Judicial fact-finding and sentence enhancements in a world of guilty pleas.

• Author: Bibas, Stephanos

"Criminal procedure is, basically, a subset of constitutional law,"(1) according to the reigning academic orthodoxy. Preoccupied with these lofty pretensions, criminal procedure scholars do not deign to integrate their field with its siblings, substantive criminal law and especially sentencing. Furthermore, the reigning academic orthodoxy is preoccupied with jury trials, making them the center of attention and devoting countless articles to them.(2)

This Article challenges and undermines the orthodox approach, exposing its inadequacies. The vehicle for this critique is a case study of an academic proposal that the Supreme Court recently made into law. In recent years, many commentators have proposed variants of what I call "the elements rule." The elements rule holds that any fact that increases a defendant's statutory maximum sentence must be an element of the offense. These facts must therefore be charged in an indictment and proved to a jury beyond a reasonable doubt.(3)

Many jurisdictions had allowed judges to find these facts by a preponderance of the evidence. But in a series of cases culminating last June, the Supreme Court overturned this settled practice. In Apprendi v. New Jersey, the Court adopted the elements rule.(4) It carved out an exception for recidivism, and it did not apply the indictment requirement to state cases. With these exceptions, all facts that increase statutory maxima must now be charged in indictments and proved to juries beyond a reasonable doubt.(5)

At first blush, the elements rule seems favorable to defendants. It limits sentence enhancements, safeguards jury fact-finding against judicial encroachment, and warns defendants of the sentence enhancements they will face. Thus, one might applaud this rule as a counterweight to harsh sentence enhancements, a victory for defendants' constitutional rights. For similar reasons, almost every commentator who has considered the elements rule has endorsed some form of it.(6) On the other hand, the dissent pointed out that the rule will hurt defendants at trial by putting inflammatory evidence and inconsistent defenses before juries.(7)

These ways of looking at the elements rule, however, assume that jury trials are the norm. The thesis of this Article is that the Court and commentators reached the wrong answer because they asked the wrong question. They looked only at the few defendants who go to trial, instead of considering that the vast majority plead guilty. We now live in a world of guilty pleas, not trials, and in this world the elements rule will have counterintuitive and perverse results. Ultimately, this Article concludes, Apprendi is symptomatic of criminal procedure's preoccupation with jury trials at the expense of the real world of guilty pleas and sentencing.

In the real world, the elements rule will hurt many of the defendants it purports to help by undermining the procedural values it purports to safeguard. First, the elements rule in effect deprives many defendants of sentencing hearings, the only hearings they were likely to have. By making important factual disputes elements of crimes, it forces defendants to surrender sentencing issues such as drug quantity when they plead guilty. Because for many defendants going to trial is not a desirable option, they are left without any real hearings at all.(8) Second, the elements rule chops up crimes and creates more statutory maxima, which permits more arbitrariness. It gives prosecutors more opportunities in plea bargaining to cap the sentences of favored defendants by charging them with offenses with low statutory maxima. Defendants whom prosecutors dislike, in contrast, will face unequal, harsher treatment.(9) Third, the elements rule reduces the role of the community's conscience. The Jury Clauses were meant to ensure a democratic, populist check on the administration of justice. The elements rule, however, leaves the power of sentencing commissions in place while making it much harder for democratic legislatures to guide this power. Thus, the rule will give unchecked, unguided, undemocratic power to unelected sentencing commissions.(10) Fourth, the rule is not tailored to give defendants the notice they need before they plead guilty, namely, notice of the maximum sentences they face.(11)

What the Court should have done instead is to translate the Constitution's values into the world of guilty pleas. The Due Process and Equal Protection Clauses check arbitrariness and promote equal treatment. The Due Process Clauses also guarantee notice and an opportunity to be heard. The Confrontation and Compulsory Process Clauses prescribe procedures for these hearings. The Grand Jury and Notice Clauses give notice to defendants of the charges they face. And the Grand and Petit Jury Clauses check arbitrariness and give voice to the conscience of the community. We must implement these procedural values within our current legal landscape of guilty pleas and sentencing. Asking the question this way leads to different solutions, such as notice of sentence enhancements before defendants plead guilty and procedural protections at sentencing.(12)

Part I of this Article traces the evolution of the Supreme Court's doctrine on elements of crimes, culminating in Apprendi. Part II critiques the Court's and commentators' reasoning on their own terms. Section II.A contends that the history on which the Court relies is inadequate to support its sweeping rule. Section II.B discusses the Court's and commentators' concerns with preventing the erosion of jury trials. It shows that the elements rule does little to fix this slippery slope because the rule is so easy to evade. Section II.C argues that while notice to defendants is a worthy goal, the rule is not well tailored to that goal. Section II.D concludes that the elements rule will cause problems at trial and on habeas corpus. The law's obsession with trials, however, caused the majority, dissenters, and commentators to overlook the much bigger problems with guilty pleas and sentencing.

The casual reader may wish to skip Parts I and II and go directly to Part III. Part III analyzes the elements rule in the real world of guilty pleas. Section III. A argues that, in practice, the rule is likely to undercut many of the procedural values it purports to uphold. It will deprive defendants of important sentencing issues, promote arbitrariness by prosecutors, and reduce the role of the conscience of the community. While the rule addresses legitimate concerns, such as the need for notice, it is not tailored to the real world of guilty pleas. Section III.B builds an alternative approach for this real world. Subsection III.B.1 proposes informing defendants of their enhanced maximum sentences before they plead guilty, thus extending the Court's guilty-plea case law. Subsection III.B.2 suggests more procedural protections at sentencing, including compulsory process and some confrontation and cross-examination. Subsection III.B.3 proposes limiting the rigid elements rule to (1) historic elements of common-law crimes, and (2) facts that turn misdemeanors into felonies. These measures would address the Court's and commentators' core concerns without wreaking havoc in the real world of guilty pleas and sentencing. This Article concludes by discussing how criminal procedure scholarship should move beyond its preoccupation with trials at the expense of considering guilty pleas and sentencing.

1. THE SUPREME COURT'S CASE LAW ON ELEMENTS OF CRIMES

   Over the last three decades, the Supreme Court has struggled to explain which facts are elements of crimes and which are sentencing factors. Elements must be charged in an indictment and proved beyond a reasonable doubt to a jury.(13) Sentencing factors, in contrast, are entrusted to the sentencing judge under a lower standard of proof.(14)

   The Court's case law in this field, however, has hardly been a model of clarity. On the one hand, the Court has repeatedly recognized that legislatures have historically had broad latitude to define crimes and punishments.(15) It has further stressed that judges have historically had broad latitude to find facts and exercise discretion at sentencing.(16) On the other hand, it has said there must be some constitutional limits on the legislative prerogative to define elements.(17) Until Apprendi, the Court had never clearly enunciated what those limits were.

   Section I.A discusses the Court's early cases on burdens of proof and elements in the context of affirmative defenses: In re Winship,(18) Mullaney v. Wilbur,(19) and Patterson v. New York.(20) Section I.B addresses McMillan v. Pennsylvania, the first case in which the Court considered sentence enhancements.(21) Section I.C analyzes Almendarez-Torres v. United States,(22) in which the Court rejected the elements rule three years ago. Section I.D notes Monge v. California, which again rejected the elements rule.(23) Section I.E describes the Court's sea change in Jones v. United States,(24) and Section I.F surveys Apprendi.

   1. Burdens of Proof, Elements, and Affirmative Defenses

      The Court's first cases on elements of crimes mentioned them in the context of burdens of proof. In Winship, the Court held that the Constitution requires proof beyond a reasonable doubt of "`every fact necessary to constitute the crime charged.'"(25) Because convictions bring such enormous losses of liberty and stigma, the Court reasoned, the government should bear the risk of error.(26) Moreover, the criminal law's moral force depends on the community's respect and confidence that it is not condemning the innocent. To prevent doubts about convicting the innocent, the law insists upon proof beyond a reasonable doubt.(27) The Court said nothing, however, about how to determine what is a "`fact necessary to constitute the crime charged."(28)

      The Court first tried to define elements in Mullaney v. Wilbur.(29) Maine law defined unlawful killings with...