Amicus Curiae Brief — Monge v. California

BEST AVAILABLE COPY —

BEST AVAILABLE COPY

JOSEPH P. MAZUREK

Attorney General of Montana

Justice Building

215 North Sanders

Helena, MT 59620-1401

DON STENBERG

Attorney General of Nebraska

State Capitol

P.O. Box 98920

Lincoln, NE 68509-8920

FRANKIE SUE DEL PAPA

Attorney General of Nevada

Old Supreme Court Building

100 North Carson Street

Carson City, NV 89701

PETER VERNIERO

Attorney General of New Jersey

Richard J. Hughes

Justice Complex

25 Market Street

CN 080

Trenton, NJ 08625

DENNIS C. VACCO

Attorney General of New York

Department of Law

The Capitol

Albany, NY 12224

MICHAEL F. EASLEY

Attorney General

of North Carolina

Department of Justice

P.O. Box 629

Raleigh, NC 27602-0629

HEIDI HEITKAMP

Attorney General

of North Dakota

State Capitol

600 East Boulevard Avenue

Bismarck, ND 58505-0040

BETTY D. MONTGOMERY

Attorney General of Ohio

30 East Broad Street

Columbus, OH 43266-0410

W. A. DREW EDMONDSON

Attorney General of Oklahoma

State Capitol, Room 112

2300 North Lincoln Boulevard

Oklahoma City, OK 73105

HARDY MYERS

Attorney General of Oregon

Justice Building

1162 Court Street NE

Salem, OR 97310

MIKE FISHER

Attorney General

of Pennsylvania

Strawberry Square

Harrisburg, PA 17120

JEFFREY B. PINE

Attorney General

of Rhode Island

150 South Main Street

Providence, RI 02903

CHARLIE CONDON

Attorney General

of South Carolina

Rembert C. Dennis

Office Building

P.O. Box 11549

Columbia, SC 29211-1549

MARK BARNETT

Attorney General

of South Dakota

500 East Capitol

Pierre, SD 57501-5070

JOHN KNOX WALKUP

Attorney General of Tennessee

500 Charlotte Avenue

Nashville, TN 37243

DAN MORALES

Attorney General of Texas

Capitol Staton

P.O. Box 12548

Austin, TX 78711-2548

QUESTION PRESENTED

Does the Double Jeopardy Clause apply to noncapital

sentencing proceedings that have the hallmarks of a trial on

guilt or innocence?

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...........cccccecceees ill

INTEREST OF THE AMICI CURIAE ................ 2

SUMMARY OF ARGUMENT ...................... 2

SE SOC he sand eto dn baesebhdadeadauecdds 5

1. | THE DOUBLE JEOPARDY CLAUSE DOES NOT

APPLY TO NONCAPITAL SENTENCE

ENHANCEMENT PROCEEDINGS BECAUSE

THEY DO NOT PLACE A DEFENDANT IN

JEOPARDY FOR "AN OFFENSE” AND REJECTION

OF A PRIOR CONVICTION ALLEGATION IS NOT

AN "ACQUITTAL" ...............000eee0e0. 7

A. SENTENCE ENHANCEMENT PROCEEDINGS Do

NoT PLACE A DEFENDANT IN JEOPARDY FOR

, Ree ey nee yar 7

B. REJECTION OF A _ PRIOR CONVICTION

ALLEGATION IS NOT"AN ACQUITTAL” ... 11

II. IF THE DOUBLE JEOPARDY CLAUSE IS TO

APPLY TO SENTENCING AT ALL, IT SHOULD

BE LIMITED TO CAPITAL SENTENCING

A. BULLINGTON WAS BASED, IN LARGE PART,

UPON ITS CAPITAL CONTEXT ........... 16

III.

B.

‘i

THE VALUES UNDERLYING THE DOUBLE

JEOPARDY CLAUSE ARE NOT UNDERMINED

By READJUDICATION OF A PRIOR CONVICTION

pO rrr rr err Pe 19

THE PETITIONER’S "HALLMARKS TEST" Is AN

ILLOGICAL APPLICATION OF BULLINGTON

WHICH ELEVATES FORM OVER

ee cede enhes 23

A "HALLMARKS TEST" WOULD PRODUCE

UNPREDICTABLE AND INCONSISTENT

RESULTS, PENALIZE STATES FOR PROVIDING

PROCEDURAL SAFEGUARDS AT SENTENCING,

AND DISCOURAGE STATES FROM DOING SO IN

PEED Seessevcostcvsnssiescvcscess 25

GED Sc cv cdvcccbvssenevasevéensesgiceces 29

TABLE OF AUTHORITIES

CASES:

Almendarez-Torres v. United States,

ge 6 000-6 60040066 ni 606 canes

Arizona v. Rumsey,

eee

Baldasar v. Illinois,

ED nccdctcovsesceasvice

Barefoot v. Estelle,

463 U.S. 880 (1983) ............ eee eee.

Bullington v. Missouri,

Pe ED Sdccccecveccsvcecess

Burks v. United States,

sc nse cuaucve

Carpenter v. Chapleau,

72 F.3d 1269 (6th Cir.), cert. denied,

SEP EE buncccetevencecconss

Caspari v. Bohlen,

FEO ee TEP GROOT occ cccegecvceccevces

Chaffin v. Stynchcombe,

en cws opebecesdsbwnedsves

Furman v. Georgia,

EE isecebiesdeneeesddene

Gideon v. Wainwright,

PEE cis d sencedeneeseceees

iV

Graham v. West Virginia,

ye Vik © + PP PPrrrerrerrrrererir iris 7

Green v. United States,

; it eo eererrrererr errr yay co 7, 11,20

Gregg v. Georgia,

Pr fil Bf) SP rerrrrrrrerrrirr. 18

In re Winship,

SOFTEE, BGG fb vvdccacbiccctenscevsnceseges 23

Linam v. Griffin,

685 F.2d 369 (10th Cir. 1982), cert. denied,

GIDUD, TRIG GIR ov ccccccvcvccccccccccccves 9, 10

Lockett v. Ohio,

GEOTES, FRO GOGED once cciccccccuccessececses 15,19

McMillan v. Pennsylvania,

GIFs POOH ok ce Becccccncvesessesisveses 7,8

Montgomery v. Bordenkircher,

620 F.2d 127 (6th Cir.), cert. denied,

r,t § of: ee MAN veweees 14

Nichols v. United States,

hit |. f) ) ee rr rrr rrr errr. 8

North Carolina v. Pearce,

; it ie, Fe Peer: Pres era 5,7

Parke v. Raley,

SR ED ob bve sacvedacsswescendceepecets 7

Pennsylvania v. Goldhammer,

SIGE BCD bc vic vtncecccedéwatdvevccsceceum 16

Vv

People v. Levin,

157 Ill. 2d 138, 623 N.E.2d 317 (1993), cert. denied,

SE o's wos voto a dene eae San feas 26

People v. Sailor,

65 N.Y.2d 224, 480 N.E.2d 701, cert. denied,

es SE os waGueu'ev eee eeeeseneodecs 9,14

Poland v. Arizona,

EE in cb bccdcenceevéscaNenawe 9, 12, 16

Sandin v. Conner,

Pe GEE ncceccccccccolcessBeews 24, 27, 28

Strickland v. Washington,

eae ee oP et eae renee 18

Stroud v. United States,

Ee eee A eta d aceeeee ukksaue 5

Tibbs v. Florida,

eu eeh eens 11, 27

United States v. Ball,

EE od Dh vi eushevéeedecesdares 11

United States v. DiFrancesco,

IE 6 wel ic ndwskcnsdvcctdveses passim

United States v. Tateo,

EE obo o's Ubc-ccccwdleécebedebaees 11

Williams v. New York,

ee EE Fic 0d nkcecdleonctnes ceakeuces 15

vi

CONSTITUTIONAL PROVISIONS:

Eigtth Amemdmmemt .... 2... cence cccccccccccccsces 18

PRS 6 gc ccnccccscccepeccscndsvenddeases 2

STATUTES:

SET, Ck, BU, BATH occ sc cccccccccccvcceses 26

REE BERTEAEED cove vecvccccvccecccccesss 25

Rate Fie. GR. BBG occ cicccecsccosccccveccses 25

ee ED vc caccsivectescccivessusned 25

Del. Code Ann. tit. 11, § 4214, § 4215 ............... 25

Pia, Gant. 6 TIS RAID «oc ccc ccccsccccccccens 26

Haw. Rev. Stat. § 706-661, § 706-662, § 706-606.5 ..... 25

ee See SE nok sn ccdecesscawsceuveenes 25, 26

ED 6.6 < ono coc ccseNes cvenenncusesens 25

or. Daw: Giet, GC GGBRED 20 cc cccccccccevccccccccess 25

i i CDs 4 sce boecneeseeennde dart 25, 26

Ries, Gi E.G Bree 0 BON cc ccsecsdeserecewveees 26

Re, Ge Be BOSD 6 ccc scccckuqacedetyeads 25

Mo. Rev. Stat. § 558.016 ...........c.ceeeceeeeeees 25

Vii

N.D. Cent. Code § 12.1-32-09(4) ........000000...... 26

N.Y. Penal Laws § 70.04, § 70.06, § 70.08, § 70.10 ..... 25

Neb. Rev. Stat. §29-2221 ... ccc ccc ccc cece 25

Nev. Rev. Stat. § 207.010 ..........0.000..0....... 25

Okla. Stat. tit.21,§ 51 ........ 0... cece cece ee ee 25

S.D. Codified Laws § 22-7-7 ............... 0.00 ee 25

Utah Code § 76-3-203.5(4)(c) ... 00.0000 eee. 26

Wyo. Stat. § 6-10-201, § 6-10-203 .................. 25

OTHER MATERIALS:

M. Frankel,

Criminal Sentences:

Law Without Order (1973) ....................... 28

Donna Lyons,

“Three Strikes” Legislation Update,

NAT’L Conf. ST. LEGIS., Dec. 1995 ................. 25

John Clark, et al.,

“Three Strikes and You're Out”:

A Review of State Legislation,

NAT’L INST. JUST. RES. IN BRIEF, Sept. ome 25

ee ee ee ee

No. 97-6146

4

In the

Supreme Court of the United States

October Term, 1997

+

ANGEL JAIME MONGE,

Petitioner,

Vv.

STATE OF CALIFORNIA,

Respondent.

+

On Writ of Certiorari To the

Supreme Court of the State of California

+

BRIEF OF THE STATES OF MASSACHUSETTS,

ALASKA, ARKANSAS, COLORADO, CONNECTICUT,

DELAWARE, FLORIDA, GEORGIA, IDAHO, ILLINOIS,

INDIANA, IOWA, KANSAS, LOUISIANA, MARYLAND,

MINNESOTA, MISSISSIPPI, MISSOURI, MONTANA,

NEBRASKA, NEVADA, NEW JERSEY, NEW YORK,

NORTH CAROLINA, NORTH DAKOTA, OHIO,

OKLAHOMA, OREGON, PENNSYLVANIA, RHODE

ISLAND, SOUTH CAROLINA, SOUTH DAKOTA,

TENNESSEE, TEXAS, VERMONT, VIRGINIA , WEST

VIRGINIA AND WYOMING AS AMICI CURIAE

IN SUPPORT OF RESPONDENT

+

2

INTEREST OF THE AMICI CURIAE

The Commonwealth of Massachusetts and 37 other

amici States submit this brief in support of the respondent.

Each of the amici States has at least one provision permitting

or requiring enhanced sentencing of a defendant convicted of

a second or subsequent offense. In enacting these sentence

enhancement provisions, the amici have sought to strike a

balance between their interest in punishing crime and

recidivism and their interest in providing procedural safeguards

for defendants facing enhanced sentences due to their

recidivism. This case directly affects both interests. If the

decision below is reversed, amici will lose the night to apply

their sentence enhancement statutes in many cases, and will be

penalized for instituting procedures their legislatures believe

will achieve greater fairness in sentencing.

SUMMARY OF ARGUMENT

Until this Court’s decision in Bullington v. Missouri,

451 U.S. 430 (1981), it had consistently held that the Double

Jeopardy Clause of the Fifth Amendment does not pertain to

sentencing proceedings, except to bar imposition of multiple

punishment for a single offense. Bullington departed from that

long-standing rule, holding that the Double Jeopardy Clause

prohibited a state from seeking the death penalty at retrial of a

defendant "after an initial conviction, set aside on appeal, ha{d]

resulted in rejection of the death sentence." Arizona v. Rumsey,

467 U.S. 203, 209 (1984) (citing Bullington, 451 U.S. at 430).

Relying upon the Court’s recognition in Bullington that the

capital sentencing hearing had "hallmarks of the trial on guilt

or innocence," 451 U.S. at 439, the petitioner contends that

application of the Double Jeopardy Clause to noncapital

sentence enhancement proceedings turns upon the presence or

ee ee eee

3

absence of such “hallmarks.” Thus, petitioner argues that

where noncapital sentence enhancement proceedings have such

"hallmarks," the Double Jeopardy Clause permits the

government only one opportunity to prove a defendant’s prior

convictions for the purpose of enhancement. The petitioner is

wrong for several reasons.

1. The protection afforded by the Double Jeopardy Clause

is against multiple punishment or prosecution for the same

"offense." Sentence enhancement proceedings do not place the

defendant in jeopardy for "an offense." Such proceedings

neither create a separate offense nor punish a defendant for

prior convictions. Rather, they simply ascertain the

defendant’s prior conviction status, to determine whether he is

eligible to receive a more severe sentence for his current

conviction.

Furthermore, the Double Jeopardy Clause does not bar

rehearing of a prior conviction allegation because a factfinder’ s

rejection of such an allegation is not "an acquittal." This Court

has made clear that it is only upon acquittal, or a determination

tantamount to acquittal, that the Double Jeopardy Clause

precludes a second hearing of allegations made against a

defendant. Accordingly, the Court in Bullington analogized the

jury’s decision to impose a sentence of life imprisonment to "an

acquittal of the death sentence." Because the pronouncement

of sentence in noncapital sentencing proceedings has never

been equated with a "conviction" or "acquittal" of sentence, and

because such an analogy is particularly inapt to describe the

sentence imposed following noncapital sentence enhancement

proceedings, the Court should decline to extend the analogy

used in Bullington to noncapital sentence enhancement

proceedings.

4

2. If the Double Jeopardy Clause is to apply to sentencing

at all, its application should be limited to capital sentencing

schemes. The Court’s recognition in Bullington that the

proceeding at issue contained many of the features traditionally

associated with a trial on guilt or innocence was not dispositive

of the case. Rather, the Court examined the values underlying

the Double Jeopardy Clause and found them to be equally

eufiatite to @s eden man a Geen aaenine

hearing. Because they are not equally applicable to

determinations of prior conviction status made for the purpose

of sentencing, double jeopardy should not apply to those

In addition, the petitioner proposes an illogical

application of Bullington which elevates form over substance.

There is nothing in the mere presence or absence of certain

procedural protections which suggests that double jeopardy

protections must apply as well. Double jeopardy protection

flows not from the form of a criminal trial, but from the values

underlying the Double Jeopardy Clause. The petitioner’s

position relies upon the opposite conclusion, however, making

a defendant’s constitutional protection turn upon the form of a

hearing, rather than upon the substance of the matter

adjudicated there.

3. The “hallmarks” test proposed by petitioner would

produce unpredictable and inconsistent results. Most, if not all,

of the 50 states have at least one provision permitting or

requiring enhanced sentencing of a defendant convicted of a

second or subsequent offense, each of which has its own

combination of applicable "hallmarks." Thus, the test posed by

petitioner would require examination of each such state law to

determine how many hallmarks apply, and how many are

ee oe

5

enough to trigger the application of the Double Jeopardy

Ciause. Because it is unclear, however, how many "hallmarks"

will bring a sentencing scheme within the ambit of the Double

Jeopardy Clause, or what will be the standard measure of a

"trial on guilt or innocence,” petitioner’s rule would yield

inconsistent results in both the state and lower federal courts.

Finally, the rule advocated by petitioner effectively

penalizes states for implementing procedural safeguards at

sentencing and attempting to check the discretion of sentencing

courts. In so doing, such a rule would act to the long-term

disadvantage of defendants by prompting states to reconsider

the safeguards they have chosen to provide defendants, and

discouraging them from so providing in the future.

ARGUMENT

In Stroud v. United States, 251 U.S. 15, 18 (1919), this

Court unanimously held that the Double Jeopardy Clause of the

Fifth Amendment did not bar the imposition of the death

penalty upon reconviction of a defendant whose initial

conviction, set aside on appeal, had resulted in a sentence of

life imprisonment. The Court adhered to this general principle

for more than :ixty years, repeatedly reaffirming that the

Double Jeopardy Clause does not pertain to sentencing, except

to bar imposition of multiple punishment for a single offense.

See North Carolina v. Pearce, 395 U.S. 711, 720 (1969) ("[A]}t

least since 1919, when Stroud v. United States, 251 U.S. 15

was decided, it has been settled that a corollary of the power to

retry a defendant is the power, upon reconviction, to impose

whatever sentence may be legally authorized, whether or not it

is greater than the sentence imposed after the first

conviction."); Chaffin v. Stynchcombe, 412 U.S. 17, 25 (1973)

6

_

("The possibility of a higher sentence on retrial [i]s recognized

and accepted as a legitimate concomitant of the retnal

process."); United States v. DiFrancesco, 449 U.S. 117, 137

(1980) ("the Double Jeopardy Clause does not require that a

sentence be given a degree of finality that prevents its later

increase”).

The Court chose to depart from this long-standing rule

in Bullington v. Missouri, 451 U.S. at 430. Noting that the

capital sentencing hearing examined in Bullington was, in all

relevant respects, a “trial on the issue of punishment,” id. at

438, the Court likened the jury’s imposition of a sentence of

life imprisonment to the government’s failure to prove the

appropriateness of the death penalty. Thus, the Court

concluded that in the event the defendant obtained reversal of

his conviction and was retried and reconvicted, the Double

Jeopardy Clause precluded the imposition of the death penalty.

Id. at 444, 446. The petitioner, apparently relying upon the

Court’s recognition in Bullington that Missouri’s capital

sentencing scheme contained "hallmarks of the trial on guilt or

innocence," id. at 439, now proposes a rule under which

application of the Double Jeopardy Clause to noncapital

sentence enhancement proceedings would depend upon the

presence or absence of such "hallmarks." There is nothing in

either history or logic, however, which compels, or even

counsels, application of such a “hallmarks” test to noncapital

sentencing proceedings. To the contrary, application of such a

test is unwarranted as a matter of both law and policy.

;

I. THE DOUBLE JEOPARDY CLAUSE DOES NOT

APPLY TO NONCAPITAL SENTENCE

ENHANCEMENT PROCEEDINGS BECAUSE

THEY DO NOT PLACE A DEFENDANT IN

JEOPARDY FOR "AN OFFENSE" AND

REJECTION OF A PRIOR CONVICTION

ALLEGATION IS NOT AN "ACQUITTAL"

A. SENTENCE ENHANCEMENT PROCEEDINGS Do

NoT PLACE A DEFENDANT IN JEOPARDY FOR

"AN OFFENSE"

By its terms, the Double Jeopardy Clause provides that

no person shall "be subject for the same offence to be twice put

in jeopardy of life or limb." U.S. Const. amend. V (emphasis

added). This Court has interpreted these words to afford

protection against multiple punishment for the same offense,

and against successive prosecution for the same offense. See

North Carolina v. Pearce, 395 U.S. at 717; Green v. United

States, 355 U.S. 184, 187 (1957). Because the adjudication of

a prior conviction allegation, made for the purpose of possible

sentence enhancement, does not place a defendant in jeopardy

for "an offense," the Double Jeopardy Clause does not apply to

such proceedings.

This Court has long recognized that "a charge under a

recidivism statute does not state a separate offense, but goes to

punishment only." Parke v. Raley, 506 U.S. 20, 27 (1992). See

Graham v. West Virginia, 224 U.S. 616, 624 (1912); McMillan

v. Pennsylvania, 477 U.S. 79, 88 (1986) (enhanced sentencing

statute did "no[t] create[] a separate offense calling for a

separate penalty, [but] operate[d] solely to limit the sentencing

court’s discretion in selecting a penalty"); see also Almendarez-

Torres v. United States, _ U.S. _ , __ (1998) (slip op., at 2, 5)

(observing that recidivism "is as typical a sentencing factor as

one might imagine” and concluding that provision authorizing

enhanced punishment for recidivism "is a penalty provision,

which . . . does not define a separate crime.").

It is clear that a defendant sentenced under an

enhancement scheme is not independently tned or sentenced

simply for having prior convictions, or punished for the

determination of his recidivist status as such. Rather, the

defendant is given a more severe sentence for an underlying

crime for which he has already been tried and convicted. See

Nichols v. United States, 511 U.S. 738, 747 (1994) ("“repeat-

offender laws . . . penaliz[e] only the last offense committed by

the defendant.’") (quoting Baldasar v. Illinois, 446 U.S. 222,

232 (1980) (Powell, J., dissenting)). Toward that end, sentence

enhancement proceedings merely seek to define the defendant’s

* or conviction status, to permit the court to select an

appropriate penalty for the current conviction. See Caspari v.

Bohlen, 510 U.S. 383, 396 (1994) (characterizing the matter

adjudicated at sentence enhancement proceedings as a

determination of "[p]ersistent-offender status").

The nature of the allegation adjudicated in sentence

enhancement proceedings is not altered by the fact that the

proceedings may share certain features of a traditional tral on

guilt or innocence. See McMillan v. Pennsylvania, 477 U.S. at

89-90 (state’s "dictat{ing] the precise weight to be given

[sentencing] factor ... . [did] not transform [ } . . . [that] factor

into an ‘element’ of some hypothetical ‘offense.’") Whether

the state sentencing scheme requires the state to prove the

existence of a defendant’s prior convictions by a preponderance

of the evidence or beyond a reasonable doubt, or requires

9

notice to a defendant and the application of the rules of

evidence, a hearing to ascertain the existence of prior

convictions is simply that, and cannot be called "the trial of an

offense."

By contrast, the adjudication of guilt or innocence is

clearly the classic trial of "an offense." Even the allegation

adjudicated in the capital sentencing scheme at issue in

Bullington, although not the prototypical trial of "an offense,"

can be characterized as a determination whether the defendant

had committed an offense deserving of death. See Poland v.

Arizona, 476 U.S. 147, 160 (1986) (Marshall, J., dissenting)

("the ‘offense’ for which the defendant receives his

‘conviction’ or ‘acquittal’ is that of the appropriateness of the

death penalty"). '

Moreover, the imposition of the death penalty is

arguably part of the substantive offense of capital murder. The

capital sentencing scheme not only permits, but requires,

consideration of the facts underlying the murder conviction -

in other words, the facts bearing on guilt or innocence. The

aggravating and mitigating evidence presented to the jury

relates to the same offense for which the defendant is being

sentenced, and, if certain aggravating factors are found, the

offense is "elevate(d] . . . from murder punishable by life

imprisonment to murder punishable by death." People v.

Sailor, 65 N.Y.2d 224, 232, 480 N.E.2d 701, 707, cert. denied,

474 U.S. 982 (1985). See Linam v. Griffin, 685 F.2d 369, 375

(10th Cir. 1982), cert. denied, 459 U.S. 1211 (1983)

‘The amici agree with the respondent that Bullington was erroneously

decided and should be overruled. This brief makes the separate argument

that, even assuming the correctness of Bullington, the Double Jeopardy

Clause does not apply to noncapital sentencing proceedings.

10

(observing that although procedure in Bullington was

technically bifurcated, "[iJn truth, the elements of the merits

and the sentencing were wedded."); see also Bullington, 451

U.S. at 439 n.10 (finding significant that Missouri’s capital

sentencing statute required court, following guilty verdict, to

"resume the trial and conduct a presentence hearing")

(emphasis in Bullington). Thus, one can view the capital

sentencing hearing as a continuation of the trial on guilt or

innocence, to determine the magnitude of the defendant’s

offense.

Unlike the issues adjudicated in a capital sentencing

hearing, the factfinder’s determination of the defendant’s status

for the purpose of possible sentence enhancement is completely

independent of the facts surrounding the crime for which the

defendant is being sentenced. The single issue adjudicated at

the sentence enhancement hearing is the existence of prior

convictions. In other words, the inquiry is merely "whether or

not the [defendant] standing before the court is the same person

who was previously convicted as charged. The [factfinder]

answers yes or no in accordance with the evidence." Linam v.

Griffin, 685 F.2d at 375. This determination is not, "in all

relevant respects . . . like the immediately preceding trial on the

issue of guilt or innocence," Bullington, 451 U.S. at 438, and

the factfinder, rather than determining the magnitude of the

defendant’s offense, simply ascertains whether prior

convictions will affect the severity of current punishment. In

short, "this is not the kind of adjudication that is referred to in

the Fifth Amendment." Linam v. Griffin, 685 F.2d at 375.

11

B. REJECTION OF A _ PRIOR CONVICTION

ALLEGATION Is NOT "AN ACQUITTAL"

In 1896, this Court ruled that a criminal defendant who

successfully appeals a judgment against him "may be tried

anew .. . for the same offence of which he had been

convicted." United States v. Ball, 163 U.S. 662, 672 (1896).

Since that time, the Court has explained that the principle

underlying Ball is primarily supported by two considerations.

First, the Court has recognized that society would pay too high

a price "were every accused granted immunity from

punishment because of any defect sufficient to constitute

reversible error in the proceedings leading to conviction,"

United States v. Tateo, 377 U.S. 463, 466 (1964), and second,

"the Court has concluded that retrial after reversal of a

conviction is not the type of governmental oppression targeted

by the Double Jeopardy Clause." Tibbs v. Florida, 457 U.S.

31, 40 (1982).

In Burks v. United States, 437 U.S. 1, 18 (1978),

however, the Court announced a narrow exception to the

general rule, holding that the Double Jeopardy Clause bars

retrial of a defendant whose conviction is set aside on the basis

of evidentiary insufficiency. Recognizing that the Double

Jeopardy Clause absolutely bars retrial of a defendant after

acquittal, Green v. United States, 355 U.S. at 188, the Court

reasoned that "[a] reversal based on the insufficiency of the

evidence has the same effect [as an acquittal] bcause it means

that no rational factfinder could have voted to convict the

defendant." Tibbs, 457 U.S. at 41. It is only upon acquittal,

therefore, or a determination tantamount to acquittal, that the

Double Jeopardy Clause bars the readjudication of an allegation

against the defendant. See DiFrancesco, 449 U.S. at 133

12

("Appeal of a sentence . . . would seem to bea violation of

double jeopardy only if . . . , for double jeopardy finality

purposes, the imposition of the sentence is an ‘implied

acquittal’ of any greater sentence."). ~~

For this reason, Bullington’s holding necessarily rested

upon the predicate determination that "the jury’s decision to

sentence Bullington to life imprisonment after his first

conviction should be treated as an ‘acquittal’ of the death

penalty under the Double Jeopardy Clause." Poland v.

Arizona, 476 U.S. at 153. Such an analogy, far from a perfect

fit in the Bullington context, see Poland, 476 U.S. at 159

(Marshall, J., dissenting) ("[t}he analogy, first drawn in

Bullington v. Missouri, . . . between an acquittal at trial and an

‘acquittal’ of death at sentencing, is not perfect . . ."), is wholly

inapt to describe a factfinder’s rejection of a prior conviction

allegation.

First, "[h]istorically, the pronouncement of sentence has

never carried the finality that attaches to an acquittal."

DiFrancesco, 449 U.S. at 133. See also id. at 132 ("neither the

history of sentencing practices, nor the pertinent rulings of this

Court, nor even considerations of double jeopardy policy

support . . . an equation [of a criminal sentence to an

acquittal]"). In DiFrancesco, the Court reaffirmed this

principle, declining an invitation to liken the sentence imposed

under a federal sentence enhancement scheme to an "acquittal"

or "conviction" of sentence, despite the presence of procedural

safeguards at sentencing. /d. at 133-137. That the proceedings

at issue here may afford more procedural protections than

traditional sentencing proceedings, or even more than those

present in DiFrancesco, does not change the nature of

sentences imposed in those proceedings, any more than the

13

safeguards employed by the federal sentencing court altered the

nature of Mr. DiFrancesco’s sentence. Petitioner’s argument

to the contrary ignores the "fundamental distinctions between

a sentence and an acquittal, and . . . the particular significance

of an acquittal." /d. at 133.

Second, even if the Court were inclined to analogize

some forms of sentencing to "convictions" or "acquittals," the

sentence imposed following a sentence enhancement

proceeding simply cannot be described in such terms. Unlike

the defendant acquitted following a trial on the issue of guilt or

innocence, or the defendant "acquitted" of having committed a

crime deserving death, the defendant facing an allegation that

he has suffered prior convictions is not "acquitted" when the

factfinder rejects that allegation, as the defendant’s status as

one with or without prior convictions does not change.

Whereas the defendant charged with a crime, or the one

alleged to have committed a crime deserving death, cannot

objectively be said to be "guilty" of that allegation until the

factfinder pronounces him so, this is not the case for the

defendant alleged to have suffered prior convictions. If a

defendant does, in fact, have a prior conviction, the

pronouncement of the factfinder simply cannot change that

prior conviction status - any more than the defendant can be

“acquitted” of being a certain age or sex.

Moreover, as noted by the New York Court of Appeals,

the practical result of extending the analogy adopted in

Bullington to noncapital sentence enhancement proceedings

counsels against such an extension:

14

[A]rguably extension of the double jeopardy

clause to enhanced sentencing proceedings .. .

would seemingly mean that a failure to prove a

defendant’s previous felony conviction for any

reason, even prosecutorial mistake or

carelessness, unrelated to the truth of such prior

convictions, which are matters of public record,

would forever bar the use of that prior

conviction in any subsequent enhanced

sentencing proceeding.

People v. Sailor, 65 N.Y .2d at 236, 480 N.E.2d at 710.

In fact, taken to its logical extreme, treating sentence

enhancement rulings as “acquittals" or "convictions" could

mean that a state may attempt use of a defendant’s prior

conviction for enhancement purposes only once, whether

successful or not. If the state fails to prove the existence of a

prior conviction, the defendant will be deemed "acquitted" of

the allegation that he has a prior conviction, and the state

prohibited from attempting to prove the existence of that

conviction in the future, presumably in connection with any

other conviction or sentence. If the state does meet its burden

of proving the existence of a prior conviction, the defendant

will be deemed "convicted" of that allegation, again barring the

state from ever attempting to prove it again. See Carpenter v.

Chapleau, 72 F.3d 1269, 1272 (6th Cir.), cert. denied, 117

S.Ct. 108 (1996) (noting that the court had rejected a double

jeopardy challenge to the state’s using the same predicate

offense for enhancement of more than one sentence) (citing

Montgomery v. Bordenkircher, 620 F.2d 127 (6th Cir.), cert.

denied, 449 U.S. 857 (1980)).

15

Nowhere has this Court ever suggested that

consideration by a sentencing court of a defendant’s prior

convictions, even more than once, is an evil which the Double

Jeopardy Clause was designed to prevent. On the contrary, it

has stressed that "the sentencing judge’s ‘possession of the

fullest information possible concerning the defendant’s life and

characteristics’ is ‘[h]ighly relevant - if not essential - [to

the] selection of an appropriate sentence.’" Lockett v. Ohio,

438 U.S. 586, 603 (1978) (quoting Williams v. New York, 337

U.S. 241, 247 (1949)) (emphasis in Lockett). The Court should

decline to adopt a rule which would cause such a result and

which, in any event, constitutes an illogical extension of the

analogy adopted in Bullington.

Il. IF THE DOUBLE JEOPARDY CLAUSE IS TO

APPLY TO SENTENCING AT ALL, IT SHOULD

BE LIMITED TO CAPITAL SENTENCING

SCHEMES

Although the petitioner has focused upon the Court’s

reference to "hallmarks" in formulating his proposed extension

of Bullington to noncapital sentencing, there is no historical or

logical reason to do so. The Court’s recognition in Bullington

that the capital sentencing proceeding contained many of the

features traditionally associated with a trial on guilt or

innocence was not, in and of itself, dispositive of the case.

Rather, what drove the result in Bullington - and indeed, the

enactment of the Double Jeopardy Clause itself - were several

considerations not applicable to the present case. Those

considerations (as well as the factors discussed in Section I,

supra) compel the conclusion that Bullington should not be

extended.

16

A. BULLINGTON WAS BASED, IN LARGE PART,

UPON ITS CAPITAL CONTEXT

This Court has suggested on more than one occasion

that an essential element of the result reached in Bullington - an

element not present in the sentencing schemes at issue here -

was the fact that the Court there examined a capital sentencing

proceeding. As the Court expressly stated in Caspari v.

Bohlen, 510 U.S. at 392, "[b]oth Bullington and [Arizona v.]

Rumsey, [467 U.S. at 203] were capital cases, and [the]

reasoning in those cases was based largely on the unique

circumstances of a capital sentencing proceeding." See also

Pennsylvania v. Goldhammer, 474 U.S. 28, 30 (1985) ("the

decisions of this Court ‘clearly establish that a sentenc[ing in a

noncapital case] does not have the qualities of constitutional

finality that attend an acquittal’) (bracketed phrase in original;

citation omitted); Bullington, 451 U.S. at 446 ("the protection

afforded by the Double Jeopardy Clause to one acquitted by a

jury is also available to him, with respect to the death penalty,

at his retrial") (emphasis added); Poland v. Arizona, 476 U.S.

at 155 ("Bullington indicates that the proper inquiry is whether

the sentencer or reviewing court has decided that the

prosecution has not proved its case that the death penalty is

appropriate") (emphasis in original; citation omitted).

The result reached in Caspari also confirms that

Bullington’s holding depended in large part upon its capital

context. In Caspari, 510 U.S. at 393, the Court concluded that

petitioner sought the benefit of a "new rule" because a rule

requiring application of the Double Jeopardy Clause to

noncapital sentencing proceedings was not dictated by the

Court’s precedents. As the Court repeatedly emphasized in

Caspari, the reason that Bullington did not dictate the rule

17

sought by Mr. Bohlen was the fact that Bullington involved

capital sentencing proceedings, and Caspari did not.

That the result in Bullington was based, in large part,

upon its having been a capital case is further supported by the

Court’s decision in DiFrancesco. The Court decided

DiFrancesco in December, 1980. Only five months later,

within the same Term, the Court rendered its decision in

Bullington. The different reasoning employed by the Court in

those two cases - and of course the opposite results reached -

suggest that an important factor distinguishing the two

decisions was the difference in the penalties at stake. In

examining the sentence enhancement statute challenged in

DiFrancesco, the Court began by noting that it was addressing

a sentencing scheme, traced the history of the rule

differentiating sentencing from acquittal, and applied that rule

to reach the same result it always had - that the Double

Jeopardy Clause did not apply to sentencing. In Bullington,

however, the Court did not begin with its usual premise.

Rather, the Court immediately distinguished those cases which

had previously addressed double jeopardy challenges to

sentencing, stating that "(t]he history of sentencing practices is

of little assistance to Missouri in this case, since the sentencing

procedures for capital cases instituted after the decision in

Furman |v. Georgia, 408 U.S. 238 (1972)] are unique.” 451

U.S. at 441-442 n.15. The different posture from which the

Court began its analyses in DiFrancesco and Bullington makes

clear that the difference in the penalties was a primary factor

informing its analysis.

The National Association of Criminal Defense Lawyers

(NACDL), amicus curiae in support of petitioner, argue that the

rule announced in Bullington should not be limited to capital

18

cases because “death is only different in the sense that it is

largely in death penalty cases that this Court has relied on the

Eighth Amendment to require of the states special criteria or

procedures to ensure equitable and reliable punishment or

outcomes." NACDL Br. at 4 (emphasis omitted). This is not

so. To be sure, the Court has interpreted the Eighth

Amendment to require certain procedures at capital sentencing

hearings which are not required at noncapital sentencing.

Nevertheless, the Court’s differing treatment of capital and

noncapital proceedings has not been limited solely to cases

arising under the Eighth Amendment. See Barefoot v. Estelle,

463 U.S. 880, 913 (1983) (Marshall, J., dissenting) ("Time and

again the Court has condemned procedures in capital cases that

might be completely acceptable in an ordinary case."); see also

Strickland v. Washington, 466 U.S. 668, 686-687 (1984)

(noting that the definition of “constitutionally effective

assistance" may differ in capital and noncapital sentencing

proceedings).

In any case, the contention that capital cases only differ

from noncapital cases when being examined under the Eighth

Amendment skirts the obvious point that the procedures

employed in the sentencing scheme at issue in Bullington were

only required because that was a capital sentencing scheme.

The Court has construed the Eighth Amendment to require, in

capital cases, procedural safeguards which guide the discretion

of the sentencer. See Furman v. Georgia, 408 U.S. at 257, 310,

313; Gregg v. Georgia, 428 U.S. 153, 188-189, 197-198

(1976). These are the very same safeguards which rendered the

Bullington procedure enough "like the tral on guilt or

innocence" to bring it within the ambit of the Double Jeopardy

Clause.

19

By contrast, the Court has not required legislatures to

provide such safeguards in noncapital cases, see Lockett v.

Ohio, 438 U.S. at 603, and most of the procedures employed in

noncapital sentencing proceedings are merely a matter of

legislative grace. It may be logical to conclude that because the

Constitution requires certain safeguards at capital sentencing

hearings, other constitutional protections will be deemed to

apply as well. This conclusion is not so easily reached with

reference to a hearing at which the majority of procedural

safeguards have been granted, and may simply be withdrawn,

by legislative enactment.

B. THE VALUES UNDERLYING THE DOUBLE

JEOPARDY CLAUSE ARE NOT UNDERMINED By

READJUDICATION OF A PRIOR CONVICTION

ALLEGATION

The "general design" of the Double Jeopardy Clause,

DiFrancesco, 449 U.S. at 127, was eloquently described for the

Court by Justice Black:

The underlying idea, one that is deeply

ingrained in at least the Anglo-American system

of jurisprudence, is that the State with all its

resources and power should not be allowed to

make repeated attempts to convict an individual

for an alleged offense, thereby subjecting him to

embarrassment, expense and ordeal and

compelling him to live in a continued state of

anxiety and insecurity, as well as enhancing the

possibility that even though innocent he may be

found guilty.

20

Green v. United States, 355 U.S. at 187-188. Although the

Court opined in Bullington that the values underlying the

Double Jeopardy Clause are “equally applicable when a jury

has rejected the State’s claim that the defendant deserves to

die,” 451 U.S. at 445, they are not equally applicable to a

simple factual determination that a defendant does or does not

have a number of prior convictions, made for the purpose of

choosing an appropriate sentence for a crime of which the

defendant has already been convicted. At that point, as the

Court observed in DiFrancesco, "({t}he defendant’s primary

concern and anxiety obviously relate to the determination of

innocence or guilt, and that already is behind him." 449 U.S. at

136.

Moreover, the simplicity of the prior conviction inquiry,

and its lack of factual relationship to the underlying

convictions, distinguish the proceedings at issue here from

those at issue in Bullington. In the capital context, both the tnal

on guilt or innocence and the sentencing hearing necessarily

focus upon the defendant’s behavior. The capital sentencing

hearing not only permits but requires a detailed presentation of

evidence regarding both the underlying crime and the character

of the defendant. The sentencing scheme at issue here does no

such thing. As described by the California Supreme Court,

a prior conviction trial is simple and

straightforward as compared to the guilt phase

of a criminal trial. Often it involves only the

presentation of a certified copy of the prior

conviction along with the defendant’s

photograph and fingerprints. In many cases,

defendants offer no evidence at all, and the

outcome is relatively predictable. In this case,

21

for example, the prior conviction trial, which

looked more like an informal hearing than a

trial, fills only a few pages of a 244-page

reporter’s transcript.

People v. Monge, 16 Cal. 4th 826, 838, 941 P.2d 1121, 1129

(1997).

For these reasons, the “embarrassment, expense and

ordeal” and the "anxiety and insecurity" potentially faced by a

defendant during the penalty phase of a capital murder trial -

which the Court found must "surely [be] at least equivalent to

that faced by any defendant at the guilt phase of a criminal

trial," Bullington, 451 U.S. at 445 - are not equivalent to that

experienced by a defendant simply facing a determination of

his prior conviction status. Although a defendant may feel the

anxiety associated with the potential imposition of an enhanced

sentence, this is no different from the anxiety faced by any

defendant awaiting sentencing. More importantly, it is not

sufficient justification for extending the application of the

Double Jeopardy Clause to sentence enhancement proceedings.

See DiFrancesco, 449 U.S. at 137 ("The Double Jeopardy

Clause does not provide the defendant with the right to know at

any specific moment in time what the exact limit of his

punishment will turn out to be.").

So too, any stigma potentially suffered by the defendant

is associated not with the determination made at sentencing, but

with the underlying conviction. A determination that the

defendant should receive a longer sentence due to a prior

conviction carries with it little if any of the stigma of a criminal

conviction, and certainly not the degree associated with either

22

a criminal conviction or a determination that the defendant has

committed a crime which is deserving of death.

The relative brevity and simplicity of the inquiry in a

prior conviction proceeding also make inapplicable to

noncapital sentence enhancement proceedings the final concern

voiced by the Court in Bullington - "[t}he ‘unacceptably high

risk that the [prosecution], with its superior resources, would

wear down a defendant,’ thereby leading to an erroneously

imposed death sentence, . . . if the State were to have a further

opportunity to convince a jury to impose the ultimate

punishment.” 451 U.S. at 445-446 (quoting DiFrancesco, 449

U.S. at 130). Readjudication of a sentencing enhancement

allegation will not so "wear down the defendant” that it will

lead to an erroneous result. As the Court observed in Caspari,

[p]ersistent-offender status is a fact objectively

ascertainable on the basis of readily available

evidence. Either a defendant has the requisite

number of prior convictions, or he does not.

Subjecting him to a second proceeding at which

the State has the opportunity to show those

convictions is not unfair and will enhance the

accuracy of the proceeding by ensuring that the

determination is made on the basis of competent

evidence.

510 U.S. at 396.

23

S THE PETITIONER’S "HALLMARKS Test" Is

AN ILLOGICAL APPLICATION OF BULLINGTON

WHICH ELEVATES FORM OVER SUBSTANCE

Petitioner’s position is apparently premised upon his

belief that under Bullington, the presence of certain features at

sentencing automatically invokes the protection of the Double

Jeopardy Clause. There is nothing in the mere presence or

absence of certain procedural safeguards, however, such as the

granting of a jury trial, the application of the rules of evidence,

or even the standard of proof beyond a reasonable doubt, which

suggests that double jeopardy protections must apply as well.

Contrary to petitioner’s contention, the applicability of the one

does not automatically flow from the presence of thé other.

The Double Jeopardy Clause bars successive

prosecutions of a criminal offense not because of the format of

a criminal trial or the procedural safeguards employed there,

but because of the values underlying the Double Jeopardy

Clause. These values are independent of the "hallmarks";

indeed, the Double Jeopardy Clause predates many of what we

today recognize as the “hallmarks” of a trial on guilt or

innocence. See, e.g., Gideon v. Wainwright, 372 U.S. 335

(1963) (holding that criminal defendants have the right to

counsel); /n re Winship, 397 U.S. 358, 361 (1970) (observing

that the standard of proof beyond a reasonable doubt only

"crystallized" "as late as 1798"). Thus, even assuming that the

sentencing scheme at issue here would meet petitioner’s

"hallmarks" test, it does not follow that the presence of such

"hallmarks" should automatically trigger the protection of the

Double Jeopardy Clause.

24

Moreover, petitioner’s rule elevates form over

substance. Under petitioner’s test, a defendant sentenced under

a statute requiring proof beyond a reasonable doubt or giving

the sentencing court only two sentencing options would be

protected by the Double Jeopardy Clause, while one sentenced

under a statute requiring proof by a preponderance of the

evidence or granting the sentencing court a third option would

have no such protection. Such a test, which examines the form

of a hearing without contemplating its purpose or true effect

upon a particular defendant, ignores the goals served by the

Double Jeopardy Clause.

It cannot be the case that a constitutional protection as

important as that afforded by the Double Jeopardy Clause will

turn upon the procedural niceties established from state to state,

or that simply reducing the standard of proof or granting the

sentencing court a third choice will suffice to remove a

sentencing scheme from the ambit of the Double Jeopardy

Clause, where it would otherwise apply. A holding which

yields this result diminishes the value of the constitutional

protection itself. See Sandin v. Conner, 515 U.S. 472, 489

(1995) (Ginsburg, J., dissenting) ("Deriving protected liberty

interests from .. . local . . . codes would make of the

fundamental nght something more in certain States, something

less in others. Liberty that may vary from . . . New York, to .

.. California, does not resemble the ‘Liberty’ enshrined among

‘unalienable Rights’ with which all persons are ‘endowed by

their Creator.’") (quoting the Declaration of Independence).

25

lil. A “HALLMARKS TEST" WOULD PRODUCE

UNPREDICTABLE AND INCONSISTENT

RESULTS, PENALIZE STATES FOR

PROVIDING PROCEDURAL SAFEGUARDS AT

SENTENCING, AND DISCOURAGE STATES

FROM DOING SO IN THE FUTURE

Most, if not all, of the 50 states have at least one

provision permitting or requiring enhanced sentencing of a

defendant convicted of a second or subsequent offense.? Each

provision - whether a "three strikes law," a habitual or

persistent offender statute, or a provision for enhanced

sentencing for second or subsequent offenses - has its own

> Between 1993 and 1995, 24 states and the federal government

enacted “three strikes” laws. Donna Lyons, “Three Strikes” Legislation

Update, NAT’L CONF. ST. LEGIS., Dec. 1995. Twenty-three of those 24

states also have provisions for enhanced penalties for repeat offenders

which predate their “three strikes” legislation. John Clark, et al., “Three

Strikes and You're Out”: A Review of State Legislation, NAT'L INST. JUST.

RES. IN BRIEF, Sept.1997, at 1, 9-10, exh. 10. In addition, almost every

other state has at least one provision for enhanced sentencing of a habitual

or persistent offender, or for second or subsequent offenses. See, e.g.,

Alaska Stat. § 12.55.125(1); Ariz. Rev. Stat. § 13-604; Conn. Gen. Stat. §

53a-40; Del. Code Ann. tit. 11, §§ 4214, 4215; Haw. Rev. Stat. §§ 706-661,

706-662, 706-606.5; Ind. Code § 35-50-2-8; lowa Code § 902.8; Ky. Rev.

Stat. § 532.080; La. Rev. Stat. 15:529.1; Mass. Gen. L. ch. 279, § 25; Mo.

Rev. Stat. § 558.016; Neb. Rev. Stat. § 29-2221; Nev. Rev. Stat. § 207.010;

N.Y. Penal Laws §§ 70.04, 70.06, 70.08, 70.10; Okla. Stat. tit. 21, § 51;

S.D. Codified Laws § 22-7-7; Wyo. Stat. §§ 6-10-201, 6-10-203. See also

Parke v. Raley, 506 U.S. at 26-27 (noting that all 50 states and the federal

government have enacted statutes which punish recidivism).

26

combination of applicable “hallmarks."’ Thus, the test

proposed by petitioner would require examination of each such

state law to determine how many "hallmarks" are present.

Because it is unclear, however, how many “hallmarks” will

bring a sentencing scheme within the ambit of the Double

Jeopardy Clause, which particular hallmarks will have that

effect, or what will be the standard measure of a "trial on guilt

or innocence," petitioner’s rule would yield unpredictable and

inconsistent results. See People v. Levin, 157 Ill. 2d 138, 147-

148, 623 N.E.2d 317, 322 (1993), cert. denied, 513 U.S. 826

(1994) (observing that the Court in Bullington "did not address

whether the presence of any one of the three trial-like factors

upon which it relied would have been sufficient, alone, to

support its trial analogy" or "place greater significance on any

one factor over another.").

For example, because each state’s procedure for the

adjudication of guilt or innocence may differ in the number and

type of "hallmarks," it is unclear whether the petitioner would

require each state’s sentencing proceeding to be measured

against its own form of the tnal on guilt or innocence, or

against some general standard to be created by this Court. A

decision adopting the petitioner’s test, but declining to create a

single standard against which to measure each state law, would

introduce an element of unpredictability into the law,

potentially generating inconsistent decisions in both the state

*For instance, of those states which require a separate hearing on

sentence enhancement allegations, some require prior conviction allegations

to be proven by a preponderance of the evidence, see, e.g., Fla. Stat. §

775.084(3 (a4); N.D. Cent. Code § 12.1-32-09(4); 42 Pa. Cons. Stat. §

9714(D); Utah Code § 76-3-203.5(4)(c), while others require the allegations

to be proven beyond a reasonable doubt. See, e.g., Ind. Code § 35-50-2-

8(d); La. Rev. Stat. 15:529.1D(1)(b); Mass. Gen. L. ch. 278, § 11A.

27

courts and the lower federal courts as those courts disagree

about the quality and quantity of "hallmarks" which trigger the

application of the Double Jeopardy Clause.‘ A clear statement

that the Double Jeopardy Clause does not apply to noncapital

sentencing proceedings will prevent this result.

Limiting Bullington to capital sentencing hearings will

also avoid an equally disturbing result. For the most part, the

procedural safeguards provided by the states at noncapital

sentence enhancement hearings are a matter of choice, not

constitutional entitlement. If the states find, however, that by

increasing procedural safeguards at sentencing proceedings

they subject themselves to greater judicial scrutiny, and bring

those proceedings within the ambit of the Double Jeopardy

Clause, they may be forced to reconsider the safeguards which

have been provided thus far, and discouraged from so providing

in the future. See Tibbs v. Florida, 457 U.S. at 45 n.22 (noting

that construing the Double Jeopardy Clause to bar retrial after

a conviction is set aside as against the weight of evidence might

serve to eliminate a practice which protects defendants by

"prompt[ing] state legislatures simply to forbid [appellate]

courts to reweigh the evidence.").

In Sandin v. Conner, 515 U.S. at 482, this Court

recognized that finding constitutional entitlements in the mere

fact that states had promulgated regulations to confine the

discretion of prison personnel created disincentives for the

states to do so, "discourag[ing] this desirable development."

“In fact, double jeopardy challenges to sentence enhancement

proceedings have already created a number of divergent opinions in the

state and federal courts. See People v. Monge, 16 Cal. 4th at 839-841,

941 P.2d at 1130 (discussing opinions accepting and rejecting such

claims).

28

The same can be said here. There is no question that procedural

safeguards at sentencing benefit the defendant, yet the rule

proposed by petitioner discourages states from providing them.

Likewise, given the Court’s recognition in Bullington that

unfettered discretion in the sentencer is a "hallmark" of

traditional sentencing, whereas limited discretion is a

"hallmark" of the trial on guilt or innocence, 451 U.S. at 439-

441, petitioner’s approach would discourage the states’

implementation of statutes which guide the discretion of the

sentencing court. Yet to do so would undermine what this

Court has described as a positive development in the law. See

DiFrancesco, 449 U.S. at 142-143 (noting that it had "been

observed . . . that sentencing is one of the areas of the criminal

justice system most in need of reform" and approving the

sentencing scheme at issue as "a check upon th[fe] unlimited

power [of sentencing courts], [which] should lead to a greater

degree of consistency in sentencing") (citing M. Frankel,

Criminal Sentences: Law Without Order (1973)).

Given the lengthy sentences potentially available under

state sentence enhancement laws, the states’ implementation of

procedural safeguards at sentencing and their legitimate efforts

to guide the discretion of sentencing courts should be lauded

and encouraged. Like the rule rejected in Sandin, the rule

advocated by petitioner would have the opposite effect,

effectively penalizing states for their attentiveness to the

interests of criminal defendants. Because such an approach

discourages states from implementing safeguards or cabining

the discretion of sentencing courts, adoption of petitioner’s

position would likely work to the long term detriment of both

the states and criminal defendants, and should be rejected.

29

CONCLUSION

Based upon the foregoing, this Court should affirm the

judgment of the California Supreme Court.

Respectfully submitted,

SCOTT HARSHBARGER

Attorney General of Massachusetts

. ELLYN H. LAZAR

Assistant Attorney General

One Ashburton Place

Boston, MA 02108

(617) 727-2200

Counsel for Amici States

Of Counsel:

Dan Schweitzer

National Association of

Attorneys General

750 First Street, N.E.

Suite 1100

Washington, D.C. 20002

* Counsel of Record

March 27, 1998