criminal and civil contempt may be somewhat more elusive. International Union, UMW v. Bagwell, 512 U.S. 821 (1994) (fines levied on the union were criminal in nature where the conduct did not occur in the court's presence, the court's injunction required compliance with an entire code of conduct, and the fines assessed were not compensatory).
1 For instance, the Court held that whether a defendant “visibly possessed a gun” during a crime may be designated by a state as a sentencing factor, and determined by a judge based on the preponderance of evidence. McMillan v. Pennsylvania, 477 U.S. 79 (1986). After resolving the issue under the Due Process Clause, the Court dismissed the Sixth Amendment jury trial claim as “merit[ing] little discussion.” Id. at 93. For more on the due process issue, see the discussion in the main text under “Proof, Burden of Proof, and Presumptions.”
2 530 U.S. 466, 490 (2000).
3 530 U.S. at 494. “[M]erely because the state legislature placed its hate crime sentence enhancer within the sentencing provisions of the criminal code does not mean that the finding of a biased purpose to intimidate is not an essential element of the offense.” Id. at 495 (internal quotation omitted).
4 530 U.S. at 490.
5 530 U.S. at 490. Enhancement of sentences for repeat offenders is traditionally considered a part of sentencing, and a judge may find the existence of previous valid convictions even if the result is a significant increase in the maximum sentence available. Almendarez-Torres v. United States, 523 U.S. 224 (1998) (deported alien reentering the United States is subject to a maximum sentence of two years, but upon proof of a felony record, is subject to a maximum of twenty years). See also Parke v. Raley, 506 U.S. 20 (1992) (where prosecutor has the burden of establishing a prior conviction, a defendant can be required to bear the burden of challenging the validity of such a conviction).
6 Prior to its decision in Apprendi, the Court had held that factors determinative of minimum sentences could be decided by a judge. McMillan v. Pennsylvania, 477 U.S. 79 (1986). Although the vitality of McMillan was put in doubt by Apprendi, McMillan was subsequently reaffirmed in Harris v. United States, 536 U.S. 545, 568–69 (2002). Five Justices in Harris thought that factfinding required for imposition of mandatory minimums fell within Apprendi’s reasoning, but one of the five, Justice Breyer, concurred in the judgment on practical grounds despite his recognition that McMillan was not “easily” distinguishable “in terms of logic.” 536 U.S. at 569. Justice Thomas’s dissenting opinion, id. at 572, joined by Justices Stevens, Souter, and Ginsburg, elaborated on the logical inconsistency, and suggested that the Court’s deference to Congress’ choice to treat mandatory minimums as sentencing factors made avoidance of Apprendi a matter of “clever statutory drafting.” Id. at 579.
7 536 U.S. 584 (2002).
8 Walton v. Arizona, 497 U.S. 639 (1990). The Court’s decision in Ring also appears to overrule a number of previous decisions on the same issue, such as Spaziano v. Florida, 468 U.S. 447 (1984), and Hildwin v. Florida, 490 U.S. 638, 640– 41 (1989) (per curiam), and undercuts the reasoning of another. See Clemons v. Mississippi, 494 U.S. 738 (1990) (appellate court may reweigh aggravating and mitigating factors and uphold imposition of death penalty even though jury relied on an invalid aggravating factor).
9 “Because Arizona’s enumerated aggravating factors operate as ‘the functional equivalent of an element of a greater offense,’ . . . the Sixth Amendment requires that they be found by a jury.” 536 U.S. at 609. The Court rejected Arizona’s request that it recognize an exception for capital sentencing in order not to interfere with elaborate sentencing procedures designed to comply with the Eighth Amendment. Id. at 605–07.
10 124 S. Ct. 2531 (2004).
11 124 S. Ct. at 2537 (emphasis original).
12 Blakely-related developments may be followed at http://sentencing.typepad.com (November 2004).
13 The Court has agreed to review two decisions raising issues under the Sentencing Guidelines. United States v. Booker, 375 F.3d 508 (7th Cir. 2004), and United States v. Fanfan, 2004 WL 1723113 (D. Me. 2004). The cases, 04–104 and 04–105, respectively, were argued on October 4, 2004.
