From Winship to Apprendi to Booker: constitutional command or constitutional blunder?

• Author: Allen, Ronald J.

INTRODUCTION I. FROM WINSHIP TO BOOKER: AFFIRMATIVE DEFENSE AND PRESUMPTION DEBATES REDUX? II. THE HANDS OF GOVERNMENT ARE ALL OVER THE CRIMINAL JURY'S INFERENTIAL PROCESS A. Judicial Branch B. Legislative Branch C. Executive Branch CONCLUSION INTRODUCTION

The Supreme Court has a remarkable history of blunders and retreats when it comes to the relationship between the Constitution and substantive criminal law, and it is in the process of committing another one, in our view. There are at least eight instances in which the Court has handed down a case with dramatic potential to subvert substantial parts of the criminal law, only to later more or less withdraw from the field:

1. In Robinson v. California, (1) the Court implied that the Constitution permitted the federal courts to patrol the relationship between culpability and punishment and to override legislative judgments about such matters. In only a few years (a typical pattern, as we shall see), in Powell v. Texas, (2) the Court, perhaps recognizing its blunder, (3) converted its wide-ranging opinion about culpability into a narrow opinion about voluntary acts.

2. In a conceptually identical and thus equally misguided foray, the Court implied that the mental element was subject to constitutional regulation in United States v. Dotterweich, (4) only to retreat from that implication in Morissette v. United States (5) and United States v. Park. (6)

3. In 1972, the Court seemed to announce to the world that the death penalty was unconstitutional, (7) only to note in 1976 that reports of its demise were greatly exaggerated. (8)

4. In a series of cases that bear on the subject of this Issue, the Court suggested that the many ways in which the law influences jury deliberations through instructions on inferences and presumptions raised serious constitutional difficulties, (9) only to relegate the entire area to practical insignificance. (10)

5. In a series of cases directly relevant to this Issue, the Court first announced that it was taking seriously the offhand reference in In re Winship (11) that "every fact necessary to constitute the crime with which [the defendant] is charged" (12) has to be proved beyond a reasonable doubt, including the venerable common law affirmative defense of provocation, (13) only to discover two years later that that was not really so if the State substituted an updated but highly similar defense of extreme emotional disturbance. (14) As it turned out, it was "not really so" with a vengeance--even self-defense, which plainly negates culpability, could be made into an affirmative defense, (15) leaving the obvious question of whether anything at all was left of Mullaney, besides the quite curious constitutionalizing of drafting instructions to the effect that "[i]f you want to have the common law defense of provocation, just say so directly rather than accomplishing the identical result through the use of the word 'presume' or its derivatives."

6. Even the drafting lesson of Mullaney and Patterson did not long survive. It seemed to be applied when, in Sandstrom v. Montana, (16) the Court struck down a statute that employed the term "presume," largely because it did apply the term (there being no other obvious reason for the decision (17)). Yet, earlier in the same Term the Court, in Ulster County Court v. Allen, (18) upheld a statute that used the term multiple times--ironically, in a situation where the defendant was more significantly disadvantaged by its use than the defendant in Sandstrom.

7. Solem v. Helm (19) seemed to redeem the promise of Weems v. United States (20) and Rummel v. Estelle (21) that the federal courts were going to begin patrolling the imposition of criminal sentences through the Eighth Amendment proportionality principle, a redemption quickly undone in a series of subsequent cases. (22)

8. Similarly, the Court seemed to suggest in Thompson v. City of Louisville (23) that every criminal case could be converted into a constitutional question of sufficiency of the evidence, but shortly thereafter closed this potentially wide-open door to a very small crack in Jackson v. Virginia. (24)

The obvious explanation for this remarkable pattern is ignorance checked by good sense. The Court collectively is not, and never has been, stocked with individuals possessing substantial experience with the criminal law, (25) an ignorance that obviously could contribute to the otherwise inexplicable evolution of the cases: To wit, they knoweth not what they do. Each of the decisions noted above (with the possible exception of Furman v. Georgia) had the potential to justify large excursions into the substantive criminal law of the states, an area historically within state control, and to convert virtually every criminal trial into a prolific generator of difficult constitutional questions. Even if not stocked with criminal law experts, the Court is almost always well stocked with individuals possessing abundant good sense and refined political judgment, and perhaps this composition explains the fast retreats. As the members of the Court come to learn of the true nature and implications of their various incursions into the substantive criminal law, they look for ways to cabin the damage their less-tutored preliminary decisions might wreak.

One of the more intriguing constitutional questions of the day is whether we are in the midst of another of the Court's cycles of blunder and damage control as it tries to determine the limits of the Apprendi v. New Jersey (26) line of cases. (27) A scientist looking at the situation would have considerable reason to think that this is perhaps so. Not only is there the decisional history of the Court, but remarkably this particular controversy is almost a rerun of the progression from Winship through Mullaney to Patterson, on the one hand, and to Sandstrom and Ulster County Court, on the other. (28) In those cases, the Court took a perfectly defensible original case involving the general requirement of proof beyond reasonable doubt, (29) blew it out of all proportion with dramatic implications for the criminal law, (30) and subsequently had to limit the damage. (31)

The present controversy is almost an exact reflection of the earlier one, with the primary differences being that the Court has replaced as its foci the proof requirement with the requirement of jury decisionmaking (32) and variables that increase, rather than decrease, the potential punishment. Moreover, the denouement of both lines of cases may be eerily reminiscent of each other. The earlier controversy resolved once it became clear that the direction of the cases was inexplicable unless the Court was willing to articulate the scope of the constitutional interest in the substantive criminal law and thus to begin to patrol its boundaries with care. (33) For good historical and practical reasons, the Court declined this invitation to a war with the nation's various legislatures. But the invitation has been reissued, and, if anything, the nation's legislatures have even more tools in their arsenal to deal with this particular encounter. Unless the Court is willing to say that all of its jurisprudence concerning affirmative defenses is mistaken, the present form of the Federal Sentencing Guidelines can simply be replaced with either higher maximums and more robust affirmative defenses, higher maximums and a parole system, or even more simply with higher maximums and sentencing guidelines that permit reductions from the maximum. All the present turmoil thus would reduce, as it did previously, to, at most, statutory drafting lessons. (34)

The interesting question to us is whether the Court will see this, and thus beat a retreat as it has in the past. The most recent cases, Booker and Fanfan, are unclear. The Court both struck down and upheld the Federal Guidelines at the same time. If Congress can give teeth to the meaning of "reasonableness review," and we can see no good reason why it cannot, then in fact the Guidelines will function virtually unchanged. This is indeed the conclusion our hypothetical scientist might draw, but there are two differences between the present controversy and the previous ones. First, this case may not involve judicial ignorance so much as judicial hypocrisy--while some members of the Court talk about protecting jury decisionmaking, the obvious solution to the problem the Court has created is to return to discretionary judicial sentencing. The potential hypocrisy is obvious. And bizarre. Plainly, "discretionary" sentences coupled with appellate review would be constitutional, and thus so too would be the resultant common law of sentencing that would constrain that very discretion. Nowhere has the Court seemed to notice that it is quite difficult if not impossible to distinguish a common law of sentencing from legislatively enacted sentencing guidelines, and it is impossible to distinguish the two with respect to protecting jury decisionmaking.

The second new and unpredictable variable is the peculiar form of "original intent" and its attendant epistemology that Justices Scalia and Thomas are attracted to that may immunize them to some extent from concern about the havoc the Court's decisions might create. Others better qualified than us have elaborated on the constitutional methodology; (35) thus, we will comment solely on its epistemological handmaiden that counsels for a form of the relative plausibility theory to determine the proof rules for constitutional adjudication. (36) The relative plausibility theory has many virtues in the context of private adjudication of disputes, such as likely minimizing the total errors in a system and treating the parties equally. (37) Constitutional adjudication serves a different function, however, one which looks more like scientific decisionmaking than private dispute resolution. There are substantial externalities to erroneous constitutional decisionmaking that...