SEATTLE UNIVERSITY LAW REVIEWVolume 22, No. 4SPRING 1999
ARTICLES
Searching for the "Tail of the Dog": Finding "Elements" of Crimes in the Wake of McMillan v. Pennsylvania
Mark D. Knoll(fn*)
Richard G. Singer(fn**)
I. Introduction
An axiom of Anglo-American jurisprudence held that whenever the statutorily permissible punishment varied according to the presence or absence of an identifiable fact (or "element") found within a statute, that fact was required to be plead in the indictment and proved by the required standard of proof, which was usually beyond a reasonable doubt.(fn1) This long-held notion, given constitutional protection by the United States Supreme Court in In re Winship,(fn2) was dealt what now appears to have been a near-fatal blow in the watershed case of McMillan v. Pennsylvania.(fn3) In McMillan,(fn4) the United States Supreme Court upheld a Pennsylvania statute that imposed a mandatory minimum sentence of five years for defendants who visibly possessed a firearm during the commission of a predicate offense.(fn5) The statute specifically provided that such possession "shall not be an element of the crime," that notice to the defendant of the State's intention to pursue the mandatory minimum penalty under the statute "shall not be required prior to conviction" (but was required before sentencing), and that the facts which would be necessary to sentence the defendant to the mandatory minimum could be established by a preponderance of the evidence.(fn6)
Proving another axiom of American jurisprudence-that "[n]ot every epochal case has come in epochal trappings"(fn7)-McMillan prompted an abstruse, yet revolutionary, change in the way that facts bearing directly on statutorily available punishment are found in criminal cases. McMillan marked the birth of the "sentencing factor,"(fn8) a concept that radically restructured the roles of judge and jury by shifting to the court the ability to make at sentencing, and by a preponderance of the evidence, factual determinations that, prior to McMillan, had to be made by juries, at trial, and beyond a reasonable doubt. McMillan not only restructured the traditional roles of judge and jury; Chief Justice Rehnquist's majority opinion also provided a bit of canine context for courts to use in determining whether a fact at issue is an "element" of an offense or a "sentencing factor." The sentencing factor, according to Rehnquist, was the "tail" of the "dog" and could be determined by a judge so long as the factor did not "wag[] the dog of the substantive offense."(fn9)
Now, some twelve years after the decision, McMillan can be clearly identified as a major turning point in American criminal law. The decision is significant for its retreat from virtually uniform precedent that held that whenever the sovereign sought to punish a defendant, the state had to prove beyond a reasonable doubt every fact that would allow it to impose a punishment within a specified range.(fn10) These facts, which both defined the crime and helped to gradate levels of punishment, were called "elements" of the crime.(fn11)
The reach of McMillan was recently broadened by the Court in Almendarez-Torres v. United States,(fn12) in which the court appeared to hold that even if a sentencing factor dramatically increases the statutorily available punishment, it may still be decided by the judge rather than the jury.(fn13) However, the Court's holding in Almendarez-Torres was cast into doubt less than two weeks later when the Court granted certiorari in Jones v. United States.(fn14) Certiorari was granted in order to decide whether the gradated punishment scheme found in the federal anticarjacking statute(fn15) requires that certain factual findings, such as whether the crime resulted in "serious bodily injury," should be classified as elements of the statute or merely sentencing factors.(fn16) With Jones, the Court has an opportunity both to clarify the reach of-if not overrule-McMillan and to finally set some clear limits on exactly how far the state may go in taking away from the jury those issues which bear directly on punishment.
McMillan's impact on determining what constitutes a crime has been profound. Today, in contrast to pre-McMillan procedure, trial courts, rather than juries, routinely make factual determinations, such as the amounts involved in a drug crime,(fn17) despite the fact that these factual determinations directly and seriously impact the amount of time a convicted person will spend in prison.(fn18) Indeed, following McMillan, courts have embraced the idea that so long as a particular fact is deemed relevant only at sentencing, it may be proved to a judge by a preponderance of the evidence with diminished due process protections and without the protections of the Federal Rules of Evidence.(fn19)
The essential problem Chief Justice Rehnquist's canine metaphor in McMillan presents is that it fails to guide the lower courts in their decisions concerning the following questions: (1) what constitutes an element of the offense?; (2) what distinguishes elements from sentencing factors?; and (3) when does the sentencing factor "tail" actually wag the dog? While prior to McMillan it seemed clear that every fact which authorized a certain punishment within a gradated punishment scheme(fn20) was an element of the offense, today it is not altogether clear which facts are elements as opposed to sentencing factors. Trial courts are now forced to rely upon a post-McMillan framework which looks more to the legislative designation of the particular fact than to whether the fact at issue bears a direct relationship to available punishment. This article will argue that McMillan makes the trial courts' confusion unavoidable, and that the best solution is to reject the trend fostered by McMillan and return to the traditional jury-focused approach. If federalism concerns make adopting this approach too difficult, the Court should use Jones to adopt it not as a matter of constitutional interpretation, but rather as a matter of statutory interpretation applicable solely to the federal criminal code. Since there are in fact no contradictory cases (except Almendarez-Torres), and since none of the pre-McMillan cases spoke of sentencing factors, that path may be easier to follow.(fn21)
Part II of this Article will examine the historical importance of punishment as a litmus test in the common law in finding the elements of an offense. In Part III, the historical approach used by federal courts when value or quantity was at issue will be analyzed in order to round out the pre-McMillan framework. Part IV will discuss the McMillan decision, as well as the post-McMillan regime. Part V will analyze Jones v. United States,(fn22) the case now pending before the Court, in which the Court may have its last chance to correct the error of McMillan and clarify exactly what facts need to be proved to a jury in the twenty-first century and why.
II. Punishment as a Litmus Test in Element Analysis
The link between punishment and the elements of an offense was identified in general terms by Professor Herbert Packer when he wrote: What we mean by "crime" or an "offense" is simply conduct that is forbidden by law and to which consequences, called punishment, will apply on the occurrence of stated conditions and following a stated process. A crime is not merely any conduct forbidden by law; it is forbidden conduct for which punishment is prescribed and which is formally described as a crime by a government agency having the power to do so. . . . But the definition of crime is inescapably tautological. Crime is whatever is formally and authoritatively described as criminal.(fn23)
Historically, those formal and authoritative descriptions of crime were exactly those occurrences, situations, or facts that combined to make up the offense. Facts which constituted the crime itself were called "elements of the offense (crime)" and had to be alleged in the indictment and proved at trial before punishment could be imposed. In 1895, Joel Prentiss Bishop, perhaps the leading nineteenth century authority on criminal law, wrote in his treatise on criminal procedure:[E]very wrongful fact, with each particular modification thereof, which, in law, is required to be taken into the account in determining the punishment upon a finding of guilty, must be alleged in the indictment. . . . This doctrine is fundamental. Originating in natural reason and abstract justice, it has been adopted into the common law and confirmed by our written constitutions.(fn24) Bishop was not alone in finding that these "elements" included those essential facts that amounted to the crime and made available certain punishment. In his early nineteenth century writings on American jurisprudence, John Milton Goodenow summed up the relationship between lawmaking and the infliction of punishment this way: "[M]unicipal law, as a rule of civil conduct, authorising the infliction of human punishment, must be prescribed by the supreme power, in an unequivocal style, defining the offence, directing the tribunal which shall try, and the minister who shall execute."(fn25)
The general rule that every fact which constitutes an aggravation of the offense had to be alleged and proved to a jury beyond a reasonable doubt is reflected in numerous state court opinions(fn26) and...
