When an Offense Is Not an Offense: Rethinking the Supreme Court's Reasonable Doubt Jurisprudence

• Publication year: 2022

44 Creighton L. Rev. 647. WHEN AN OFFENSE IS NOT AN OFFENSE: RETHINKING THE SUPREME COURT'S REASONABLE DOUBT JURISPRUDENCE

WHEN AN OFFENSE IS NOT AN OFFENSE: RETHINKING THE SUPREME COURT'S REASONABLE DOUBT JURISPRUDENCE

Luis E. Cmesa(fn*)

TABLE OF CONTENTS

INTRODUCTION.......................................... 649

I. THE SUPREME COURT'S CONFLATION OF

THE OFFENSE/DEFENSE DISTINCTION.......... 654

A.The Common Law Definition of Murder

From Coke to the Maine Penal Code.......... 655

B.Unraveling the Mullaney/Patterson Riddle .. 656

1.The Problem................................. 656

2.The Mullaney Case.......................... 657

3.The Supreme Court's Mullaney Opinion and the "Impact on Punishment" Test for Determining What Counts as an Element of the Offense .................................. 658

4.Mullaney after Patterson v. New York: The Death of the "Impact on Punishment" Test.... 660

II. RESURRECTING THE "IMPACT ON PUNISHMENT" TEST: APPRENDI V. NEW JERSEY AND ITS PROGENY...................... 663

A.The Beginning: Apprendi v. New Jersey........ 663

B.ApprendIs Progeny ............................ 665

C.The Apprendi-Patterson Riddle.............. 666

III. DEFINING CRIMINAL OFFENSES AND THE COHERENCE OF THE SUPREME COURT'S APPROACH TO THE OFFENSE/DEFENSE/ SENTENCING FACTOR TRISTINCTION ........... 668

A.Formalistic Definition of "Offense"........... 669

1.The Approach ............................... 669

2.The Compatibility of the "Formalistic Approach" with Supreme Court Jurisprudence............................... 672

B. An Offense as a Basic Wrong.................. 673

1.The Approach ............................... 673

2.The Compatibility of the "Basic Wrong" Approach to Defining Criminal Offenses

with Supreme Court Jurisprudence........... 678

c.The "Negative Elements of the Offense" Approach to Defining Offenses................ 678

1.The Approach ............................... 678

2.The Compatibility of the "Negative Elements of the Offense" Approach to Defining Criminal Offenses with Supreme

Court Jurisprudence ......................... 683

d.The "Comprehensive" Approach to Defining Criminal Offenses............................. 683

1.The Approach ............................... 683

2.The Compatibility of the "Comprehensive" Approach to Defining Criminal Offenses

with Supreme Court Jurisprudence........... 685

e.Summary: The Supreme Court's Approach to Defining Criminal Offenses is Incoherent .... 685

iv.a possible diagnosis for the supreme court's schizophrenia: conflating the due process and jury trial guarantees..................................... 688

a.Conflation..................................... 688

b.The Undesirability of the Conflation......... 691

v. the "unlawful act" approach to the beyond a reasonable doubt doctrine .... 693

a.Rejection of the Formalistic Approach to Defining Criminal Offenses ................... 693

b.The "Unlawful Act" Approach to Defining Criminal Offenses............................. 695

c.The Implications of the "Unlawful Act" Approach to Defining Criminal Offenses...... 697

1.Excuse Defenses and the "Unlawful Act"

Approach to Defining Criminal Offenses ...... 697

2.Sentencing Factors and the "Unlawful Act" Approach to Defining Criminal Offenses...... 700

d.Overhauling the Supreme Court's "Beyond

a Reasonable Doubt" Jurisprudence........... 700

conclusion............................................. 702

INTRODUCTION

Few legal canons are as well known to the general public as the requirement that the prosecution prove the culpability of the accused beyond a reasonable doubt. The popularity of the doctrine is such that movies,(fn1) books,(fn2) record albums,(fn3) and even a radio show(fn4) have been named in its honor. Although the roots of the doctrine can be traced back to the formative years of our Nation,(fn5) the Supreme Court of the United States crystallized it as binding precedent in the landmark decision of In re Winship(fn6) thirty-eight years ago. Despite the fact that the Court has had various opportunities to flesh out the contours of the doctrine, the meaning and scope of the doctrine remain unclear.

This Article will argue that the doctrine's lack of clarity is due to the fact that although the Court has repeatedly held that the scope of Winship depends on whether the prosecution is attempting to prove an element of the offense, a defense, or a sentencing factor, the Court has failed to put forth a theory that allows it to coherently distinguish between these three elements of criminal responsibility. The Court's confusing approach to the offense/defense/sentencing factor tristinc-tion has created a host of conceptual perplexities. Chief amongst these perplexities is the Court's conclusion that justification and excuse defenses do not trigger Winship protection, whereas certain sentencing factors do. The concurrence or absence of justification or excuse affects the defendant's guilt in a much more dramatic way than the presence of a mere sentencing factor. After all, proof of a justification or excuse generates a full-blown acquittal. In contrast, proof of the absence of an aggravating factor merely reduces the amount of punishment that a court may impose on the defendant.

Therefore, it was odd for the Court to conclude, as it did in Apprendi v. New Jersey,(fn7) that aggravating factors should be proved beyond a reasonable doubt because they affect the defendant's degree of culpability, while simultaneously holding that justifications such as self-defense (Martin v. Ohio(fn8) ) and excuses such as insanity (Leland v. Oregon(fn9) ) do not have to be disproved in the same manner. In light of such conflicting statements, the Court should either abandon its post-Apprendi insistence that aggravating factors trigger Winship protections because they affect the defendant's culpability, or revisit its decision to allow the State to shift the burden of proof with regards to matters of justification and excuse. This Article contends that the Court ought to do both.

Part I tracks the confusion regarding the offense/defense/sentencing factor tristinction back to the Mullaney v. Wilbur(fn10) and Patterson v. New York(fn11) cases. More specifically, this Article argues that the Court in Mullaney looked beyond the statutory definition of the crime in order to define what counts as an element of the offense, whereas in Patterson the Court determined what amounted to an offense element by affording great deference to the way in which the legislature defined the crime. Although the tension between these two approaches is apparent, this Article contends that the weight of post-Mullaney authority suggests that the Court presently favors Patterson's formalis-tic "legislative deference" approach to distinguishing offenses from defenses.

Part II explains how the Court's sentencing factor jurisprudence has contributed to further muddying the waters of the Winship doctrine. In Apprendi, the Court initially contended that sentencing factors that increase punishment beyond the statutorily prescribed maximum for the crime trigger Winship protections because they affect the defendant's "degree of guilt or culpability."(fn12) However, the Court later stated in the same opinion that the aggravating factor had to be proven by the prosecution beyond a reasonable doubt because it constituted a "core" offense element.(fn13) If it were true, as the Court initially suggested, that factors significantly affecting the defendant's guilt must be proven beyond a reasonable doubt, then the Court ought to re-examine its prior decisions to allow the State to shift the burdens of proving self-defense,(fn14) extreme emotional disturbance,(fn15) insanity,(fn16) and duress(fn17) to the defendant. Surely all of these claims affect the defendant's degree of culpability more than the aggravating factor in Apprendi. On the other hand, if aggravating factors trigger Winship protections merely because they constitute de facto elements of the offense, the Court would have no need to revisit previous jurisprudence because the pre-Apprendi line of cases have all been premised on the essential distinction between offense and defense. However, the Court would need to elaborate a workable conception of what elements should count as "core offense elements" that is compatible with both its pre- and post-Apprendi jurisprudence.

Part III contends that no coherent conception of what amounts to a "core offense element" can be surmised from the Court's "beyond a reasonable doubt" jurisprudence. The reason for this lies in the fact that the Court premised pre-Apprendi case law on a formalistic definition of what amounts to an offense, whereas the Court grounded post-Apprendi case law on a substantive approach to the concept.

The leitmotif of pre-Apprendi jurisprudence was an insistence in affording deference to legislative determinations of what factors represent "elements of an offense." The Court's assertion in McMillan v. Pennsylvania(fn18) that the "state legislature's definition of the elements of the offense is usually dispositive" illustrates this legislative deference model.(fn19) The position championed in such cases stands in stark contrast to the substantive approach advanced by the Court in its post-Apprendi "beyond a reasonable doubt"...