Petitioners Brief — Apprendi v. New Jersey

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No. 99-478

In The

Supreme Court of the United States

CHARLES C. APPRENDI, JR.,

Petitioner,

Vv.

STATE OF NEW JERSEY,

Respondent.

On Writ Of Certiorari To The

Supreme Court Of New Jersey

BRIEF OF PETITIONER

JoserH D. O’Nem, Esa.

Counsel of Record

CuHarces I. Coant, Esa.

JoserH D. O’Nemt, P.A.

30 West Chestnut Avenue

P.O. Box 847

Vineland, New Jersey 08362

(856) 692-2400

RicHarp G. Sincer, Esa.

217 North Fifth Street

Camden, New Jersey 08102

(856) 225-6181

Counsel for Petitioner

January 13, 2000

=—————eeeeeeoooooo eee

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Whether New Jersey violates Fifth Amendment Due

Process rights and Sixth Amendment guarantees of notice

and jury trial by providing that a defendant’s maximum

punishment may be increased from ten to twenty years

based solely upon a finding by a sentencing judge under

a preponderance of the evidence standard, without notice

by indictment and jury trial, that the defendant had the

requisite intent necessary to establish a “hate” crime.

PARTIES TO THE PROCEEDING TABLE OF CONTENTS

All parties to the proceeding are listed in the caption ! Page

ee QUESTION PRESENTED...............00eeec0eeee. i

PARTIES TO THE PROCEEDING .................. ii

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NS 65.460 6b e0ccdcndboncedicacencedanets 1

CONSTITUTIONAL AND STATUTORY PROVI-

Se PTE cb acccccccdsccdcvccsenesecses 1

STATEMENT OF THE CASE............cccssesceees 3

SUMMARY OF ARGUMENT................0000005 14

RE Ck nbbicccedsnccécnsecadecnsadebacncees 15

I. BEFORE DOUBLING A STATUTORY MAXI-

MUM SENTENCE FROM TEN YEARS TO

TWENTY YEARS ON THE BASIS OF A DEFEN-

DANT’S MENTAL STATE, THE PROSECUTION

MUST PROVE THE EXISTENCE OF THAT MEN-

TAL STATE BEYOND A REASONABLE DOUBT

Yee ac cane Ree ais 15

A. Under The Due Process Clause Of The Fifth

Amendment And The Notice And Jury Trial

Guarantees Of The Sixth Amendment Any

Fact (Other Than Recidivism) Including A

Defendant’s Mental State, That Increases

The Maximum Penalty For A Crime Must Be

Charged In An Indictment, Submitted To A

Jury And Proven Beyond A Reasonable

BED wevecescdaccccescceoasococenseescecse 15

B. Assessing A Defendant's Mental State Pre-

sents A Task Fraught With Uncertainty; The

Risk Of Error Requires Proof Beyond A Rea-

GRU Occ ccccescccccscccccccccoccese 21

TABLE OF CONTENTS - Continued

Page

C. New Jersey’s Approach Is Unusual And

I 000 nncnededdaviscensdccdbenstccaen

1. Only New Jersey Expressly Uses A Pre-

ponderence Of The Evidence Determina-

tion Of A Defendant’s Mental State To

Effectively Double The Maximum Pun-

ED concccpasepodscceseccucucesnces

2. The Federal Sentencing Guidelines Rec-

ognize That The Determination Of A

Biased Pu In The Commission Of A

Crime Calls For The Highest Standard

Ge WEEE dédcterccvcccencuscesddeaveccs

Il. ANY FACT THAT RESULTS IN AN INCREASE OF

THE MAXIMUM SENTENCE (EXCEPT RECIDIV-

ISM) MUST BE RESOLVED BY A JURY .........

A. The Question Of Intent Can Never Be Ruled

As A Question Of Law, But Must Always Be

SO OP ND ND cc eiccccedcncccecses

B. NJ. Stat. Ann. § 2C:44-3e. Imposes A Significant

Societal Stigma That Should Be Imposed Onl

By A Jury, As A Jury Best Represents The Col-

lective Judgment Of The Community.........

CEE chcvetcccindivecnéontecenceeénseseos

TABLE OF AUTHORITIES

Page

Cases

Addington v. Texas, 441 U.S. 418 (1979) ....... 19, 20, 21

Almendarez-Torres v. United States, 523 U.S. 224

dso cacuceseeveseeneceseeseseasséanes 13, 24, 35

Arlington Heights v. Metropolitan Housing Dept.

Comm, GD US. Tae Gap cc cccccccccccccccsccsces 34

Batson v. Kentucky, 476 U.S. 79 (1986) ............ 32, 34

Castaneda v. Partida, 430 U.S. 482 (1977)............. 34

Chandler v. Fretag, 348 U.S. 3 (1954).............545. 36

Chaunt v. United States, 364 U.S. 350 (1960).......... 12

Chewning v. Cunningham, 368 U.S. 443 (1962)........ 36

Culombe v. Connecticut, 367 U.S. 568 (1961) .......... 23

Duncan v. Louisiana, 391 U.S. 145 (1968)............. 32

Duren v. Missouri, 439 U.S. 1357 (1979).............. 34

Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1

SE 6 bs6eecddecccevadeccsesscencceessoscesooces 21

In re Winship, 397 U.S. 358 (1970).... 15, 16, 19, 21, 37, 38

Jones v. United States, 527 U.S. 373, 119 S.Ct. 2090,

Oe Ee Se ns veccccesnccddcesonssses ces 38

Jones v. United States, __ U.S. __, 119 S.Ct. 1215,

Be See Be GE abc decdccesccsécceccoues passim

Lowenfield v. Phelps, 484 U.S. 231 (1988) ............. 38

Martinez v. State, 980 S.W. 2d 662 (Tex. App. 1998). .28, 30

Mathews v. Eldridge, 424 U.S. 319 (1976)...... 19, 20, 21

TABLE OF AUTHORITIES - Continued

Page

McMillan v. Pennsylvania, 477 U.S. 79 (1986)

ahbhnessnddueshaesesabanuhademes 12, 13, 17, 19, 24, 37

Morissette v. United States, 342 U.S. 246 (1952)... .33, 37

Mullaney v. Wilbur, 421 U.S. 684 (1975).............. 17

New Jersey v. Charles Apprendi, Jr., 304 N.J. Super.

147, 698 A.2d 1265 (App. Div. 1997) .............. 11

New Jersey v. Charles Apprendi, Jr., 159 N.J. 7, 731

ee Ge es baba dcdenccadncedecciveseenecs 12

Olivito v. United States, 67 F.2d 564 (9th Cir. 1933) .... 35

Pace v. Aderhold, 2 F. Supp. 261 (N.D. Ga.), aff'd, 65

ee CO Ge GEN Mc cnnccccdvovececcnassccess 35

Patterson v. New York, 432 U.S. 197 (1977) ........... 17

People v. Flack, 26 N.E. 267 (N.Y. 1891).............. 33

People v. Hernandez, 757 P.2d 1013 (Cal. 1988)........ 20

Rivera v. Minnich, 483 U.S. 57 (1987) ............. 20, 25

Santosky v. Kramer, 455 U.S. 745 (1982) .............. 19

Specht v. Patterson, 386 U.S. 605 (1967) .............. 36

Staples v. United States, 511 U.S. 600 (1994).......... 21

Taylor v. Louisiana, 419 U.S. 522 (1975) .............. 32

United States v. Gaudin, 515 U.S. 506 (1995).......... 32

United States v. Hopper, 177 F.3d 824 (9th Cir.

Bey 6 o ccccncasscntevesccacccdansgncnsdsesecie 19, 25

Vii

TABLE OF AUTHORITIES - Continued

Din ccéns csvdenneghe6ebecnscéeeashebokatenuaneece 25

United States v. Kramer, 289 F.2d 909 (2d Cir. 1961) .... 35

United States v. United States Gypsum Co., 438 U.S.

GD GRIF owen ccccccccessccevccccescesesccesens 33, 34

United States v. Wilson, 284 F.2d 407 (4th Cir. 1960) .... 35

United States v. X-Citement Video, Inc., 513 U.S. 64

SED kcccocsscesdcbocusesectsdeseutcscceneveseess 21

Washington v. Davis, 426 U.S. 229 (1976)............. 34

Williams v. Florida, 399 U.S. 78 (1970) ...........455. 32

Woodby v. INS, 385 U.S. 276 (1966)............00000s 19

CONSTITUTION

ee, Ce TE, wcciknndé oenteses eseudees 1, 15, 31

U.S. Const. amend. VI............. 2, 15, 17, 31, 34, 35

FEDERAL STATUTES

2B UG.C. © UBSMa) ...cccccccsccccccsccccccvvecsccess 1

ie a, fae cecal aad 31

State STATUTES

Oklahoma Statutes Annotated, § 1765............... 26

Vili

TABLE OF AUTHORITIES - Continued

Page

N.J. Stat. Ann. § 2C:12-le. ...........0005 4, 27, 28, 30

DS Fei, TEE cc cccccesccccccesscucs 4, 27, 29, 30

SD BME cc cesccescdesccsncacsvescesessascenskes 28

DS BME ccvcccvcesecocvectenscessecceneseeeteeed 5

EME coveccascccesteccsccooutbecessudeaudauads 5

DP Bee veceveccuscveccesuseecsesvensseseousteus 30

BD BPO e ove vendvccceneccvcnstesccéscesceseces 5

SD PRETO ccccccccescconcevacéesuseiceoscéecuse 5

DD BORE cccccccccsccscevevececeseesseeseses passim

SCHOLARLY AUTHORITIES

Benjamin J. Priester, Further Developments on Previos

Sympasia: Sentenced for a Crime the Government Did

Not Prove: Jones v. United States and the Constitu-

tion Limitations on Factfinding by Sentencing Factors

Rather than Elements of the Offense, 61 Law and

Contemp. Prob. 249 (1998) ............ceeeeeeeee 36, 37

Gardner, Bailey v. Richardson and the Constitution

of the United States, 33 B.U.L. Rev. 176 (1953) ..... 37

Henry Hart, The Aims of the Criminal Law, 23

Law and Contemp. Probs. 401 (1958) ............. 37

Richard G. Singer & Mark D. Knoll, Searching for

the “Tail of the Dog” Finding “Elements” of Crimes

in the Wake of McMillan v. Pennsylvania, 22

Seattle Univ. L. Rev. 1057 (1999).................. 34

TABLE OF AUTHORITIES - Continued

Page

THER AUTHORITIES

B’Nai B’Rith Antidefamation League 1999 Hate

- Pre rrrrrTTTrriTirTriritiitiiii ttt 26

National Jury Project, Jurywork (1990) ............555 34

Aeschylus, The Eumenides ..........60.00000eeeeeeees 31

OPINIONS BELOW

The opinion of the New Jersey Supreme Court and

the dissent thereto (Pet. App. la-66a) were entered on

June 24, 1999, and are reported at 159 N.J. 7, 731 A.2d 485

(1999). The opinion of the Superior Court of New Jersey,

Appellate Division and the dissent and concurrence

thereto (Pet. App. 67a-94a) were entered on August 19,

1997, and are reported at 304 N.J. Super. 147, 698 A.2d

1265 (App. Div. 1997). The oral opinion of Superior Court,

Law Division, Judge Rushton Ridgway and transcript of

motion and sentencing are attached in the Appendix

hereto at Pet. App. 95a to 163a.

JURISDICTION

The New Jersey Supreme Court entered its judgment

on June 24, 1999. Petitioner Charles C. Apprendi, Jr.

timely filed a petition for certiorari on September 17,

1999. This Court granted the petition on November 29,

1999. The Court has jurisdiction pursuant to 28 U.S.C.

§ 1257(a).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

U.S. Const. amend. V

No person shall be held to answer for a

capital, or otherwise infamous crime, unless on

a presentment or indictment of a Grand Jury,

except in cases arising in the land or naval

forces, or in the Militia, when in actual service

in time of War or public danger; nor shall any

person be subject for the same offense to be

twice put in jeopardy of life or limb, nor shall be

compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty,

or property, without due process of law; nor

shall private property be taken for public use

without just compensation.

U.S. Const. amend. VI

In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public trial,

by an impartial jury of the State and district

wherein the crime shall have been committed;

which district shall have been previously ascer-

tained by law, and to be informed of the nature

and cause of the accusation; to be confronted

with the witnesses against him; to have com-

pulsory process for obtaining witnesses in his

favor, and to have the assistance of counsel for

his defense.

N.J. Stat. Ann. § 2C:44-3. Criteria for Sentence of

Extended Term of Imprisonment.

The court may, upon application of the

prosecuting attorney, sentence a person who has

been convicted of a crime of the first, second or

third degree to an extended term of imprison-

ment if it finds one or more of the grounds

specified in subsection a., b., c., or f. of this

section. The court shall, upon application of the

prosecuting attorney, sentence a person who has

been convicted of a crime, other than a violation

of N.J.S.A. 2C:12-1a., N.J.S.A. 2C:33-4, or a viola-

tion of N.J.S.A. 2C:14-2 or 2C:14-3 if the grounds

for the application is purpose to intimidate

because of gender, to an extended term if it

finds, by a preponderance of the evidence, the

grounds in subsection e... .

e. The defendant in committing the crime

acted with a purpose to intimidate an individual

or group of individuals because of race, color,

gender, handicap, religion, sexual orientation or

ethnicity.

STATEMENT OF THE CASE

This case squarely presents constitutional issues

addressed, but not conclusively resolved, in Jones v.

United States, 119 S.Ct. 1215 (1999): the constitutional

limitations upon legislative authority to specify how, and

by whom, critical facts are determined iii a criminal case.

The specific issue here is whether a state legislature can

require that a judge will decide, by a mere preponderance

of the evidence, a defendant’s mental state during the

conduct at issue, and thereby dramatically increase his or

her maximum sentence. The New Jersey statute in ques-

tion here, N.J. Stat. Ann. § 2C:44-3e., expressly provides

that the judge, not the jury, shall decide whether the hate

crime statute applies by assessing the evidence under a

preponderance of the evidence standard rather than the

beyond a reasonable doubt standard. This statute

requires the judge to determine the purpose or mental

state with which the defendant committed the predicate

act. In this case, such a finding doubled the maximum

sentence exposure from ten to twenty years.

It is equally important to emphasize what issues are

not addressed in this case. This case is not a challenge to

New Jersey's ability to make criminally liable those per-

sons who engage in hate crimes. Nor is it a challenge to

the State’s ability to define the facts whose proof is essen-

tial in order to obtain convictions of those whose conduct

constitutes what the State defines as a “hate crime.”

Instead, this case concerns the constitutionality of the

procedures used to establish such liability. Put simply, it

is about whether, as the United States Constitution

demands, the facts which constitute such crimes are to be

determined, after fair notice and beyond a reasonable

doubt, by the fact-finding judgment of a jury or, as was

the case here, a state may relegate that question to the

individual discretion of a judge using the minimum pos-

sible standard of proof.

In 1990 the New Jersey Legislature enacted the “Eth-

nic Intimidation Act,” L. 1990, c. 282 (“the Act”), to

expand the State’s preexisting hate crime statute, L. 1981,

c. 282. The Act created aggravated forms of assault and

harassment where a defendant acts with a biased purpose

in selecting a victim (elevating a disorderly persons

offense for assault and a petty disorderly persons offense

for harassment to crimes of the fourth degree). See N.J.

Stat. Ann. § 2C:12-le., 33-4d. More importantly, the Act

added a blanket provision, N.J. Stat. Ann. § 2C:44-3e.,

requiring an extended term of imprisonment for other

crimes of the first, second, or third degree where “the

defendant in committing the crime acted with a purpose

to intimidate an individual or group of individuals

because of race, color, gender, handicap, religion, sexual

orientation or ethnicity.” This has the effect in Petitioner’s

case, and in many other cases, of doubling the maximum

sentence for the primary offense.' N.J. Stat. Ann.

§ 2C:44-3e. effectively gives to the judge, rather than the

jury, the responsibility to determine whether an individ-

ual committed a hate crime, and it directs the judge to

make that determination based on a mere preponderance

of the evidence.

On December 22, 1994, Petitioner Charles Apprendi,

Jr. (“Petitioner”), a thirty-seven year old pharmacist and

first-time offender, was arrested for shooting at the home

of one of his neighbors. Mr. Apprendi is white; the neigh-

bors are black. He ultimately negotiated a plea agreement

whereby he pled guilty to two counts of possession of a

firearm for an unlawful purpose (for the December 22

incident and one previous incident), a second degree

crime, N.J. Stat. Ann. § 2C:39-4a., and to one count of

unlawful possession of a prohibited weapon, N.J. Stat.

Ann. § 2C:39-3a., a third degree crime. Under the terms of

the plea agreement, the State reserved the right to seek an

extended sentence under N.J. Stat. Ann. § 2C:44-3e. for

the December 22 shooting incident, and Petitioner

reserved the right to challenge the constitutionality of

that section.

1 Petitioner’s primary crime (possession of a weapon for

an unlawful purpose) would ordinarily be subject to a prison

term of between 5 and 10 years. See N.J. Stat. Ann. § 2C:39-4a.,

43-6a.(2). Under N.J. Stat. Ann. § 2C:44-3e., the maximum and

minimum sentence for Petitioner’s second degree offense

doubles to between 10 and 20 years. Compare id. with N.J. Stat.

Ann. § 2C:43-7a.(3).

The shooting at issue occurred at approximately 2:04

a.m. on December 22, 1994. At approximately 3:05 a.m.

that same morning Petitioner confessed to Vineland

Police that he had fired approximately four or five rounds

from a .22 caliber rifle at the house. No written or

recorded oral statement was given by Petitioner, but an

officer did testify at a plenary hearing before the trial

court that at approximately 6:04 a.m. Petitioner “told me

he fired shots at the home because there were black

people living there.” (Pet. App. 175a, 250a.) Defendant's

psychological infirmities were explored in a September 5,

1995 plenary hearing, at which time Judge Rushton Ridg-

way heard testimony from Clinical and Forensic Psychol-

ogist Gerald Cooke, character witnesses, and Defendant

Charles Apprendi. Dr. Cooke opined that the Petitioner

shot at the house because he suffered from an impulsive

destructive disorder brought about when the front door

of the house caught his attention because it was purple

with a big pane of glass.

Petitioner appeared at a plenary hearing before Judge

Ridgway on September 5, 1995 to determine his state of

mind at the time of the shooting. (Pet. App. 164a-301a.)

At the hearing, Petitioner presented evidence to suggest

that he did not have the requisite purpose or intent

necessary to support a finding that he had violated the

hate crime statute. He presented the testimony and affi-

davits of several character witnesses, black and white,

who testified that Mr. Apprendi regularly interacted with

and socialized with African-Americans and did not have

a reputation among his family, friends, and acquaintances

for racially prejudiced attitudes, statements, or actions.

(Pet. App. 183a-205a.)

Petitioner denied that he had acted out of racial bias

(Pet. App. 242a) or that he harbored any racist views.

(Pet. App. 245a.) He testified that he had had several

vodka and tonic drinks in the hours prior to the shooting

incident and that he had taken a number of prescription

medications earlier that day and evening: “a couple” of

Lomotil (a prescription medication for stomach prob-

lems), one Dilaudid (an opiate), and several Ativans

(tranquilizers). (Pet. App. 238a-239a.) He testified that the

combined effects of the drugs, alcohol and physical

exhaustion left him “dizzy” and “out of it,” “like a - a

stoned drunk,” intoxicated, even if he did not appear so.

(Pet. App. 249a.) Immediately after the shooting incident

he felt “strange,” as if he were “in a cloud somewhere.”

(Pet. App. 237a.)

Mr. Apprendi testified that the interrogating officer

first mentioned race during the interrogation (Pet. App.

24la) and that he gave a false confession to the officer

because he was irrational and scared. (Pet. App. 242a.) He

testified that the interrogating officer tried to intimidate

him by telling him that there were “a lot of homosexuals

and AIDS in jail” and a large prison population of blacks

who would assault him when they discovered the nature

of his crime. Petitioner testified that the officer promised

that if he (Apprendi) cooperated, the officer would try to

make it easier on him. (Pet. App. 242a-243a.) As to the

shooting, Mr. Apprendi testified that he fired at his

neighbors’ front door because the glass and purple door

attracted his attention, sparking an urge to destroy it.

(Pet. App. 251a.)

The defense presented the unrebutted testimony of

Dr. Cooke, who had examined Mr. Apprendi on February

15, 1995 and given him a battery of personality and

psychological tests. Dr. Cooke testified that Petitioner

told him that he shot at the door because he was drunk

and drug-intoxicated, and the door caught his attention

because it was purple and had a large plate of glass. (Pet.

App. at 210a-21la.) Dr. Cooke opined that this type of

behavior was consistent with Petitioner's obsessive-com-

pulsive personality disorder and alcohol abuse. (Pet.

App. 216a, 234a.)

Dr. Cooke diagnosed that Petitioner suffers from an

obsessive compulsive disorder, which includes anxiety,

gastrointestinal symptoms, kleptomania, loss of control of

anger impulses, depression, and drug and alcohol abuse.

(Pet. App. 216a-217a.) Dr. Cooke suggested that the

impulse disorder of kleptomania explained Mr. Appren-

di’s accumulation of guns, ammunition, and various

other tools and metal objects. Id.

Dr. Cooke further testified that his clinical examina-

tion of Petitioner revealed that he also suffered from a

cyclothymic condition, similar to a bipolar disorder,

where “the individual’s moods go from being excited and

hypomanic and elated to being depressed and lethargic.”

Id. On direct examination, Dr. Cooke testified that in the

fall and winter of 1994 the Petitioner's psychological

disorders and the drugs and alcohol produced a synergis-

tic effect: “You've got the combination with an individual

who is anxious and over-controlled, but who is disin-

hibited under the effect of those drugs and alcohol. And

you've got an individual who when he becomes emo-

tional also shows interference. So all three factors really

combine into fear of [sic] judgment and reasoning and

impulse control.”? (Pet. App. 218a.)

With respect to Mr. Apprendi’s purported confession

during the interrogation that he shot at the house because

a black family was living there, Dr. Cooke testified as

follows:

Here we have a very anxious man. One who

feels very vulnerable. One who feels very inade-

quate. And one who would say or do just about

anything to get out of a frightening anxiety-

arousing situation.

Q. Even tell a lie?

A. Tell somebody a lie if it was what he

thought that person wanted to hear in order

to stop the interrogation and let him out of

the situation. . . . I'm only saying that he

has the kind of personality of an individual

who would do that to get out of this kind of

situation. (Pet. App. 219a.)°

? There appears to be an error in the transcript here. To

make sense, the sentence should read: “So all three factors really

combine to interfere with judgment and reasoning and impulse

control.”

* Later, during cross examination, Dr. Cooke explained

further that “his personality is consistent with an individual

who is an interrogation situation where his anxiety would be

aroused in the kind of person that would just - you know, in his

own mind he'd be saying to himself, ‘I’ve got to tell them

whatever they want to hear so I can get out of this.’ ” (Pet. App.

224a-225a.)

At the plenary hearing and sentencing,* the prosecu-

tion submitted the following evidence to the court: the

testimony of the officer who interrogated Mr. Apprendi

immediately following his arrest (who testified that the

police did not attempt to coerce Mr. Apprendi or to

suggest to him the racial bias motive (Pet. App. 286a),

that Mr. Apprendi appeared lucid during the interroga-

tion (Pet. App. 284a), and that he orally admitted shoot-

ing at the house on two instances because black people

lived there (Pet. App. 176a)); and the testimony of Mr.

Michael Fowlkes (the homeowner). Mr. Fowlkes testified

that his family was the only black family that lived in the

immediate neighborhood (Pet. App. 102a), that the home

had been struck by bullets on four occasions (Pet. App.

104a-105a), and that his front door was constructed of

clear glass with a six-inch burgundy border. (Pet. App.

108a.)

After hearing all the evidence, Judge Ridgway noted

that the issue of racial motivation “is one which the

legislature has left to the discretion of the Court” to be

determined by a “preponderance of the evidence.” (Pet.

App. 139a.) As to Petitioner’s particular mental state,

Judge Ridgway declared:

And the Court also takes into consideration that,

as I said before, I’m satisfied the defendant has a

psychiatric problem. And I’m satisfied, quite

frankly, that this racial bias, would not have

4 At the request of the prosecutor, the court permitted the

owner of the home to testify at Petitioner's sentencing on

September 29, 1997.

manifested itself, except for the psychiatric

problem that he has. (Pet. App. 160a.)

This statement makes unclear whether Judge Ridg-

way would have found Petitioner guilty of the hate crime

had the standard of proof been beyond a reasonable

doubt. What is clear is that Judge Ridgway invoked this

enhanced penalty by a standard of mere preponderance

of the evidence. After summarizing the evidence for and

against a finding of a racially biased purpose, (Pet. App.

139a-144a), Judge Ridgway ultimately concluded that the

standard of proof had been met. (Pet. App. 144a.) Accord-

ingly, he applied the hate crime enhancement and sen-

tenced Petitioner to twelve years of incarceration on the

first firearm count, with a four-year period of parole

ineligibility; seven years on the remaining firearm count;

and three years on the prohibited weapons count, with

the sentences to run concurrently. (Pet. App. 161a.)

Mr. Apprendi appealed his enhanced sentence under

N.J. Stat. Ann. § 2C:44-3e., on the grounds that it was

unconstitutionally vague and violated his constitutional

right to due process by permitting a judge to determine

his state of mind based on a preponderance of the evi-

dence. (Pet. App. 82a.) The Superior Court of New Jersey,

Appellate Division, affirmed the enhanced sentence. New

Jersey v. Charles Apprendi, Jr., 698 A.2d 1265 (N.J. Super.

Ct. App. Div. 1997) (Pet. App. 67a-94a). The Appellate

Division held that since the New Jersey legislature had

not defined the “purpose to intimidate” as an element of

the crime, the State did not have to prove it beyond a

reasonable doubt. (Pet. App 87a.) The Appellate Division

drew a substantive distinction between “motive” and

“intent” and concluded that N.J. Stat. Ann. § 2C:44-3e.

merely addressed motive - a traditional sentencing ele-

ment under New Jersey law.° (Pet. App. 89a-93a.)

In a dissenting opinion, Judge Wecker observed that

the definition of “element” in the New Jersey Code of

Criminal Conduct itself, as well as the historical treat-

ment of a defendant’s mental state, dictated that the

“purpose to intimidate” described in N.J. Stat. Ann.

§ 2C:44-3e. be treated as an “element” subject to the

constitutional requirements of a jury determination and

proof beyond a reasonable doubt. (Pet. App. 71a-75a.) She

concluded that “[t]he State’s power to define away the

elements of the crime cannot extend . . . to defining away

the actor’s culpable purpose as an element of the crime -

a crime for which this defendant received a sentence

beyond the ordinary term for a second degree offense.”

(Pet. App. 70a.)

The Supreme Court of New Jersey affirmed the deci-

sion of the Appellate Division in New Jersey v. Charles

Apprendi, ]r., 304 N.J. Super. 147, 731 A.2d 485 (N.J. 1999)

(Pet. App. la-66a.) The court applied the five-factor test

culled from McMillan v. Pennsylvania, 477 U.S. 79 (1986),

and concluded that the “hate-crime enhancer” in N.J.

Stat. Ann. § 2C:44-3e. approximates the “visible posses-

sion of a firearm” sentencing factor in McMillan in all

respects except that it alters the maximum penalty for the

underlying crime. (Pet. App. 20a-21a). The court did not

find the increase in the maximum penalty significant in

° The Court rejected the vagueness argument based on

prior precedent and recent amendments to the statute, made

prior to Apprendi’s sentence, that remedied the alleged

vagueness.

—

light of this Court’s decision in Almendarez-Torres v.

United States, 523 U.S. 224 (1998), which it believed to be

controlling. (Pet. App. 19a-20a, 22a.) The court suggested

that N.J. Stat. Ann. § 2C:44-3e. actually helped criminal

defendants by excluding evidence of bias that would

otherwise inflame the jury. (Pet. App. 24a.) Nevertheless,

the court recognized that its holding was necessarily

tentative because “the final word on this subject will have

to come from the United States Supreme Court.” Id.

Two Justices dissented, concluding that the deter-

mination that “a defendant’s mental state in committing

the subject offense encompassed a purpose to intimidate

because of race, necessarily involves a finding so integral

to the charged offense that it must be characterized as an

element thereof.” (Pet. App. 30a.) The dissent emphasized

that N.J. Stat. Ann. § 2C:44-3e., unlike the recidivism at

issue in Almendarez-Torres and the serious bodily harm at

issue in Jones, involves the conduct of a criminal defen-

dant, specifically, his or her purpose in committing the

charged offense. (See Pet. App. 60a (citing Jones, 119 S.Ct.

at 1238 (Kennedy, J., dissenting)).) The dissent further

noted that McMillan v. Pennsylvania, 477 U.S. 79 (1986),

which upheld the visible possession of a firearm as a

sentencing factor, did not “require[] the sentencer to

make findings of fact, such as are required by N.J. Stat.

Ann. § 2C:44-3e., about the mental state of a defendant

when he committed the subject offense.” (Pet. App. 64a.).

Finally, the dissent noted that the majority’s concern

about inflaming the jury could be readily addressed by

bifurcating the charges, a practice followed in New Jersey

in other instances, such as capital cases.

SUMMARY OF ARGUMENT

The New Jersey Supreme Court erred when it con-

cluded that the “penalty enhancement” provision in N.].

Stat. Ann. § 2C:44-3e. does not offend the Constitution.

The decision should be reversed. Where, as here, the

determination of a criminal defendant’s mental state can

increase the maximum penalty for a crime, the Constitu-

tion requires that the determination be made by a jury

and proven beyond a reasonable doubt. New Jersey can-

not avoid the requirements of the Fifth and Sixth Amend-

ments by merely defining the fundamental element of its

hate crime statute as a sentencing factor.

————

ARGUMENT

I. BEFORE DOUBLING A STATUTORY MAXIMUM

SENTENCE FROM TEN YEARS TO TWENTY

YEARS ON THE BASIS OF A DEFENDANT'S MEN-

TAL STATE, THE PROSECUTION MUST PROVE

THE EXISTENCE OF THAT MENTAL STATE

BEYOND A REASONABLE DOUBT TO A JURY.

A. Under The Due Process Clause Of The Fifth

Amendment And The Notice And Jury Trial

Guarantees Of The Sixth Amendment Any Fact

(Other Than Recidivism) Including A Defen-

dant’s Mental State, That Increases The Maxi-

mum Penalty For A Crime Must Be Charged In

An Indictment, Submitted To A Jury And

Proven Beyond A Reasonable Doubt.

The New Jersey statute at issue here imposes upon

the defendant charged with a “racially biased crime”®

both a substantially lengthened imprisonment and the

stigma of bigotry on the slimmest burden of proof recog-

nized in American jurisprudence - a preponderance of

the evidence. This is not sustainable.

N.J. Stat. Ann. § 2C:44-3e. violates the due process

protections guaranteed by the Fifth Amendment. The

Due Process Clause “protects the accused against convic-

tion except upon proof beyond a reasonable doubt of

every fact necessary to constitute the crime with which he

is charged.” In re Winship, 397 U.S. 358, 364 (1970). The

justification for this principle is clear:

* Primarily for purposes of convenience, but also because

the case before the Court involves alleged racial bias, we will

refer to the mens rea involved as “racial bias,” although the reach

of the statute includes other prejudicial purposes as well.

The reasonable doubt standard plays a vital role

in the American scheme of criminal procedure.

It is a prime instrument for reducing the risk of

convictions resting on factual error. The stan-

dard provides concrete substance for the pre-

sumption of innocence - that bedrock

“axiomatic and elementary” principle whose

“enforcement lies at the foundation of the

administration of our criminal law.” Coffin v.

United States, [156 U.S. 432, 453 (1895)]. .. .

Moreover, use of the reasonable doubt standard

is indispensable to command the respect and

confidence of the community in applications of

the criminal law. It is critical that the moral force

of the criminal law not be diluted by a standard

of proof that leaves people in doubt whether

innocent men are being condemned. It is also

important in our free society that every individ-

ual going about his ordinary affairs have confi-

dence that his government cannot adjudge him

guilty of a criminal offense without convincing a

proper factfinder of his guilt without utmost

certainty.

Id.

N.J. Stat. Ann. § 2C:44-3e. violates both the spirit and

letter of Winship. It threatens to “dilute the force of the

criminal law” by subjecting defendants to harsh criminal

penalties, over and above those imposed for the underly-

ing offense, without affording them the protections of the

reasonable doubt standard. It does so by labeling the

essential element of the New Jersey hate crime law — the

“purpose to intimidate . . . because of race” - a penalty

enhancement provision rather than an element of an

aggravated crime. This places a crucial factual determina-

tion, the defendant’s state of mind at the time of the

offense, in the hands of a judge to be determined by a

mere preponderance of the evidence. The decisive issue

in this case is whether, in so doing, New Jersey can avoid

the constitutional requirements that would otherwise

attach to a determination of a defendant’s mental state. It

cannot.

Although states generally have the authority to

define crimes and prescribe penalties, see McMillan v.

Pennsylvania, 477 U.S. 79, 86 (1986), requirements of due

process may not be evaded by merely redefining “the

elements that constitute different crimes, characterizing

them as factors that bear solely on the extent of punish-

ment.” Mullaney v. Wilbur, 421 U.S. 684, 698 (1975); accord

Patterson v. New York, 432 U.S. 197, 210 (1977) (recogniz-

ing that there are “obviously constitutional limits beyond

which the States may not go” in reallocating burdens of

proof by labeling elements of crimes as affirmative

defenses).

Recently, the Court stated the following principle:

“{U]nder the Due Process Clause of the Fifth Amendment

and the notice and jury trial guarantees of the Sixth

Amendment, any fact (other than prior conviction) that

increases the maximum penalty for a crime must be charged in

the indictment, submitted to a jury, and proven beyond a

reasonable doubt.” Jones v. United States, 119 S.Ct. 1215,

1224, n. 6 (emphasis added). Although the Court articu-

lated this standard as a means of casting doubt on the

Government's proposed interpretation of the carjacking

statute, it reflects the Court’s most recent pronouncement

on the issues squarely presented by this appeal, and it

reiterates the Court’s commitment to the principles estab-

lished in Winship.

Under the standard articulated in Jones, N.J. Stat.

Ann. § 2C:44-3e. cannot pass constitutional muster, as it

manifestly “increases the maximum penalty for a crime”

based on a judge’s determination of a crucial fact under a

mere preponderance of the evidence standard. New Jer-

sey’s statute, even more clearly than the statute in Jones,

includes language that this Court held to constitute ele-

ments of an offense rather than mere sentencing consider-

ations. Id. at 1218-1222. N.J. Stat. Ann. § 2C:44-3e. “not

only provide[s] for steeply higher penalties, but condi-

tion[s] them on further facts that seem quite as important

as the elements in the [principal offense].” Id. at 1218. The

“hate” element of a hate crime cannot reasonably be

characterized as a mere sentencing consideration; it is the

essence of the crime itself.

The additional penalty imposed by N.J. Stat. Ann.

§ 2C:44-3e. is two-pronged: a criminal defendant can be

branded as a racist and be imprisoned for twice as long as

otherwise permitted by law.” Thus, the determination of a

defendant’s mental state greatly increases both the stigma

7 This statute permits the judge to effectively increase the

degree of a particular offense. Thus, Petitioner, who pled guilty

to a second degree offense (with a 10-year maximum sentence),

could have been sentenced at the first degree level (up to 20

years). If he had been convicted of a first degree offense, his

maximum sentence would have increased from 20 years to life

imprisonment. Accord Jones, 119 S.Ct. at 1224 (“[A] jury finding

of fact necessary for a maximum 15-year sentence would merely

open the door to a judicial finding sufficient for life

imprisonment.”).

associated with the crime and the maximum length of

incarceration. Such a determination should not be made

without the protections afforded by the reasonable doubt

standard. See McMillan, 477 U.S. at 103 (“[I]f a State

provides that a specific component of a prohibited trans-

action give rise both to a special stigma and to a special

punishment, that component must be treated as a ‘fact

necessary to constitute the crime’ within the meaning of

our holding in In re Winship.”) (Stevens, J., dissenting).

Ever since its decision in Winship, this Court has

repeatedly held that a higher standard of proof than that

“necessary to award money damages in an ordinary civil

action,” Santosky v. Kramer, 455 U.S. 745, 747 (1982), must

be applied in situations creating grave and permanent

injury to a citizen. Since Mathews v. Eldridge, 424 U.S. 319

(1976) the Court has held that a higher standard than

preponderance (the “clear and convincing” standard)

must be applied in proceedings involving civil commit-

ment, deportation, denaturalization, and the termination

of parental rights. See, e.g., Addington v. Texas, 441 U‘S.

418, 427 (1979) (civil commitment proceedings); Woodby v.

INS, 385 U.S. 276, 286 (1966) (deportation proceedings);

Chaunt v. United States, 364 U.S. 350, 353 (1960)

(denaturalization proceedings); Santosky v. Kramer, 455

U.S. 745, 769 (1982) (termination of parental rights). See

also United States v. Hopper, 177 F.3d 824 (9th Cir. 1999). If

a preponderance of evidence standard was inadequate to

protect the interests at stake in these civil proceedings,

then a preponderance standard clearly is inadequate

here, where a defendant faces doubled criminal sanctions.

The application of each of the Mathews factors would, at a

minimum, require the application of something more

than a preponderance of evidence where a defendant is

subjected to both a greater stigma and a greater maxi-

mum sentence. Under Mathews and its progeny, N.J. Stat.

Ann. § 2C:44-3e. plainly is inadequate.*

This Court explained in Rivera v. Minich, 483 U.S. 574,

581 (1987), why a higher standard is appropriate:

“[Blecause an adverse ruling in a criminal, civil commit-

ment or termination proceeding has especially severe

consequences for the individuals affected, it is appropri-

ate for society to impose upon itself a disproportionate

share of the risk of error in sucn proceedings.” See also

Addington v. Texas, 441 U.S. 418, 423 (1979) (“Ina criminal

case... the interests of the defendant are of such magni-

tude that historically and without any explicit constitu-

tional requirement they have been protected by standards

of proof designed to exclude as nearly as possible the

likelihood of an erroneous judgment.”).

8 Petitioner has identified only one other state statute that

increased a maximum sentence based upon a finding by a court

of a defendant’s purpose, and that statute was held

unconstitutional by the state’s highest court. In People v.

Hernandez, 757 P.2d 1013 (Cal. 1988) the defendant was charged

with kidnapping. The trial court, at sentencing, imposed a

three-year additional sentence pursuant to § 667.8 of the

California Penal Code, which allowed such an increase if the

kidnapping was “for the purpose of committing a sexual

offense.” The California Supreme Court held the additional

sentence unconstitutional because the statute had not been pled

or proven at trial. The Court declared: “[T]he reference to mere

motive .. . downgrades the importance of the mental element

required by the statute and would be inconsistent with the

construction given to similar language in other penal statutes.”

Id. at 1016.

B. Assessing A Defendant's Mental State Presents

A Task Fraught With Uncertainty; The Risk Of

Error Requires Proof Beyond A Reasonable

Doubt.

The uncertainty inherent in assessing a criminal

defendant's “purpose” or intent necessitates a higher

standard of proof. This Court has recently reaffirmed the

centrality of mental state - and of mental states generally

- to the criminal law. In Staples v. United States, 511 U S.

600, 605-06 (1994), and again in United States v. X-Citement

Video, Inc., 513 U.S. 64, 71 (1994), the Court explained that

the mens rea element is so firmly rooted in our traditions

that it is presumed where a statute, by its terms, does not

include it.

The primary function of a standard of proof is “to

minimize the risk of erroneous decisions.” Greenholtz v.

Nebraska Penal Inmates, 442 U.S. 1, 13 (1979). As the Court

explained in Addington, the purpose of a standard of

proof is “to instruct the fact finder concerning the degree

of confidence our society thinks he should have in the

correctness of the factual conclusions for a particular type

of adjudication.” 441 U.S. at 423; see also Mathews, 424

U.S. at 344. Thus, the reasonable doubt standard reflects

society’s desire to minimize error in assigning criminal

guilt. As Justice Harlan stated in his concurring opinion

in Winship, the reasonable doubt standard in criminal

cases is “bottomed on a fundamenta! value determination

of our society that it is far worse to convict an innocent

man than to let a guilty man go free.” 397 U.S. at 372.

The facts of this case exemplify the difficulties inher-

ent in — and the risks of error associated with — determin-

ing a defendant's mental state. It is undisputed that Mr.

Apprendi was intoxicated when he fired his gun at his

neighbors’ purple door. Moreover, substantial evidence

was submitted at the sentencing hearing to suggest that

he suffered from psychological difficulties. Judge Ridg-

way conceded as much during the hearing:

I'm satisfied the defendant has a psychiatric

problem. And I'm satisfied, quite frankly, that

this racial bias would not have manifested itself

except for the psychiatric problem that he

has. . . . I'm satisfied that [these acts] represent

an aberration. (Pet. App. 160a-161a.)

This declaration by the trial judge who sentenced the

petitioner shows that his acts were undoubted affected by

his psychiatric turmoil. These circumstances suggest the

difficulty of the factual inquiry into Petitioner's state of

mind. Judge Ridgway was required to subjectively weigh

competing evidence and to balance facts and inferences

against each other:

THE COURT: Very well. Gentlemen, as you're

very well aware the statute

which we're talking about,

' 2C:44-3, provides for an

enhanced penalty when the

Court is satisfied by a prepon-

derance of the evidence that the

actions of a defendant are moti-

vated by racial bias. (Pet. App.

138a.)

Because Judge Ridgway utilized the preponderance

of evidence standard of proof, he may well have reached

a different conclusion had he been required to determine

the defendant’s “purpose” beyond a reasonable doubt.

We submit that had the trial judge required the State

to show racial bias beyond a reasonable doubt, the Court

might well have concluded that the State had failed to

carry its burden that Mr. Apprendi’s actions were moti-

vated by racial bias, and not by other mental infirmities.

We do know that the trial court decided the mental state

of the petitioner by the civil standard of mere prepon-

derance of the evidence.

Petitioner respectfully contends that ascertaining

any defendant’s mental state, particularly one like Mr.

Apprendi, who was mentally disabled by an obsessive

compulsive disorder and drug and alcohol abuse at the

time he committed the predicate crimes, is rife with peril

and should be decided by a jury upon proof beyond a

reasonable doubt.

In Culombe v. Connecticut, this Court wrote:

[Djetermination of how the accused reacted to

the external facts, and of the legal significance

of how he reacted — although distinct as a matter

of abstract analysis, becomes] in practical oper-

ation inextricably interwoven. This is so, in part,

because the apprehension of mental states is

almost invariably a matter of induction, more or

less imprecise, and the margin of error which is

thus introduced into the finding of “fact” must

be accounted for in the formulation and applica-

tion of the “rule” designed to cope with such

classes of facts.

367 U.S. 568, 604 (1961).

This uncertainty in the factual determination distin-

guishes N.J. Stat. Ann. § 2C:44-3e. from the sentencing

provisions at issue in McMillan and Almendarez-Torres, 523

U.S. 224 (1998). The Pennsylvania statute at issue in

McMillan provided an enhanced minimum sentence (the

maximum sentence remained unchanged) for certain enu-

merated felonies where the sentencing judge determined

by a preponderance that the defendant “visibly possessed

a firearm.” 477 U.S. at 81. In upholding this statutory

scheme, the Court was careful to observe that “the risk of

error in the context of a 9712 proceeding is comparatively

slight — visible possession is a simple, straightforward

issue susceptible of objective proof.” Id. at 84.9 Similarly,

in Almendarez-Torres, the risk of error in ascertaining

whether a defendant has a prior criminal record was

remote, and the Court repeatedly emphasized the unique

nature of recidivism as a sentencing factor. 523 U.S. at

243-244. Unlike the determination of a defendant’s men-

tal state, recidivism involves the mechanistic determina-

tion of whether a criminal defendant had any prior

convictions by simply reading the criminal record or rap

sheet. It involves no discretion or measured judgment,

careful weighing of the facts and inferences (roles typ-

ically assigned to a jury rather than a judge), and it is

% McMillan is distinguishable on other grounds as well. In

McMillan, the Court emphasized that the case did not transgress

constitutional limits because it did not “alter the maximum

penalty for a crime” but merely “limit[ed] the sentencing court's

discretion in selecting a penalty within the range already

available to it ....” Id. at 87-88. By contrast here, N.J. Stat. Ann.

§ 2C:44-3e. doubles the possible maximum penalty for a crime,

greatly increasing the range of possible sentences.

objectively verifiable. The Court also qualified its holding

with the telling statement that (because defendant admit-

ted his recidivism and would have received a sentence

enhancement regardless of the burden of proof): “[WJe

express no view on whether some heightened standard of

proof might apply to sentencing determinations that bear

significantly on the severity of the sentence.” Id. at 248.

See also United States v. Hopper, 177 F.3d 824 (9th Cir.

1999) (holding that whenever there is an extreme increase

in a sentence, even within the sentencing guidelines, the

standard of proof should not be preponderance); cf.

United States v. Kikumura, 918 F.2d 1084, 1102 (3d Cir.

1990) (employing a clear and convincing evidence stan-

dard when the sentence was increased from three years to

thirty, still within the maximum).

C. New Jersey’s Approach Is Unusual And

Extreme.

1. Only New Jersey Expressly Uses A Prepon-

derance Of The Evidence Determination Of

A Defendant's Mental State To Effectively

Double The Maximum Punishment.

In determining whether a higher standard of proof

should be required, this Court has looked to the practice

in other states. See, e.g., Rivera v. Minnich, 483 U.S. 574,

578-79 (1987). In Appendix A, petitioner has included a

survey of all state statutes that appear to be relevant to

the issue of “hate” crimes and the requisite procedural

protections. '°

10 Petitioners include in Appendix A all state statutes which

appear to be relevant to this issue. In the vast majority of

Appendix A identifies fifty-four statutes from forty-

two states (including the District of Columbia) which

statutes, (e.g.) the atute clearly enunciates a separate crime,

which requires proof beyond a reasonable doubt of the racial

intent. In a number of other instances, the statute is not clear

whether the racial intent must be proved by such a standard.

Petitioners note that the Wisconsin statute involved in Mitchell

v. Wisconsin expressly declares that the finder of fact is to

determine racial bias beyond a reasonable doubt in a special

verdict. Thus, even if Wisconsin’s statute creates a “sentence

enhancer,” rather than an “element,” that state has expressly

addressed this issue, and resolved it consonant with the long-

standing history discussed in the text. Moreover, the Wisconsin

Statute is the one used by the Anti Defamation League as its

model for proposed legislation. See B’Nai B’Rith Anti-

Defamation League 1999 Hate Crimes, p. 19. Finally, while some

statutes appear to address the issue as a “sentence enhancer”,

these statutes are ambiguous on the standard of care to be

applied. Petitioner’s Appendix, attached to this brief, describes

all relevant state racial bias statutes. Petitioners have located

over two hundred statutes that might be considered “hate

crime” statutes. Many of these, however, are aimed at conduct

targeting specific places, without regard to the specific mental

state impelling the act (e.g., desecration of religious buildings,

cemeteries, etc). (For example, Oklahoma Statutes Annotated,

§ 1765 states as follows: “Any person who willfully breaks,

defaces or otherwise injures any house of worship or any part

thereof, any appurtenance thereto, or any book, furniture,

ornament, musical instrument, article of silver or plated ware,

or other chattel kept therein for use in connection with religious

worship shall be guilty of a felony.”) Moreover, none of these

statutes specifies that the purpose for which the desecration is

done is relevant in any way. While one might easily speculate

that desecration of a mosque or synagogue implies religious

bias, the statutes do not make such bias relevant. We have,

therefore, not included these statutes in our survey. Many states

provide generally that anyone intentionally interfering with the

civil rights of another, or assaulting them because of their

WIS ee

seem to use racial (or religious or gender or sexual) bias

as a relevant factor. (Several states have each kind of

exercise of their civil rights, commits a crime. We have also not

included these statutes in the survey, although they also would

seem to require proof beyond a reasonable doubt of ihe intent to

act because of the civil rights of the victim.

The free standing statutes establish a new crime with a new

penalty for a specific conduct and mental state. A variation on

this theme establishes a new crime of “assault” or “harassment”

or some other conduct “because of bias” and increases the

penalty for the predicate crime. New Jersey itself has two of these

statutes, N.J. Stat. Ann. § 2C:12-le. and N.J. Stat. Ann. § 2C:33-4d.

We have assumed that the free standing statutes would

require the prosecutor to prove, beyond a reasonable doubt to a

jury, the specific mens rea indicated in the statute. In a few

instances, there is case law so indicating, but most of the

statutes are silent on this point, and there is no case law one way

or the other.

The case before the Court involves the other kind of statute

- an enhancement statute. These statutes allow increased

punishment based upon bias motivation. We have found

twenty-four statutes that appear to qualify under this label. Of

these, eight permit racial bias to allow an increase only within

the maximum sentence. One of these —- Kansas - expressly uses a

“clear and convincing evidence” standard. Sixteen allow an

increase in the maximum sentence. Of the remaining 16,

however, five (D.C., Florida, Mississippi, Rhode Island and

Wisconsin) expressly require proof beyond a reasonable doubt

of that motivation, and case law in another two (California and

Pennsylvania) seems to require such a standard. The rest are

silent on the standard of proof to be invoked, but few allow an

increase anywhere near the magnitude of New Jersey. Vermont,

for example, allows an increase of crimes punished by less than

5 years imprisonment, but if the underlying offense is itself

punishable by more than five years, racial bias may not increase

the maximum sentence.

statute, or, in some instances, several separate free stand-

ing statutes. See California, Connecticut, Illinois, Mon-

tana, Nevada, New Jersey, Rhode Island and West

Virginia.) These statutes are fairly separated into two

categories: (1) free stand and (2) enhancement.

The free standing statutes establish a new crime with

a new penalty for a specific conduct and mental state.

(For example, Idaho Code § 18-7902 states that a person is

guilty of ... “malicious harassment” if that person “mali-

ciously and with the specific intent to intimidate or

harass another person because of that person’s race,

color, religion, ancestry or national origin,” harms or

threatens to harm him. Malicious harassment is punish-

able by up to five years imprisonment. § 18-7903.) A

variation on this theme establishes a new crime of

“assault” or “harassment” or some other conduct

“because of bias” and increases the penalty for the predi-

cate crime. New Jersey itself has two of these statutes,

N.J. Stat. Ann. §§ 2C:12-le. and 2C:33-4d.!!

Only three states, North Carolina, Texas and New Jersey,

expressly invoke a standard less than beyond a reasonable

doubt. North Carolina’s increase applies only within the

maximum sentence, and Texas’ statute applies only to lesser

misdemeanors, not to felonies. Even then, the Texas statute

requires “an affirmative finding” of racial bias, which has been

interpreted as requiring “relevant and reliable” evidence.

Martinez v. State, 980 S.W. 2d 662, 667 (Tex. App. 1998).

Thus, no state except New Jersey expressly allows an

increase of double the sentence (or more) based upon a standard

less than beyond a reasonable doubt, whether that finding is

made by judge or jury.

1! Presumably, free standing statutes would require the

prosecutor to prove, beyond a reasonable doubt to a jury, the

The instant case involves the other category of stat-

ute - “enhancements.” These statutes allow increased

punishment based upon bias motivation. Twenty-four

state statutes appear to fit within this category. Of these,

eight permit racial bias to allow an increase only within

the maximum sentence. One of these —- Kansas — expressly

uses a “clear and convincing evidence” standard. Sixteen

allow an increase in the maximum sentence. Five of these

sixteen (D.C., Florida, Mississippi, Rhode Island and Wis-

consin), expressly require proof beyond a reasonable

doubt of that motivation, and case law in another two

(California and Pennsylvania) seems to require such a

standard. Six of the nine remaining are silent on the

standard of proof to be invoked, but few allow an

increase anywhere near the magnitude of New Jersey.

Vermont, for example, allows an increase in the maxi-

mum sentence only for crimes punished by less than 5

years imprisonment, but if the underlying offense is itself

punishable by more than five years, racial bias may not

increase the maximum sentence.

Only three states, North Carolina, Texas and New

Jersey, expressly invoke a standard less than beyond a

reasonable doubt. North Carolina’s increase applies only

within the maximum sentence, and Texas’ statute applies

only to lesser misdemeanors, not to felonies. Even then,

the Texas statute requires “an affirmative finding” of

racial bias, which has been interpreted as requiring “rele-

vant and reliable” evidence. Martinez v. State, 980 S.W. 2d

specific mens rea indicated in the statute. In a few instances,

there is case law so indicating, but most of the statutes are silent

on this point, and there is no case law one way or the other.

662, 667 (Tex. App. 1998). Thus, no state except New

Jersey expressly allows an increase of double the sentence

(or more) based upon a standard less than beyond a

reasonable doubt, whether that finding is made by judge

or jury.

Ironically, New Jersey itself appears to recognize the

need for proof beyond a reasonable doubt in charges of

racial bias. New Jersey’s Code of Criminal Justice defines

two specific offenses - one involving racial harassment

(N.J. Stat. Ann. § 2C:33-4d.), the other racial assault (N.J.

Stat. Ann. § 2C:12-le.) — that require proof of racial bias

beyond a reasonable doubt. In stark contrast to N.J. Stat.

Ann. § 2C:44-3e., conviction for one of these aggravated

offenses far less seriously increases the possible punish-

ment (from either thirty days or six months to eighteen

months under N.J. Stat. Ann. § 2C:43-6). Thus, New Jer-

sey seems to have it backwards: it requires a stringent

burden of proof for moderate penalties and a moderate

burden of proof for stringent penalties.

2. The Federal Sentencing Guidelines Recog-

nize That The Determination Of A Biased

Purpose In The Commission Of A Crime

Calls For The Highest Standard Of Proof.

That racial bias is strikingly different from virtually

every factor that increases a sentence has been recognized

not only by the vast majority of states, but also by Con-

gress. In 1994 Congress enacted Pub. L. 103-322, § 280003

of which instructed the Federal Sentencing Commission

to increase the base offense level three levels (essentially

an increase, within the maximum statutory sentence, of

1'/2-2 years), but only if “the finder of fact at trial deter-

mines beyond a reasonable doubt” that the crime is a hate

crime. See 28 U.S.C.A. § 994, Historical and Statutory

Notes. This appears to be the only time that Congress has

instructed the Sentencing Commission on the standard of

proof, and the only time that it has expressly required

proof beyond a reasonable doubt of a factor that will not

increase the statutory maximum.

Il. ANY FACT THAT RESULTS IN AN INCREASE OF

THE MAXIMUM SENTENCE (EXCEPT RECIDIV-

ISM) MUST BE RESOLVED BY A JURY.

A. The Question Of Intent Can Never Be Ruled As

A Question Of Law, But Must Always Be Sub-

mitted To The Jury.

N.J. Stat. Ann. § 2C:44-3e. runs afoul of this Court's

pronouncement in Jones that the Fifth and Sixth Amend-

ments require that “any fact (other than prior conviction)

that increases the maximum penalty for a crime must be

charged in an indictment, submitted to a jury, and proven

beyond a reasonable doubt.” 119 S.Ct. at 1223, fn. 6. This

pronouncement is merely the culmination of a long line

of cases protecting and expanding the right to a jury trial.

From the moment of its creation by Athena on the Are-

opagus,'? the jury has served as a bulwark against over-

zealous prosecutors and jaded judges. As this Court has

stated, the “essential feature of a jury . . . [is] the inter-

position between the accused and his accuser of the com-

mon sense judgment of a group of laymen... .” Williams

12 Aeschylus, The Eumenides.

v. Florida, 399 U.S. 78, 100 (1970). The jury has been the

embodiment of community norms - and community

judgment - since at least its restoration in the England of

Henry II.

Development of the role of the jury in this country -

recited by this Court most recently in Jones — illustrates

the critical role that juries play in American law. This

Court has piayed no small role in that development.

While many countries have restricted or eliminated the

role of juries in their legal systems, this Court has repeat-

edly defended the integrity of our jury system.!3

This Court has recently reaffirmed that juries, and

not judges, must decide critical issues in a criminal case.

See United States v. Gaudin, 515 U.S. 506 (1995). Indeed,

Gaudin is intriguingly on point. In that case, the govern-

ment sought to avoid a jury determination of the issue of

materiality by simply labeling it as something else (just as

N.J. Stat. Ann. § 2C:44-3e. seeks to remove the determina-

tion of a defendant’s purpose from the jury by labeling it

as a sentencing factor). In rejecting this semantic argu-

ment, the Court declared:

The existence of a unique historical exception to

this principle [trial by jury] - and an exception

that reduces the power of the jury precisely

when it is most important . . . would be so

13 For example, over the past thirty years this Court has

reinvigorated both the petit jury and the grand jury, even when

others have argued that these institutions have become relics of

the past. See, e.g., Batson v. Kentucky, 476 U.S. 79 (1986); Taylor v.

Louisiana, 419 U.S. 522 (1975); Duncan v. Louisiana, 391 U.S. 145

(1968).

extraordinary that the evidence for it would

have to be convincing indeed. It is not so.

Id. at 515.

The question of mental state - whether characterized

as motive, purpose, or specific intent — has long been the

province of juries. As this Court explained in Morissette v.

United States, “[w]here intent of the accused is an ingre-

dient of the crime charged, its existence is a question of

fact which must be submitted to the jury.” 342 U.S. 246,

274 (1952). The Court in Morissette relied heavily on this

principle to reverse the lower court’s removal of intent

from those questions to be resolved by the jury. In sup-

port, the Morissette Court cited People v. Flack, 125 N.Y.

324, 334, 26 N.E. 267, 270 (N.Y. 1891): “However clear the

proof may be, or however incontrovertible may seem to

the judge to be the inference of a criminal intention, the

question of intent can never be ruled as a question of law,

but must always be submitted to the jury.”

This Court has continued to reject the presumptive

intent argument, acknowledging the need for a jury to

determine whether the defendant had the requisite men-

tal state to be punished under the statute. In the antitrust

context, the Court in United States v United States Gypsum

Co., 438 U.S. 422, 435 (1978), concluded that “a defen-

dant’s state of mind or intent is an element of a criminal

antitrust offense which must be established by evidence

and inferences drawn therefrom and cannot be taken

from the trier of fact through reliance on a legal presump-

tion of wrongful intent from proof of an effect on prices.”

New Jersey, however, seeks to take from the defen-

dant his protection by that jury, and from the jury the

very essence of its function. As the Court said in Jones,

New Jersey seeks to relegate the jury to a “gatekeeping”

role, permitting it to decide some important facts while

reserving other equally important facts to be decided by a

judge. The role of the jury as the embodiment of commu-

nity norms is severely compromised when a single judge

- rather than a cross-section of the community in which

the defendant lives - is permitted to decide whether a

defendant committed a “hate crime.” The Sixth Amend-

ment’s protection of a jury right cannot be so easily

overridden, particularly when the statute doubles the

sentence and brands a defendant with the stigma of being

a bigot in the process.

As one of the leading treatises on jury selection has

stated: “[T]he Court has established extraordinarily strin-

gent standards aimed at guaranteeing jury represen-

tativeness. This is nowhere clearer than in recent

discrimination cases regarding other non-jury areas in

which the Court has explicitly excepted jury challenges

from its emphasis on discriminatory intent as opposed to

impact.” National Jury Project, Jurywork 5-7 (1990) (Citing

Washington v. Davis, 426 U.S. 229 (1976); Arlington Heights

v. Metropolitan Housing Dept. Corp., 429 U.S. 252 (1977);

Castaneda v. Partida, 430 U.S. 482 (1977); Duren v. Missouri,

439 U.S. 1357 (1979); and Batson v. Kentucky, 476 U.S. 79

(1986)).

Richard G. Singer and Mark D. Knoll have observed

that, prior to the mid-1980s, federal courts universally

held any factor that increased the maximum sentence for

a crime constituted an element of the offense that should

be resolved by a jury. Searching for the “Tail of the Dog”:

Finding “Elements” of Crimes in the Wake of McMillan v.

Pennsylvania, 22 Seattle Univ. L. Rev. 1057 (1999). The

accepted standard was that any issue of value (as in

larceny cases) or quantity (as in Prohibition cases) was a

jury question. See, e.g., Pace v. Aderhold, 2 F. Supp. 261,

263 (N.D. Ga.), aff'd 65 F.2d 790 (5th Cir. 1932); Olivito v.

United States, 67 F.2d 564, 565 (9th Cir. 1933); United States

v. Wilson, 284 F.2d 407, 408 (4th Cir. 1960). In United States

v. Kramer, 289 F.2d 909 (2d Cir. 1961), the Second Circuit

thought the label irrelevant. Instead, Judge Henry

Friendly eloquently declared that, whatever name is

given the factor, when it deeply affects the defendant, it

should be resolved by the jury:

We assume the Sixth Amendment entitles a

defendant to have that fact determined by the

jury rather than the sentencing judge. There is,

of course a certain incongruity in asking a jury

to exercise such expertise in the ways of the

underworld as to determine the “value” of

money orders that can be or have been forged;

but the omniscience of the jury extends to

harder questions than that.

Id. at 921.

The traditional stance of the federal courts - and of

most state courts as well — has been that any factor that

increases the maximum sentence must be submitted to

the jury. Even in the one major exception to this rule,

recidivism, the vast majority of states still requires that

the issue be submitted to a jury, as both the majority and

dissenting opinions in Almendarez-Torres recognized.

Another commentator recently concluded that the

standard proffered by this Court in Jones — that any factor

that increases the maximum sentence (except recidivism)

must be proved to the jury - best comports with prior

precedent and with the requirements of the Sixth Amend-

ment. See Benjamin J. Priester, Further Developments on

Previous Symposia: Sentenced for a Crime The Government

Did Not Prove: Jones v. United States and the Constitutional

Limitations on Factfinding by Sentencing Factors Rather than

Elements of the Offense, 61 Law and Contemp. Prob. 249

(1998). Priester concludes:

The maximum sentences position is a sound

constitutional test. . . . This position generally

provides great deference to the legislature.

.. . The only matter about which the maximum

sentences position is not deferential is the defi-

nition of the “maximum sentence” for each

crime. . . . In addition, the maximum sentences

position adopts the distinction between genera-

tive statutes and sentencing regulations. The

Sentencing Guidelines . . . do not define any

new “crimes” .. . the maximum possible sen-

tence is always restricted to that of the underly-

ing statutory offense of conviction."

Id. at 292.

The “increase of maximum sentence” standard estab-

lishes a bright line test for determining whether an issue

4 A potential increase in the maximum sentence has also

shaped other decisions in this Court. Thus, for example, in

Chandler v. Fretag, 348 U.S. 3, 10 (1954), the Court held that

where a prior conviction increased the maximum penalty, the

Sixth Amendment right to counsel was activated. Accord

Chewning v. Cunningham, 368 U.S. 443 (1962); Specht v. Patterson,

386 U.S. 605 (1967). While these cases may be distinguished

from the case at bar, the underlying premise, that changes in the

maximum sentence and stigma require greater protection than

that afforded a party in a tort action, has remained unchanged.

goes to the jury. Courts would not have to grapple with

whether a factor was “part of the crime” with a more

cumbersome “factors” or “totality” approach. Moreover,

as Priester notes, factors that increased punishment

within the maximum (for example, the Pennsylvania stat-

ute at issue in McMillan, supra), would be unaffected. In

short, this position protects those 25 states (as well as the

federal government) that have adopted some form of

sentencing guidelines.

B. N.J. Stat. Ann. § 2C:44-3e. Imposes A Signifi-

cant Societal Stigma That Should Be Imposed

Only By A jury, As A Jury Best Represents The

Collective Judgment Of The Community.

The idea that mental state is necessary for criminal

conviction “is no provincial or transient notion.” Mor-

isette, 342 U.S. at 250. “What distinguishes a criminal

from a civil sanction and all that distinguishes it . . . is the

judgment of community condemnation which accom-

panies and justifies its imposition.” Henry Hart, The

Aims of the Criminal Law, 23 Law and Contemp. Probs.

401, 404 (1958); see also Gardner, Bailey v. Richardson and

the Constitution of the United States, 33 B.U.L. Rev. 176, 193

(1953) (“The essence of punishment for moral delin-

quency lies in the criminal conviction itself. . . . It is the

expression of the community’s hatred, fear, or contempt

for the convict which alone characterizes physical hard-

ship as punishment.”)

These ideas animated the Court’s conclusion in In re

Winship that the highest standard of proof must be

applied in a criminal case “because of the possibility that

[the defendant] may lose his liberty upon conviction and

because of the certainty that he would be stigmatized by

the conviction.” [emphasis added] 397 U.S. 358, 364

(1970). That statement recognizes the central truth of the

criminal law - every criminal conviction, even those

which do not, or cannot, result in imprisonment, brands

the defendant as an immoral actor. As Justice Brennan

concluded: “A society that values the good name .. . of

every individual should not condemn a man... when

there is reasonable doubt about his guilt.” Id.

That condemnation should come from the jury. As

Justice Thomas recently wrote for the majority in Jones v.

United States, 527 U.S. 373, 383 (1999), the jury

“expressi[es] the conscience of the community. . . . ” 527

U.S. at 383 (quoting Lowenfield v. Phelps, 484 U.S. 231

(1988)). The New lersey statute rejects the history and

understanding behind these conclusions and imposes

upon the defendant charged with a “racially biased

crime” the stigma of bigotry on the slimmest burden of

proof, really a mere civil burden of proof, and without

permitting the community itself to play a significant role

in that determination. Judge Ridgway, moreover,

acknowledged the collateral consequences of the stigma

bestowed upon the defendant when he stated: “ . . . and if

there is difficulty . . . with the type of crime and his safety

in prison, that’s something he'll have to wrestle with.”

(Pet. App. 161a.)

In contemporary American society, few epithets

betray more condemnation than that of “racist”. A judg-

ment that a defendant is a racist, particularly when the

legislature has decided that such a judgment entails a

substantially longer prison sentence, should be rendered

by the broadest cross-section of the community our legal

system recognizes — the jury.

CONCLUSION

For all these reasons, Petitioner respectfully requests

that the decision of the New Jersey Supreme Court be

reversed, the New Jersey hate crime law be declared

unconstitutional, Petitioner’s twelve-year term of

imprisonment on Count 18 be overturned, and this case

be remanded to the trial court for a jury trial on the issue

of whether there is proof beyond a reasonable doubt that

this defendant committed the crime charged “with pur-

pose to intimidate” on account of race.

Respectfully submitted,

Josep D. O’Nent, Esa.

Counsel of Record

CuHarces I. Coant, Esa.

JoserH D. O’Nent, P.A.

30 West Chestnut Avenue

P.O. Box 847

Vineland, New Jersey 08362

(856) 692-2400

RicHarp G. Sincer, Esa.

217 North Fifth Street

Camden, New Jersey 08102

(856) 225-6181

Counsel for Petitioner

January 13, 2000

APPENDIX

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