Never efficient, but always free: how the juvenile adjudication question is the latest sign that Almendarez-Torres v. United States should be overturned.

AuthorGaston, Molly Gulland

"The founders of the American Republic were not prepared to leave [criminal justice] to the state, which is why the jury-trial guarantee was one of the least controversial provisions of the Bill of Rights. It has never been efficient; but it has always been free." (1)

In 1998, the Supreme Court decided in Almendarez-Torres v. United States (2) that a judge, rather than a jury, should decide whether a prior conviction should increase a defendant's sentence. (3) Ever since, a slim majority of the Court has sought to render the Almendarez-Torres holding a narrow exception to the general rule that any fact that increases the maximum sentence for a crime must be charged in the indictment, put before the jury, and proved beyond a reasonable doubt. (4)

The roots of this rule are English common law provisions meant to insulate the individual from an overreaching and over-punitive government. (5) In Apprendi v. New Jersey (6) and cases since, (7) a narrow majority of the Court (8) has signaled a return to the framers' intent that the Sixth Amendment secures this right for United States citizens. However, the Almendarez-Torres exception for prior convictions has remained and has left uncertainty as to how the prior juvenile non-jury adjudications of now-adult criminal defendants should be treated. This Note will argue that the Supreme Court should use the doubt surrounding juvenile non-jury adjudications as a vehicle to overturn Almendarez-Torres and restore consistency to Sixth Amendment jurisprudence.

This Note will first examine the origins of the Sixth Amendment and the modern Supreme Court cases that frame the debate about what discretion should be allotted to the jury, and what discretion should be allotted to the judge. Next, it will describe the origins of the juvenile justice system and the current State and Circuit Court debate about whether juvenile non-jury adjudications can be defined as "prior convictions" for Apprendi purposes. Finally, this Note will suggest that the differing conclusions to which State and Circuit Courts have arrived demonstrate the confusion created by Almendarez-Torres, and will propose that overturning Almendarez-Torres--as a majority of the Court has already supported in dicta (9)--may be the best course for Sixth Amendment jurisprudence.

  1. BACKGROUND

    This Part will trace the American right to a jury from English common law to the present and will examine the recent line of Supreme Court cases concerning what facts must be heard by a jury rather than a judge. Next, it will discuss the different ways in which State and Circuit Courts have tried to apply these cases to the particular problem of juvenile non-jury adjudications and their application to adult sentencing scores.

    1. The Constitutional Right to a Trial by Jury and Its Common Law Origins

      The Sixth Amendment of the United States Constitution guarantees that criminal defendants "shall enjoy the right to a speedy and public trial, by an impartial jury." (10) This right includes the requirement that "the truth of every accusation ... should afterwards be confirmed by the unanimous suffrage of twelve of [the defendant's] equals and neighbours" (11) and that the ultimate jury verdict should be based on proof beyond a reasonable doubt. (12) The right to a jury in the United States is derived from centuries of English common law, and its purpose is "'to guard against a spirit of oppression and tyranny on the part of rulers' and 'as the great bulwark of [our] civil and political liberties.'" (13) Under English law, judges had little sentencing discretion--criminal law prescribed a particular sentence for each offense, and the judge simply imposed that sentence. (14) Thus, juries essentially had control over an individual's sentencing--if jury members judged that the prescribed sentence would be unfair, they could decline to convict the defendant of the connected crime; indeed, popular resistance sometimes took this form--defendants' peers could fight back against perceived government overreaching by acquitting or meting out short sentences to guilty defendants.

      This limit on a judge's discretion has evolved into a modern-day distinction between elements of a crime--which must be put before the jury--and factors relevant only to sentencing that a judge can weigh; today, any indictment must set before the jury each element of a crime that it charges, (15) but it need not do so for sentencing factors. (16) While the right to define sentencing factors historically has been left to the legislature, (17) the Court has grown increasingly wary of legislative measures that merely redefine "the elements that constitute different crimes, characterizing them as factors that bear solely on the extent of punishment." (18)

      Prior to Apprendi, the Court had no clear rule as to how to separate factors from elements. (19) In Apprendi, the majority presented a new, simpler articulation of the difference: an element, as opposed to a factor, is any "fact that is by law the basis for imposing or increasing punishment is an element." (20)

    2. The Jury Right in Supreme Court Jurisprudence

      In a series of cases beginning in the 1990s, the Supreme Court struggled with the difference between elements and factors, created a new, bright line rule--that, other than prior convictions, all sentencing-increasing facts constitute elements (21)--and began to apply it.

      The reason for the prior convictions exception within the bright line rule was the Court's decision in the case Almendarez-Torres v. United States (22) to single out recidivism as a sentencing factor rather than an element. In Almendarez-Torres, the Court upheld as a sentencing factor--and not a separate element or crime--a subsection of a statute that increases the cap on a sentence for a deported alien who returns to the United States, if the deportation was subsequent to a felony conviction, from two years to twenty years. (23) The Court's main reason for defining prior convictions in this way was because of recidivism's role as "a traditional, if not the most traditional" basis for a court to increase a sentence. (24) Justice Scalia, joined by Justices Stevens, Souter, and Ginsburg, dissented strenuously to the majority's opinion, arguing that there "is no rational basis for making recidivism an exception" and that such an action was contrary to common law tradition. (25) This dissent foreshadowed the Court's next holdings, in which Justice Scalia Was able to command a majority and relegate Almendarez-Torres to its current role as the narrow exception, placed in a parenthetical, in the current rule. (26)

      In Jones v. United States, (27) the Court began its movement away from Almendarez-Torres. Striking down as unconstitutional a statute that established higher penalties for carjacking when the offense caused serious bodily injury or death, the Court classified the provisions increasing the punishment as separate crimes that had to have been charged in the indictment, before the jury. (28) In addition, and perhaps most significantly, the Court explained why, as it had claimed in Almendarez-Torres, prior convictions warranted an exception to the rule: "[U]nlike virtually any other consideration used to enlarge the possible penalty for an offense ... a prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees." (29) In short, the Court was saying that the process guaranteeing the original conviction mitigated the need for a later jury to consider it anew.

      In two later cases, Apprendi v. New Jersey (30) and Blakely v. Washington, (31) however, the Court openly repudiated much of Almendarez-Torres and charted course for a far broader reading of the right to a jury. In Apprendi, the Court struck down a New Jersey hate crime statute that allowed for an increased sentence upon a judge's finding that a defendant acted to intimidate. (32) After stating that Almendarez-Torres "represents at best an exceptional departure from the historic practice" of limiting state schemes limiting the right to a jury, (33) the Court stated the present rule: "Other 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." (34) Notably, the Court also called into question its reliance in Almendarez-Torres on recidivism's role as a traditional sentencing factor, writing in Apprendi that the difference between a factor and an element is not "of form, but of effect," (35) and that the punishment cannot be greater than that in line with a jury verdict: "[W]hen the term 'sentence enhancement' is used to describe an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of a greater offense than the one covered by the jury's guilty verdict." (36) Moreover, in his concurrence in Apprendi, Justice Thomas wrote of his "error" in getting lost in the weeds of whether factors were traditional rather than focusing on "the way by which a fact enters into the sentence" and joined the Apprendi majority. (37)

      In Blakely, the Court struck down defendant Blakely's sentence, which a judge had increased beyond the maximum by three years, because the judge believed Blakely had acted with "deliberate cruelty." (38) Here, the Court solidified its Apprendi rule with its definitions of a "statutory maximum," describing it as the sentence a judge can impose without additional findings--that is, "[w]hen a judge inflicts punishment that the jury's verdict alone does not allow, the jury has not found all the facts 'which the law makes essential to the punishment.'" (39) The Court stated that Blakely affirmed Apprendi in part because of "the need to give intelligible content to the right of jury trial." (40)

      The divide between the majority and the dissent in both Apprendi and Blakely is notably one...

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