Petty offenses, serious consequences: multiple petty offenses and the Sixth Amendment right to jury trial.

• Author: Butler, Jeff E.
• Position: Case Note

We cannot exclude recognition of a scale of moral values according to

which some offenses are heinous and some are not. . . . To the discriminating

judgment there is also a difference between a maximum of ten

days in jail and the risk of five years' imprisonment. What about

three months? What about six months? Here we reach the everlasting

enigma in law and in life: When is far too far?(1)

Although the Sixth Amendment guarantees the right to jury trial for all criminal defendants,(2) the Supreme Court long has held that certain criminal offenses are not serious enough to trigger this right.(3) Since petty(4) offenses such as traffic violations and small-time misdemeanors are not worth the public expense of empaneling a jury, the Court has held that these offenses may be tried before a judge without violating the Sixth Amendment. The existence of this "petty-offense exception" to the right to jury trial never has been seriously challenged,(5) but the scope of the exception repeatedly has been the subject of judicial scrutiny.

In Blanton v. City of North Las Vegas,(6) the Supreme Court set forth the definitive standard for distinguishing petty offenses from serious crimes.(7) The benchmark used by the Court is the maximum prison term assigned to each offense by the legislature. Where the penalty exceeds six months' imprisonment, the offense is serious enough to trigger the right to jury trial. Where the penalty is six months imprisonment or less, there is a strong presumption that the offense is petty; therefore, a defendant accused of that offense has no Sixth Amendment right to jury trial.

The Blanton decision, however, provides little guidance in a case where multiple offenses, each of which otherwise would be considered petty, are joined together in a single trial. In such a case, no individual offense would have a statutory penalty of more than six months' imprisonment, but a conviction on all charges could expose the defendant to a lengthy prison term without the opportunity to invoke the procedural safeguards of a jury trial.(8) Lower courts have responded to the problem of applying the Blanton standard to multiple petty offenses in three different ways. Some courts apply the standard to each offense individually, regardless of whether other offenses are joined on the same charging instrument.(9) Others add up the possible penalties for all joined offenses and assume that the right to jury trial exists whenever the six-month limit is exceeded by the aggregate potential penalty.(10) Still others refuse requests for jury trial unless the sentence imposed for all offenses in fact will exceed six months' imprisonment.(11)

This Note argues that a criminal defendant accused of multiple offenses has no Sixth Amendment right to jury trial unless one or more of the offenses -- considered individually -- is serious under the Blanton standard. Part I explores one principal that pervades the Supreme Court jurisprudence regarding the petty-offense exception: community preferences determine whether a criminal charge is petty or serious. The Court measures community preferences by looking to the maximum penalty set by the legislature; if no statutory penalty exists, then the Court uses the sentence imposed by the judge as a substitute. Part II argues that, for multiple petty offenses, the Blanton standard should be applied to each offense individually because this is the only approach consistent with the Court's petty-offense-exception jurisprudence. Therefore, this Note concludes that multiple petty offenses do not trigger the Sixth Amendment right to jury trial.

1. WHAT MAKES A PETTY OFFENSE PETTY?

   The Supreme Court has offered several principles for distinguishing petty offenses from serious crimes. At first inspection, these principles may seem contradictory. This Part argues, however, that careful examination of the Court's decisions reveals a hierarchy among them. Section I.A explores the fundamental principle that community preferences determine whether an offense is petty or serious and argues that the consequences for a particular defendant should not determine whether an offense is petty or serious. Section I.B asserts that the maximum penalty set by the legislature for criminal offenses is the best indicator of community preferences. Section I.C argues that, absent a maximum penalty set by the legislature, the sentence imposed by the judge is the second-best indicator of community preferences.

   1. Community Preferences

      The principle that community preferences(12) determine whether a criminal charge is petty or serious recurs throughout the Supreme Court's petty-offense-exception jurisprudence. The Court first recognized the connection between community preferences and the petty-offense exception in District of Columbia v. Clawans.(13) Since that decision, the Court frequently has reiterated the need to link the application of the petty-offense exception to community preferences.(14)

      This principle follows directly from the need for efficient allocation of the right to jury trial. The petty-offense exception exists because this right is too expensive for the public to finance in every criminal prosecution. Efficient allocation of this scarce resource demands that the right to jury trial be reserved for defendants accused of crimes "serious" enough to merit expensive procedural safegguards.(15) Because the public bears the cost of conducting jury trials, the public also should decide where to draw the line between petty and serious crimes.

      The principle that community preferences determine whether a criminal offense is petty or serious has an important corollary: consequences for individual defendants should not determine whether charges trigger the right to jury trial. Deference to community preferences follows logically from the need for efficiency in allocating the scarce right to jury trial. No such justification exists for conditioning this right on the consequences facing individual defendants. A "serious" consequence to one defendant may be a trivial imposition on another.(16) Therefore, if the seriousness of an offense or set of offenses is determined according to how "serious" individual defendants view a potential sentence, the right to jury trial will be allocated haphazardly -- wasted on some defendants and denied unjustly to others.

      The Supreme Court has endorsed this corollary almost as frequently as it has endorsed the principle itself. In Clawans, the Court stated that the sympathy of a judge for a particular defendant should carry no weight in deciding whether to allocate the right to jury trial.(17) In Codispoti v. Pennsylvania,(18) the Court stated specifically that the threat of a lengthy prison sentence alone is not sufficient to trigger the right to jury trial. In both Blanton v. City of North Las Vegas and Baldwin v. New York, the Court recognized that a defendant sentenced to six months' imprisonment is unlikely to view this sentence as a "petty" consequence but nevertheless endorsed the rule that a six-month sentence does not trigger the right to jury trial.(19) Indeed, the strict six-month rule in Blanton itself contradicts any notion that consequences to the defendant should be weighed in deciding whether an offense is petty or serious.

      This corollary also finds support in the history of the petty-offense exception. The exception evolved from the practice in England and the American colonies of denying the right to jury trial for certain offenses recognized as "petty" by the legislature.(20) When the Constitution was adopted, courts assumed that these common law exceptions were incorporated into the Sixth Amendment.(21) The application of these exceptions depended entirely on, statutory dictates and common law precedent, not on the consequences facing a particular defendant. Indeed, many of the offenses considered "petty" at common law carried penalties that would be considered "serious" by today's standards.(22)

   2. The Maximum Statutory Penalty

      The Supreme Court repeatedly has recognized that the best measure of community preferences concerning a criminal offense is the maximum penalty(23) Set by the legislature.(24) The assumptions underlying this rule are that the legislature is in the best position to gauge societal preferences(25) and that the legislature fixes the maximum penalty for an offense based on how "serious" society regards the offense.(26) The maximum statutory penalty, therefore, is relevant to the allocation of the right to jury trial because there is a logical relationship between the statutory penalty and community preferences.(27)

      The practice of looking to the maximum statutory penalty to determine whether this right attaches is a relatively recent innovation. Early Supreme Court cases followed the haphazard approach of distinguishing between petty and serious offenses by reference to English common law.(28) Subsequent decisions modified this approach to avoid dependence on murky common law precedents. In District of Columbia v. Clawans,(29) the Court held that the severity of the potential penalty could transform an offense considered petty at common law into a serious offense.(30) Thus, the Court departed from mechanical adherence to common law precedent in determining whether an offense was petty or serious.

      More recent Supreme Court decisions have abandoned entirely the use of common law precedent to distinguish between petty and serious offenses. In Duncan v. Louisiana,(31) the Court concluded that the maximum statutory penalty alone may indicate that an offense is serious, thus triggering the right to jury trial. Justice White wrote, "the penalty authorized for a particular crime is of major relevance in determining whether it is serious or not and may in itself, if severe enough, subject the trial to the mandates of the Sixth Amendment."(32) Subsequent decisions interpreting the petty-offense exception cite Duncan for the proposition that the...