The Supreme Court's latest avoidance of providing constitutional protection to sentencing factors.

• Author: Hendrix, Julie L.
• Position: Case Note

Harris v. United States, 536 U.S. 545 (2002)

1. INTRODUCTION

   In Harris v. United States, (1) the United States Supreme Court addressed the constitutionality of 18 U.S.C. [section] 924(c)(1)(A)(ii), a federal drug and firearm statute that increases a defendant's minimum sentence by two years based upon a determination that the defendant brandished a firearm. (2) The sharply divided Court concluded that the brandishing of a firearm under [section] 924(c)(1)(A)(ii) is a sentencing factor to be determined by the judge, rather than an element of a separate offense to be found by the jury) The Court held that [section] 924(c)(1)(A)(ii) did not violate the Fifth or Sixth Amendments, which provide certain protections to the criminally accused. (4) Reconciling McMillan v. Pennsylvania (5) with Apprendi v. New Jersey, (6) the Court's plurality opinion reasoned that although a jury must find facts that would extend the defendant's sentence beyond the statutory maximum, a judge alone may find facts that merely increase a minimum sentence because the jury would have already authorized the maximum sentence with its guilty verdict. (7)

   This Note examines several Supreme Court decisions that have defined the respective roles of judges and juries in determining sentencing factors and elements of a criminal offense. Interestingly enough, these prior decisions were also sharply divided. This Note argues that although the Court was correct in finding a distinction between McMillan and Apprendi, the Court erred in failing to overrule McMillan and in holding that the brandishing of a firearm is a sentencing factor to be determined by the judge. In order to simplify the considerations that courts must make in light of the Supreme Court precedent, the Court should have created a bright-line rule requiring any fact (other than a prior conviction) that a statute links to a variation in the defendant's sentence to be treated as an element of the offense. To comply with constitutional protections, such a fact must be charged in the indictment, submitted to a jury, and proved beyond a reasonable doubt.

2. BACKGROUND

   1. THE FIFTH AND SIXTH AMENDMENT PROTECTIONS

      The Fifth and Sixth Amendments to the United States Constitution provide certain protections to persons accused of a crime. The Fifth Amendment guarantees that "[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury ... nor be deprived of life, liberty, or property, without due process of law[.]" (8) The Sixth Amendment ensures that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed ... and to be informed of the nature and cause of the accusation[.]" (9)

      The Supreme Court has elaborated on these constitutional protections. In Hamling v. United States, (10) the Court stated that a sufficient indictment "contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and ... enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense." (11) Continuing, the Court wrote that "[i]t is generally sufficient that an indictment set forth the offense in the words of the statute itself, as long as 'those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished."' (12) In In re Winship, (13) the Court held that "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." (14)

   2. EVOLUTION OF SENTENCING PRACTICES IN THE UNITED STATES

      A tug-of-war between judge and jury has long existed, from the foundation of English common law to recent cases before the Supreme Court. (15) As early as 1628, it was established common law that juries determined the facts of a case, while judges determined the law. (16) With respect to sentencing practices, however, this distinction between the two roles has been blurred. In the mid-nineteenth century, criminal statutes in the United States evolved from providing fixed sentences to providing for judicial discretion within a sentencing range. (17) Such discretion led to a disparity in sentences among like offenders. (18) This caused many legislatures at the end of the twentieth century to revise their criminal statutes once more to take away some of that discretion. (19) One of the measures used to limit judicial discretion was to assign a particular weight to a specified fact. (20) That fact, for example, could determine a defendant's minimum or maximum sentence, or the fact could add extra years in prison to a defendant's regular sentence. (21) The following cases document some of the ways in which the Supreme Court has handled difficult constitutional questions stemming from these new statures.

      1. Mandatory Minimums: McMillan v. Pennsylvania

         In a 1986 case, McMillan v. Pennsylvania, (22) the Supreme Court examined the constitutionality of Pennsylvania's Mandatory Minimum Sentencing Act. (23) Under the Act, those who were convicted of particular felonies received a prison sentence of at least rive years if the judge found, by a preponderance of the evidence, that the convicted person "visibly possessed a firearm" while committing the felony. (24) At the other end of the sentencing range, the judge could not impose a sentence that was greater than the maximum permitted for the crime. (25) The act also set forth that visible possession was not an element of the crime and that notice that the state would attempt to show visible possession was not required until after a conviction. (26)

         In a 5-4 decision, (27) the Court held the act constitutional and rejected the argument of four petitioners that visible possession must be proved beyond a reasonable doubt because it is an element of a "new set of upgraded felonies." (28) The Court noted its basic rejection of the idea "that whenever a State links the 'severity of punishment' to 'the presence or absence of an identified fact' the State must prove that fact beyond a reasonable doubt." (29) The Court for the first time referred to such facts as "sentencing factors" (30) and distinguished them from elements, which are "included in the definition of the offense" and must be proved beyond a reasonable doubt. (31) Although the Constitution limits the extent to which states may define crimes and penalties, the act in question did not exceed those limits. (32) Visible possession did not appear to be "a tail which wags the dog of the substantive offense." (33) Rather, the act merely "ups the ante" for defendants by limiting the sentencing judge's discretion to selecting a sentence within the range that would have been available without the factual finding. (34)

         In his dissent, Justice Stevens argued that visible possession is an element to be proved beyond a reasonable doubt "[b]ecause the [act] describes conduct that the Pennsylvania Legislature obviously intended to prohibit, and because it mandates lengthy incarceration for the same." (35) Justice Stevens asserted that "a State may not advance the objectives of its criminal laws at the expense of the accurate factfinding owed to the criminally accused who surfer the risk of nonpersuasion." (36)

         Justice Marshall's dissent, largely in agreement with Justice Stevens, (37) asserted that the majority gave too much deference to the Pennsylvania legislature's statement that visible possession is not an element. (38) The Winship decision requires that the prosecution prove visible possession beyond a reasonable doubt. (39)

      2. An Element in Disguise: Jones v. United States

         In a 1999 case, Jones v. United States, (40) the Supreme Court determined that what superficially appeared to be sentencing factors in a particular federal offense were actually elements of the crime. (41) Jones involved a federal carjacking statute consisting of a main paragraph containing elements of the offense, followed by three clauses establishing maximum sentences. (42) The first clause set the maximum sentence for the offense at fifteen years; the second clause stipulated a twenty-five-year maximum sentence upon the finding of "serious bodily injury," and the third clause stipulated a maximum sentence of life imprisonment upon a finding that death resulted from the offense. (43) As such, the statute in question either defined three different offenses or one offense with three possible maximum sentences, two of which turn on sentencing factors. (44)

         In another 5-4 decision, (45) the Court held that the stature defined three distinct offenses and that the facts on which the sentences were conditioned are considered elements, not sentencing factors. (46) Yet, despite this holding, the Court adhered to its past rejection of the notion that "every fact with a bearing on sentencing must be found by a jury." (47) The Court explained its reasoning as follows. First, although the "look" of the statute suggests that serious bodily injury and death are sentencing factors, the substantial penalties attached to them imply otherwise. (48) Second, Congress seems to have intended serious bodily injury (the fact relevant to the crime at issue in Jones) to be an element of this offense. (49) Although serious bodily injury is used both as a sentencing factor and an element in other federal statutes, in the context of robbery, it is traditionally treated as an element. (50) Model statutes used by Congress in drafting the statute, as well as state statutes, also suggest serious bodily injury is an element. (51) Lastly, the Court should apply the doctrine of constitutional avoidance, interpreting the statute in a way that avoids raising constitutional issues. (52)

         Justice...