# Petitioners Brief — Apprendi v. New Jersey

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Brief
- **Published:** January 1, 2000
- **Citation:** 530 U.S. 466

## Text

No. 99-478

In The
Supreme Court of the United States

e
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
ee Ee ME nc sa concecessscccocesaces v
Se EN odo dactevicccdeusvivececceesces 1
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

iv

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

y
By A Jury, As A Jury Best Represents The Col-
lective Judgment Of The Community.........

CEE chcvetcccindivecnéontecenceeénseseos

31

31

Vv

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

vi

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

ix

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.

S

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

ia

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.)

10

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.

11

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.

12

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.

—

13

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.

¢

14

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.

S

————

15

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.

16

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

17

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

18

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.”).

19

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

20

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.

21

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.

22

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

23

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).

24

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.

25

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

26

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

27

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.

28

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

29

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.

30

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

31

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.

32

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).

33

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

34

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.

35

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)

36

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.

37

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

38

[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

39

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0338%3A05. Public record. Not legal advice.