Amicus Brief — Apprendi v. New Jersey

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Fe — FEB 14 oop

No. 99-478

— . —

In the Supreme Court of the United States

CHARLES C. APPRENDI, IR., PETITIONER

STATE OF NEW JERSEY

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF NEW JERSEY

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

SETH P. WAXMAN

Solicitor General

Counsel of Record

JAMES K. ROBINSON

Assistant Attorney General

MICHAEL R. DREEBEN

Deputy Solicitor General

EDWARD C. DUMONT

Assistant to the Solicitor

General

NINA GOODMAN

Attorney

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

DSO Pl

QUESTION PRESENTED

Whether a state statute may constitutionally in-

crease the maximum authorized penalty for a crime on

the basis of a finding made by the sentencing court, by

a preponderance of the evidence, that in committing the

crime the defendant acted “with a purpose to intimidate

an individual or group of individuals because of race,

color, gender, handicap, religion, sexual orientation or

ethnicity.”

TABLE OF CONTENTS

Interest of the United States

Statement

Summary of argument

Argument:

A State may constitutionally provide that biased

purpose is a sentencing factor that increases the

otherwise applicable sentencing range for an

offense

A. A State has a wide range of options for structur-

ing the sentencing process

B. The specification of sentencing factors that

C. A rule requiring jury determination, beyond a

reasonable doubt, of all sentencing factors that

raise the maximum authorized term does not

accord with this Court’s cases

D. There is no justification for adopting the con-

stitutional rule proposed in Jones

Conclusion

TABLE OF AUTHORITIES

Cases:

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

8 N

(1998) 5, 9, 12, 20, 30

Barclay v. Florida, 463 U.S. 939 (1983)

Bullington v. Missouri, 451 U.S. 430 (1981). 17, 23-24

Cabana v. Bullock, 474 U.S. 376 (1986)

Carella v. California, 491 U.S. 263 (1989)

Chapman v. United States, 500 U.S. 453 (1991) ..............

Dawson v. Delaware, 503 U.S. 159 (1992)

(IIT)

Cases—Continued:

Delo v. Lashley, 507 U.S. 272 (1993)

Douglas v. Louisiana, 391 U.S. 145 (1968)

Edwards v. United States, 523 U.S. 511 (1998) . 11,

Harmelin v. Michigan, 501 U.S. 957 (1991)

Hildwin v. Florida, 490 U.S. 638 (1989)

Hopkins v. Reeves, 524 U.S. 88 (1998)

Husty v. United States, 282 U.S. 694 (1931)

Jones v. United States, 526 U.S. 227 (1999). passim

—

Jones v. United States, 119 S. Ct. 2090 (19999) 24

Koon v. United States, 518 U.S. 81 (1996) 22

Lanzetta v. New Jersey, 306 U.S. 451 (1939) 29

Lowenfield v. Phelps, 484 U.S. 231 (1988) 23

Martin v. Ohio, 480 U.S. 228 (1987) 10

McMillan v. Pennsylvania, 477 U.S. 79 (1986) 5, 9,

10, 11, 18, 26, 27, 30

Miller v. Florida, 482 U.S. 423 (1987) 10

Mistretta v. United States, 488 U.S. 361 (1989) ............... 10,

11,21

Mitchell v. United States, 119 S. Ct. 1307 (1999) . 15, 29

Monge v. California, 524 U.S. 721 (1998) ........... 9, 13, 15, 18

Mullaney v. Wilbur, 421 U.S. 684 (1975) 25

Nichols v. United States, 511 U.S. 738 (199) 11

Patterson v. New York, 432 U.S. 197 (1977) . 10, 12,

21, 25, 26

Poland v. Arizona, 476 U.S. 147 (1986) 23

Robinson v. California, 370 U.S. 660 (1962) 29

Sandstrom v. Montana, 442 U.S. 510 (1979) 26

Spaziano v. Florida, 468 U.S. 447 (1984) 23

Staples v. United States, 511 U.S. 600 (1994) 9

Stinson v. United States, 508 U.S. 36 (1993) 22

Stroud v. United States, 251 U.S. 15 (1919) 24

Sullivan v. Louisiana, 508 U.S. 275 (1993) 12

Taylor v. Kentucky, 436 U.S. 478 (1978) 14

Townsend v. Burke, 334 U.S. 736 (1948) 28

—

Cases Continued: Page

United States v. Bajakajian, 524 U.S. 321 (1998) ........... 29

United States v. Grayson, 438 U.S. 41 (1978 10

United States v. R. L. C., 503 U.S. 291 (1992) 22

United States v. Tucker, 404 U.S. 443 (1972) 28

United States v. Watts, 519 U.S. 148 (1997) 24, 28,

22, 29

Walton v. Arizona, 497 U.S. 639 (1990) 22-23

Williams v. New York, 337 U.S. 241 (1949) 11,29

Winship, In re, 397 U.S. 358 (1970) 24, 28

Wisconsin v. Mitchell, 508 U.S. 476 (1993) 8,14

Witte v. United States, 515 U.S. 389 (1995) . 11,18,

22, 29

Constitution and statutes:

US. Const.:

Amend. I 29

Amend. V (Due Process Clause) 9, 25, 26, 28

Amend. VI 9, 24

Amend. VIII 23

Federal Death Penalty Act, 18 U.S.C. 3591 et seq. . 24

18 U.S.C. 924(c) (Supp. IV 1998) 21

18 U.S.C. 1201(a) 10

18 U.S.C. 1301 10

18 U.S.C. 2119 13

18 U.S.C. 3553(a) 11

18 U.S.C. 3661 11

21 U.S.C. 841 (1994 & Supp. IV 1998) 15, 16

27 U.S.C. 91 (Supp. III 1929) 17

N.J. Stat. Ann. (West 1995):

§ 2C:39-3(a) 2

§ 2C:39-4(a) 2,8

§ 2C:43-6(a) 2

§ 2C:43-7 3

§ 2C:43-7(aX(3) (Supp. 1999) 3

§ 2C:44-1 10

Statutes—Continued: Page

§ 2C:44-3 3

§ 2C:44-3(e) (Supp. 1999) 3, 4, 5, 6,8

Miscellaneous:

Hoffman & Stover, Reform in the Determination of

Prison Terms: Equity, Determinacy, and the Parole

Release Function, 7 Hofstra L. Rev. 89 (1978) 17

In the Supreme Court of the United States

No. 99-478

CHARLES C. APPRENDI, JR., PETITIONER

STATE OF NEW JERSEY

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF NEW JERSEY

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

INTEREST OF THE UNITED STATES

This case presents the question whether a statutory

sentencing factor may constitutionally increase the

maximum authorized penalty for certain crimes based

on proof to a judge, by the preponderance of the evi-

dence, of the defendant’s purpose to intimidate because

of race. Because various federal criminal laws author-

ize the imposition of enhanced sentences on the basis of

facts found by the court at sentencing, see, e.g., 21

U.S.C. 841(b) (drug type and quantity), the United

States has a strong interest in the outcome of this case.

STATEMENT

1. Early in the morning on December 22, 1994, peti-

tioner fired eight rifle shots into the home of Michael

and Mattie Fowlkes and their three children—the only

black family living in his neighborhood in Vineland,

New Jersey. Pet. App. 2a-3a, 10la-102a, 107a. The

shots shattered the glass in the Fowlkes’s front french

doors and caused other damage. Id. at 107a-109a. It

was the fourth time the Fowlkes home had been hit by

(1)

gunfire in the five months they had lived there. Id. at

2a-3a.

After the December 22 shooting, a neighbor recog-

nized petitioner’s truck driving away. Pet. App. 3a.

When police officers arrested petitioner a short time

later, he admitted that he had fired shots into the

house. Jbid. Petitioner later told the police that al-

though he did not know the residents of the house per-

sonally, he dlid] not want them in the neighborhood”

because they were black, and was “just giving them a

message that they were in his neighborhood.” /d. at 3a,

175a-180a. When officers executed a search warrant at

petitioner’s house they found a number of weapons,

including a .22-caliber rifle with a laser sight and si-

lencer and an anti-personnel bomb. /d. at 3a.

2. A state grand jury charged petitioner with a num-

ber of offenses, ranging from harassment to attempted

murder. Pet. App. 3a; J.A. 2-12. Petitioner agreed to

plead guilty to one count of possession of a destructive

device, in violation of N.J. Stat. Ann. § 2C:39-3(a) (West

1995), and two counts of possession of a firearm for

an unlawful purpose, in violation of N.J. Stat. Ann.

§ 2C:39-4(a) (West 1995). Pet. App. 3a. Under the

latter provision, “[aJny person who has in his possession

any firearm with a purpose to use it unlawfully against

the person or property of another is guilty of a crime of

the second degree.” N.J. Stat. Ann. § 2C:39-4(a) (West

1995). New Jersey’s general sentencing statute

specifies that “[e]xcept as otherwise provided, a person

who has been convicted of a crime may be sentenced to

imprisonment, * lin the case of a crime of the

second degree, for a specific term of years which shall

be fixed by the court and shall be between five years

and 10 years.” Id. § 2C:43-6(a).

Petitioner’s plea agreement recited that the ordinary

maximum sentence for each of the firearms counts was

ten years’ imprisonment, but that the State reserved

the right to seek a longer term on one count on the

authority of N.J. Stat. Ann. § 2C:44-3(e) (West Supp.

1999), which provides that a sentencing court

shall, upon application of the prosecuting attorney,

sentence a person who has been convicted of a crime

* * * to an extended term if it finds, by a pre-

ponderance of the evidence, [that] * * * [t]he

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.

See Pet. App. 4a; Plea Agreement 1. Where Section

2C:44-3 authorizes the imposition of an “extended

term,” Section 2C:43-7 provides that the defendant

shall be imprisoned Aim the case of a crime of the

second degree, for a term which shall be fixed by

the court between 10 and 20 years.” N.J. Stat. Ann.

§ 2C:43-7(a)(3) (West Supp. 1999). Petitioner, in turn,

reserved the right to challenge the constitutionality of

Section 2C:44-3(e). Pet. App. 4a.

Before accepting petitioner’s plea, the state court

assured itself that petitioner personally understood

that even without an “extended” sentence, he faced a

maximum prison term of 20 years, with no possibility of

parole for the first 10 years (if his two firearms sen-

tences were run consecutively); and that if his challenge

to the “extended sentence” provision was rejected, he

faced a maximum total sentence of 30 years’ imprison-

ment, with no parole eligibility during the first 15

years. J.A. 19-24.

At a hearing held before sentencing, petitioner testi-

fied that he had been drinking and had taken medica-

tion on the night of the December shooting, and that he

had fired at the Fowlkes’s house after the glass and the

color of the door “caught [his] eye.” Pet. App. 251a; see

id. at 236a-239a. A defense psychologist also testified

that petitioner had a history of psychological disorders.

Id. at 4a-5a, 213a-219a. At sentencing, the court

rejected these explanations, found that the December

shooting was motivated by racial bias, and held that

petitioner was subject to an “extended” sentence under

Section 2C:44-3(e). Pet. App. 5a, 141a-145a. The court

accordingly sentenced petitioner to 12 years’

imprisonment on the count related to the December

shooting, and to concurrent terms of seven and three

years’ imprisonment on the remaining charges. J.A. 45-

46; Pet. App. 5a, 161a.

3. The Appellate Division of the New Jersey Supe-

rior Court affirmed petitioner’s convictions and sen-

tence, with one judge dissenting. Pet. App. 68a-94a. As

relevant here, the court rejected petitioner’s argument

that the sentence imposed on him under Section 2C:44-

3(e) violated the federal Constitution because it was

based on the trial court’s finding, by a preponderance of

the evidence, of racial motivation, rather than on an

admission obtained as part of his guilty plea or on a

finding made by a jury beyond a reasonable doubt. Pet.

App. 86a-94a. The court held that Section 2C:44-3(e)

treats racial bias as a sentencing factor, not as an ele-

ment of any offense, Pet. App. 87a, and that such treat-

ment of a traditional sentencing factor, such as motive,

is constitutional. Id. at 89a.

4. The Supreme Court of New Jersey affirmed. Pet.

App. la-28a. The court agreed with the Appellate Divi-

sion that a defendant’s racial motivation did not become

“an element of the weapons possession charge” by rea-

son of Section 2C:44-3(e), and that the state legisla-

ture’s reasons for “provid[ing] that the actor’s biased

purpose be treated as a sentencing factor” were “not

constitutionally suspect.” Pet. App. 25a. Applying this

Court’s decisions in Almendarez-Torres v. United

States, 523 U.S. 224 (1998), and McMillan v. Pennsyl-

vania, 477 U.S. 79, 89-90 (1986), the court concluded

that Section 2C:44-3(e)

simply took one factor that has always been con-

sidered by sentencing courts to bear on punishment

and dictated the weight to be given that factor. A

finding of a biased motive or purpose to intimidate,

like the factor of recidivism in the Almendarez-

Torres analysis, is a very traditional sentencing

factor.

Pet. App. 22a.' The court also observed that requiring

juries to determine whether crimes were motivated by

bias would “create[] an added risk of prejudice for

defendants” by “open[ing] trials to evidence of former

acts of bias” and “inject[ing] * issues of racial or

ethnic bias that have a potential to inflame a jury.” Id.

at 24a.

Justices Stein and Handler dissented. Pet. App. 29a-

66a. They reasoned that the finding of racial motivation

required by Section 2C:44-3(e) “necessarily involves a

finding so integral to the charged offense,” and so sig-

nificantly increases the range of authorized sentences,

“that it must be characterized as an element” of the

underlying offense with which the defendant is

1 The court acknowledged that this Court’s later decision in

Jones v. United States, 526 U.S. 227 (1999), had suggested that in-

creasing the maximum statutory sentence on the basis of a sen-

tencing factor could “pose ‘grave and doubtful constitutional ques-

tions.“ Pet. App. 18a-19a (quoting Jones, 526 U.S. at 239). Not-

ing, however, that “the language in Jones was not essential to its

holding” and that this Court “did not expressly overrule the

Almendarez-Torres formulation,” the court determined that

Almendarez-Torres continued to provide the proper framework

for constitutional analysis. Id. at 19a-20a.

charged. Pet. App. 30a. They concluded, accordingly,

that Section 2C:44-3(e) is unconstitutional because it

permits the finding of racial motivation to be made by

the sentencing court by a preponderance of the evi-

dence. Ibid.

SUMMARY OF ARGUMENT

A. The definition of the elements of a criminal offense

is essentially entrusted to the legislature. There is no

constitutional requirement that all matters that miti-

gate or aggravate a particular offense must be made

elements of a crime, to be proved to a jury beyond a

reasonable doubt. Rather, having defined a crime,

legislatures have a variety of options in structuring a

system of sentencing. Legislatures may fix the penalty

themselves; they may define broad ranges for sentenc-

ing courts; or they may constrain the discretion of

sentencing courts within those ranges, either through

binding sentencing guidelines or through other direc-

tives. They may also require judges to sentence based

on the fullest possible information about the offense and

offender, generally finding relevant facts by a pre-

ponderance of the evidence.

B. In light of those principles, the proposed constitu-

tional rule suggested in Jones v. United States, 526 U.S.

227, 243 n.6 (1999)—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”—should

be rejected. Such a rule would not be deeply rooted in

this country’s traditions. Rather, it would impinge on

the recognized legislative prerogative to guide the

administration of sentencing by designating the weight

to be accorded to traditional sentencing factors. A

legislature may prescribe determinate sentences, or set

wide sentencing ranges with the understanding that

judges will exercise appropriate discretion. A sentence

that is constitutionally permissible when selected by a

court on the basis of whatever factors it deems appro-

priate does not become impermissible simply because

the court is permitted to select that sentence only after

making a finding prescribed by the legislature.

C. The rule proposed in Jones also conflicts with the

rationale of three lines of this Court’s precedent. The

Court has upheld the legislature’s designation of sen-

tencing factors that mandate a minimum sentence

within a pre-existing range; it has sustained the federal

sentencing guidelines system, under which binding

sentencing ranges, within statutory maximum and

minimum terms, turn on judicial findings at sentencing,

made under the preponderance-of-the-evidence stan-

dard; and it has endorsed capital punishment schemes

in which aggravating factors, necessary to make a

defendant eligible for a capital sentence, are found by

the judge at sentencing, rather than by the jury at trial.

If judicial findings can justify mandatory minimum

terms, guidelines sentences within a range of punish-

ment, and increases in a defendant’s sentencing expo-

sure from life to death, there is no reason to bar

legislatures from specifying judicial findings that will

operate to increase the maximum authorized term of

imprisonment.

D. The rule proposed in Jones would serve no over-

riding constitutional purpose. The Constitution re-

quires proof beyond a reasonable doubt, and the inter-

position of the jury between the State and the defen-

dant, in order to protect against the conviction of

innocent persons and to prevent arbitrary exercises of

government power. Once a defendant is found guilty of

a properly defined criminal offense, however, the

State’s interest validly shifts to the question of deter-

mining an appropriate punishment. In that inquiry, the

rigorous formality of criminal trials gives way to a

practical and commonsense effort to select a sentence

that fairly punishes the individual offender and protects

the community. Sentencing enhancement factors fit

logically into that framework. A legislature’s provision

for increased maximum terms of punishment based on

judicial findings does not erode or depreciate the jury’s

function. There are significant constitutional limits on

the sentencing process. Neither our constitutional tra-

dition nor fundamental fairness, however, requires that

all the protections of a criminal trial be afforded in

determining the existence of factors that the legislature

deems relevant only to sentencing.

ARGUMENT

A STATE MAY CONSTITUTIONALLY PROVIDE

THAT BIASED PURPOSE IS A SENTENCING FAC-

TOR THAT INCREASES THE OTHERWISE APPLIC-

ABLE SENTENCING RANGE FOR AN OFFENSE

The New Jersey legislature has defined the offense

at issue in this case to be “possession [of] any firearm

with a purpose to use it unlawfully against the person

or property of another.” N.J. Stat. Ann. § 2C:39-4(a)

(West 1995). It has also determined that enhanced

punishment for that offense should be available when

the offense is committed with a racially biased purpose.

Id. § 2C:44-3(e). Like other facts that are germane to

the proper punishment of a defendant found guilty of a

crime, but that are not made elements of the underlying

crime, that enhancing circumstance is to be found by

the court, at sentencing, by a preponderance of the

evidence. The New Jersey Supreme Court has con-

cluded that state law creates this division between guilt

and sentencing determinations, and that conclusion is

binding in this Court. See, e.g., Wisconsin v. Mitchell,

508 U.S. 476, 483 (1993). The question here is whether

the State's decision complies with the federal Consti-

tution.

“(T]he Court has rejected an absolute rule that an

enhancement constitutes an element of the offense any

time that it increases the maximum sentence to which a

defendant is exposed.” Monge v. California, 524 U.S.

721, 729 (1998) (citing Almendarez-Torres v. United

States, 523 U.S. 224 (1998)). But in Jones v. United

States, 526 U.S. 227, 239-252 (1999), the Court sug-

gested that there is a serious unresolved question

whether, “under the Due Process Clause of the Fifth

Amendment and the notice and jury trial guarantees of

the Sixth Amendment, any fact (other than prior con-

viction) that increases the maximum penalty for a crime

must be charged in an indictment, submitted to a jury,

and proven beyond a reasonable doubt.” Id. at 243 n.6.

The Court should resolve that question by holding that

there is no such requirement. Once a defendant has

been found guilty of a crime, after being afforded his

Fifth and Sixth Amendment rights, the Constitution

does not prevent the State from entrusting to the

sentencing process the determination of facts that may

enhance the range of appropriate punishment.

A. A State Has A Wide Raage Of Options For Structuring

The Sentencing Process

The Court’s cases have settled several basic proposi-

tions that properly frame the question presented here.

First, the Court has repeatedly made clear that,

within broad constitutional limits, definition of the

elements of criminal offenses is a matter for state

legislatures or for Congress, not for the federal courts.

Staples v. United States, 511 U.S. 600, 604 (1994)

(“(T]he definition of the elements of a criminal offense is

entrusted to the legislature, particularly in the case of

federal crimes, which are solely creatures of statute.”);

McMillan v. Pennsylvania, 477 U.S. 79, 85 (1986) (“the

state legislature’s definition of the elements of the

offense is usually dispositive”). In defining a criminal

offense, the Constitution does not require the State to

include as “elements” all matters of defense, Martin v.

Ohio, 480 U.S. 228, 233 (1987), mitigation, Patterson v.

New York, 432 U.S. 197, 201 (1977), or aggravation,

McMillan, 477 U.S. at 84-91. Rather, the State has con-

siderable latitude to define such matters as affirmative

defenses or sentencing considerations.

Second, having defined a crime, the legislature may

prescribe the punishment to be imposed on the of-

fender. It may do so by itself prescribing a fixed pen-

alty (other than capital punishment). See Chapman v.

United States, 500 U.S. 453, 467 (1991) (“Congress has

the power to define criminal punishments without giv-

ing the courts any sentencing discretion.”). Or it may

specify that the court must impose a sentence falling

within a defined range, which may be either narrow or

broad. See, e.g., Mistretta v. United States, 488 U.S.

361, 364-365 (1989); United States v. Grayson, 438 U.S.

41, 45-48 (1978); compare, e.g., 18 U.S.C. 1301 (authoriz-

ing imprisonment for not more than two years for

importing lottery tickets) with 18 U.S.C. 1201(a) (mak-

ing kidnapping punishable by “imprisonment for any

term of years or for life”).

Third, once a sentencing range has been set by

statute, “the scope of judicial discretion with respect to

a sentence is subject to [legislative] control.” Mistretta,

488 U.S. at 364. The legislature may vest the sentenc-

ing court with essentially “unfettered discretion.” Ibid.

Or, at the other end of the spectrum, it may cabin the

exercise of that discretion with legislatively adopted

guidelines. See Miller v. Florida, 482 U.S. 423 (1987)

(state indeterminate sentencing scheme subject to pre-

sumptive sentencing ranges under sentencing guide-

lines); compare N.J. Stat. Ann. § 2C:44-1 (West 1995)

(establishing presumptions with respect to imposition

and appropriate length of prison sentences for various

types of crimes). It may specify considerations that

a court must take into account at sentencing. See

18 U.S.C. 3553(a) (setting out seven factors to be con-

sidered in imposing sentence). It may set mandatory

minimum sentences, within the range otherwise pre-

scribed, that a court must impose if it finds the

existence of specified facts or circumstances. See

McMillan, supra (possession of a firearm during com-

mission of the offense required mandatory minimum

sentence). And it may require adherence to administra-

tively promulgated sentencing guidelines that establish

presumptive sentencing ranges. See, e.g., Mistretta,

supra; Edwards v. United States, 523 U.S. 511 (1998);

United States v. Watts, 519 U.S. 148, 155-157 (1997) (per

curiam). All of these approaches regulate sentencing,

within the range otherwise prescribed by statute, on

the basis of findings made by the court about the nature

of the offense and the character of the offender.

Fourth, whether the sentencing court retains plenary

discretion or is limited by mandatory minimums or a

guidelines system, it is generally entitled, and by tradi-

tion expected, to receive and consider an essentially

unlimited range of potentially relevant information, in

order to make an individualized sentencing determina-

tion based on the particular circumstances of the case.

See, e.g., 18 U.S.C. 3661; Witte v. United States, 515

U.S. 389, 397-398 (1995); Nichols v. United States, 511

U.S. 738, 747 (1994); Williams v. New York, 337 U.S.

241, 246 (1949). In conducting that inquiry, “[sJentenc-

ing courts have traditionally heard evidence and found

facts without any prescribed burden of proof at all.”

McMillan, 477 U.S. at 91. This Court has repeatedly

approved the finding of sentencing facts by a pre-

ponderance of the evidence. Id. at 91-93; Watts, 519

U.S. at 155-157.“

B. The Specification Of Sentencing Factors That Increase

The Authorized Sentence Is Consistent With

Constitutional! Principles And Practice

Against this background, the proposed rule articu-

lated in Jones—that “any fact (other than prior con-

viction) that increases the maximum penalty for a

crime” must be treated as an element of the crime (526

U.S. at 243 n.6)—is unwarranted. Such a rule would

prohibit the entire class of legislation that specifies

statutory “sentencing factors” (other than recidivism)

that may enhance the range of punishment beyond an

otherwise applicable range, unless those factors are

designated as offense elements that must be proved to

a jury beyond a reasonable doubt. The defendant does

have the right to have a jury determine guilt of a

criminal offense beyond a reasonable doubt. Sullivan v.

Louisiana, 508 U.S. 275, 277-278 (1993). But such a rule

has never been applied at sentencing. Nor would

application of such a rule find support in “some princi-

ple of justice so rooted in the traditions and conscience

of our people as to be ranked as fundamental.” Patter-

son, 432 U.S. at 202.

1. The proposed rule in Jones could be understood to

require only that a legislature make clear, in defining a

crime, that the “maximum penalty” is the highest that

will be authorized for that crime under any circum-

2 The Court has also noted the existence of a divergence of

opinion among the courts of appeals on whether a higher standard

might be required, in “extreme” circumstances, in making findings

under the federal Sentencing Guidelines. Watts, 519 U.S. at 156 &

n.2; Almendarez-Torres, 523 U.S. at 247-248. That question is pre-

sented by the government’s pending petition for a writ of certio-

rari in United States v. Reed, No. 99-1096 (filed Dec. 29, 1999).

stances. As applied to the carjacking statute at issue in

Jones, for example, the proposed rule would have been

satisfied if Congress had provided: “Carjacking, as

defined in 18 U.S.C. 2119, is punishable by up to life

imprisonment; provided that the court may not impose

a sentence in excess of 15 years’ imprisonment unless it

finds that serious bodily injury resulted from the

carjacking.” If that formulation were sufficient to

satisfy the Court’s proposed constitutional test, the test

would turn on formalities of legislative drafting. See

526 U.S. at 267 (Kennedy, J., dissenting). We therefore

assume, for present purposes, that the Jones Court

intended to suggest a substantially broader constitu-

tional rule. See Monge, 524 U.S. at 741 (Scalia, J., dis-

senting) (advocating similar rule that would apply

“(hjowever [a State] chooses to divide and label its

criminal code”).

That broader rule, however, would impinge on the

prerogative of legislatures to guide the administration

of their criminal justice systems, without affording any

offsetting benefit in the form of protection of constitu-

tional values. Criminal laws and their accompanying

sentencing provisions, taken as a whole, reflect a

variety of interrelated legislative judgments, based on

policy choices relating to both crime and punishment. In

defining criminal conduct, the legislature identifies

those acts that are sufficiently harmful or invasive of

the rights of society as to merit application of the social

stigma of a criminal conviction and the deprivation of

liberty that may be imposed as a punishment. Anyone

who is found, after a trial conducted in accordance with

constitutional protections, to have committed the pro-

scribed acts may be convicted and branded as a crimi-

nal.

Within that class of offenders, the legislature may

also identify certain characteristics of the crime and the

offender that make the defendant more or less culpable

than other individuals who have engaged in the same

criminal conduct. The legislature may legitimately

determine that those factors, though not essential to

criminality, are highly germane to the precise punish-

ment to be meted out in the particular case. Here, for

example, New Jersey has defined the offense in ques-

tion as possession of a firearm for the purpose of using

it unlawfully against the person or property of another.

The State has also made clear that a particular offender

is worthy of more serious punishment when his motive

for committing that offense is racial bias. Bad motive is

a traditional sentencing factor, i.e., a factor that makes

an offender who has committed a particular crime wor-

thy of more serious punishment, and it may be taken

into account in sentencing for a particular offense. Wis-

consin v. Mitchell, 508 U.S. at 485; see Barclay v.

Florida, 463 U.S. 939 (1983) (per curiam).

By explicitly designating motive as a sentencing

factor that enhances the otherwise-applicable punish-

ment, the New Jersey legislature has expressed a

particular judgment about how severely offenders of a

particular class should be punished. There is nothing

suspect in that determination. Once the presumption of

innocence has been overcome by the jury’s finding of

guilt, see Taylor v. Kentucky, 436 U.S. 478, 483-486

(1978), the legislature’s interest shifts from defining

prohibited conduct to ensuring that society obtains a

fair and adequate sentence, calibrated to the nature of

the offender and the details of the particular offense.

The procedures of sentencing, which courts generally

conduct with a view towards assembling the most com-

plete picture possible of the offense and the offender,

are far better suited to the determination of an accurate

punishment than are the formal procedures and eviden-

tiary constraints of a criminal trial.

By the same token, deferring exploration of some of

the details of the offense—why it was committed, and in

what precise manner—until sentencing may serve

compelling interests of fairness and practicality. The

legislature may conclude, for example, that in a jury

trial the government should not be required to prove,

or an accused to defend against, formal allegations of

“bias,” when those allegations are important to punish-

ment but not central to the crime itself. See Pet. App.

24a (requiring proof of racial bias at trial could “create[]

an added risk of prejudice for defendants” and “inject

into the trial of cases issues of racial or ethnic bias that

have a potential to inflame a jury”). The legislature

may also conclude that a jury trial should not be unduly

prolonged or complicated by a requirement that every

detail of the defendant’s offense be determined with

precision and documented by a special verdict.

Legislatures have made judgments of that character

in framing any number of criminal offenses and related

sentencing schemes. The primary federal drug statute,

for example, 21 U.S.C. 841 (1994 & Supp. IV 1998),

defines, in subsection (a), an offense of knowingly or

intentionally manufacturing, distributing, or dispensing

any controlled substance. It then sets out, in subsection

(b), a set of statutory sentencing factors relating

primarily to the type and quantity of drugs involved in

a given offense, as well as to the defendant’s criminal

history and whether the particular crime resulted in

special harm, such as bodily injury or death. The sen-

tence varies considerably based on the circumstances of

the crime. Those circumstances, however, are not en-

compassed in the determination of guilt. See Mitchell

v. United States, 119 S. Ct. 1307, 1314 (1999) (after a

valid plea of guilty under federal drug statutes, “[p]eti-

tioner faced imprisonment from one year upwards to

life, depending on the circumstances of the crime”).

Like the state law at issue here, Section 841 reflects a

legislative judgment that certain elements are neces-

sary to constitute a criminal “offense,” without proof of

which no punishment is warranted, while other factors

are highly relevant to setting an appropriate sentence.

Congress’s very separation of those factors, such as

type and quantity of particular drugs, into separate

sentencing provisions demonstrates a judgment that

they are not essential to the finding of criminality. It

also furthers legitimate aims of practicality and fair-

ness. There is no reason to require protracted proceed-

ings before the jury to make detailed factual determina-

tions that are important to sentencing, but collateral to

guilt. And Ha] defendant might not, for example, wish

to simultaneously profess his innocence of a drug

offense and dispute the amount of drugs allegedly

involved.” Monge, 524 U.S. at 729.“ The legislative

judgments reflected in statutes that differentiate

between elements and sentencing factors are thus

legitimate and important, and should not be lightly set

aside.

2. There is, moreover, no evident reason to hold that

statutes embodying such judgments are constitution-

ally different from statutes that define an offense and

then specify only the maximum penalty that the

8 It has been suggested that courts could deal with any risk of

unfairness by “bifurcating” trials into “guilt” and “appropriate sen-

tence” phases. See Monge, 524 U.S. at 739 n.1 (Scalia, J., dis-

senting). Routine bifurcation of non-capital trials, however, would

be an extraordinarily cumbersome way to conduct the criminal

process. In a complex multi-defendant drug conspiracy case, sen-

tencing proceedings in which a jury would be asked to allocate to

each co-conspirator particular types and quantities of drugs would

not only be burdensome, they would risk jury confusion that would

ill serve society’s interest in determining a fair punishment for

each individual defendant.

legislature believes appropriate for the worst offenses

and offenders, while allowing judges plenary discretion

within that range. When a legislature sets forth a

broad range of possible punishment, it does not nec-

essarily expect that judges will impose sentences at or

near the maximum term of imprisonment in ordinary

cases. Rather, the legislature can reasonably assume

that sentencing judges will take into account typical

factors bearing on the crime and offender, selecting

harsher sentences for those offenders whose conduct

and character are marked by greater social evil, and

milder sentences for others.‘ If a particular judge

openly declared that he or she imposed longer sen-

tences only when offenders committed their crimes

under particularly egregious circumstances, such as

4 Occasionally, that assumption is made explicit in a statute.

See 27 U.S.C. 91 (Supp. III 1929) (setting penalty range for illicit

transactions in liquor, “Provided, That it is the intent of Congress

that the court, in imposing sentence hereunder, should discrimi-

nate between casual or slight violations and habitual sales of in-

toxicating liquor, or attempts to commercialize violations of the

law.“). See Husty v. United States, 282 U.S. 694, 702-708 (1931).

More commonly, Is lenteneing and parole release decisions

have largely been left to the unfettered discretion of the officials

involved. Legislatures have traditionally set high maximum

penalties within which judges must choose specific sentences, but

generally have provided little guidance for the exercise of this

choice. * * * In effect, sentencing policymaking has traditionally

been delegated to a multitude of independent judges to be exer-

cised in the context of individual cases. There has been no attempt

to separate policymaking from individual sentencing deter-

minations. * * * [W)hich factors should be considered, under

what circumstances, and how they are to be weighted are decisions

left solely to the unfettered discretion of the individual decision-

makers Bullington v. Missouri, 451 U.S. 430, 443 n.16 (1981)

(quoting Hoffman & Stover, Reform in the Determination of Pri-

son Terms: Equity, Determinacy, and the Parole Release Func-

tion, 7 Hofstra L. Rev. 89, 96 (1978) (footnotes omitted)).

because of racial hatred, it would not change the

underlying criminal offense by adding an element of

“racial bias.” Rather, it would embody the sort of rea-

soned judgment that legislatures ordinarily expect

sentencing courts to make.

The result should not be different where, to mirror or

standardize existing practice, the legislature imposes

explicit statutory constraints on the discretion other-

wise accorded sentencing courts. See Witte, 515 U.S. at

401-402; McMillan, 477 U.S. at 92 (“We have some

difficulty fathoming why the due process calculus would

change simply because the legislature has seen fit to

provide sentencing courts with additional guidance.”).

The specification of a sentencing enhancement does not

alter the inherent nature of the underlying crime, re-

gardless of whether the factor is identified in a sen-

tencing proceeding by a judge or in a statute by the

legislature. And it is difficult to see why a sentence

that is constitutionally permissible if selected by a

judge exercising unlimited discretion becomes constitu-

tionally impermissible because the judge was permitted

to select it only after making a statutorily specified

threshold finding.

We agree with the observation that this Court’s con-

stitutional analysis should not turn on mere formalities

in the way a legislature frames or organizes its criminal

statutes. See, e.g., Jones, 526 U.S. at 267 (Kennedy, J.

dissenting); Monge, 524 U.S. at 741 (Scalia, J., dis-

senting). Constitutional rights should not be controlled

by labels. For essentially that reason, however, it

should not matter whether a legislature has provided a

high overall statutory maximum, with the expectation

that implicit “sentencing factors” will determine where

in the range the judge will fix the punishment, or has

itself provided graduated penalties for an offense that

escalate incrementally depending on specified findings

made at sentencing. Indeed, the most significant differ-

ence between the two schemes is a feature of the

former that works against the defendant: in a system

of pure discretion, the sentencing judge always has the

power to impose the greatest sentence available, even if

the legislature intended that maximum term to be

reserved for the worst offenders. It is not reasonable

to hold that the Constitution requires legislatures to

expose all offenders to the same maximum penalty, to

be imposed or not at the discretion of the sentencing

judge, rather than specifying for the judge which

classes of offenders who commit a particular crime may

receive the harshest treatment.

C. A Rule Requiring Jury Determination, Beyond A

Reasonable Doubt, Of All Sentencing Factors That

Raise The Maximum Authorized Term Does Not

Accord With This Court's Cases

The rule proposed in Jones would also be at odds

with the logic underlying this Court’s previous holdings

in closely related areas.

1. In McMillan v. Pennsylvania, this Court held

that statutes may prescribe mandatory minimum sen-

ences to be imposed on the basis of findings made by a

judge at sentencing. There is a fundamental parallel

between the judgment exercised by a legislature in

prescribing a minimum sentence that must be imposed

if the judge makes a specified finding, and the judgment

exercised by a legislature in prescribing one or more

upper ranges of sentences that may not be imposed

unless the judge makes such a finding. In each case, the

legislature identifies a particular factor and specifies

sentencing consequences that flow from its existence.

If a legislature may require a mandatory minimum

sentence based on a fact proved at sentencing, it should

also be entitled to preclude sentences in excess of a

particular length absent proof of a fact at sentencing.

To hold otherwise would allow legislatures to constrain

judicial sentencing discretion to the invariable detri-

ment of criminal defendants, while forbidding them

from constraining it in a manner that may benefit some

defendants. That would be an odd manner of protecting

the constitutional rights of the accused.

In Almendarez-Torres, the Court correctly observed

that mandatory minimum sentences are generally more

onerous in their effect on criminal defendants than are

provisions that raise the maximum sentence available

based on a particular finding at sentencing. 523 U.S. at

244-245. The Court relied on that observation and

other factors in holding that increasing the maximum

term based on the sentencing factor of recidivism does

not violate the Constitution. Id. at 239-247.° Adoption

of the Jones rule for all other types of sentencing fac-

tors than recidivism, however, could lead legislatures to

eliminate intermediate sentencing ranges—which bene-

fit some defendants—from their criminal statutes, con-

tenting themselves instead with simple offense defi-

nitions, wide sentencing ranges, mandatory minimums,

In Jones, the Court suggested that the factor of recidivism

could be distinguished from all other sentencing factors because “a

prior conviction must itself have been established through proce-

dures satisfying the fair notice, reasonable doubt, and jury trial

guarantees.” 526 U.S. at 249. That distinction overlooks that the

defendant on trial may dispute that the prior conviction is his.

When identity is controverted, the vital factual question is

whether the defendant is, in fact, a recidivist and thus subject to

enhanced punishment. That finding, like all other determinations

relevant to sentencing, will be made by a judge under the prepon-

derance standard. It is true that disputes over the identity of a

felon will seldom be difficult to resolve, but the proposed constitu-

tional rule in Jones presumably does not turn on the ease or diffi-

culty of proving a particular factor. Many sentencing factors may

be present beyond rational dispute in a given case.

— “rag

and the discretion of sentencing judges. See, e.g., 18

U.S.C. 924(c) (Supp. IV 1998) (replacing former provi-

sions that specified graduated determinate sentences

based on various criteria with new provisions in which

the same criteria define mandatory minimum sen-

tences, with a maximum of life imprisonment for any

version of the offense). Alternatively, a State might

elect to set the greatest maximum penalty for all per-

sons who commit a particular offense, while providing

for affirmative defenses (or mitigating factors) to be

proved by the defendant in order to obtain a lesser

penalty. Cf. Patterson v. New York, supra (State may

provide for an affirmative defense of extreme emotional

disturbance that mitigates murder to manslaughter to

be proved by the preponderance of the evidence). It is

doubtful that such regimes would benefit criminal

defendants as a class, or advance the goals of rational

and reasonably uniform sentencing.

2. As noted above, the Court has upheld the use and

operation of the federal Sentencing Guidelines. Mis-

tretta v. United States, 488 U.S. 361 (1989). Cases

under the Guidelines make clear that so long as the

minimum and maximum sentences prescribed by stat-

ute are observed, it is constitutionally permissible for

the Guidelines to guide and channel the discretion exer-

cised by sentencing courts—and to do so on the basis of

factual findings made by the sentencing judge by a

6 Under Patterson, New Jersey could have provided for a 20-

year sentence for all firearms offenses, subject to an affirmative

defense that lowered the maximum term to ten years where the

use of the firearm was not motived by racial bias, did not result in

bodily injury, was not stolen, did not function automatically, and so

forth. A State that adopted such a regime of affirmative defenses

could put the burden of persuasion on the defendant, in contrast to

New Jersey’s current requirement that the State bear the burden

of proof.

preponderance of the evidence. See, e.g., Edwards, 523

U.S. at 513-514; Watts, 519 U.S. at 155-156; Witte, 515

U.S. at 400-404; see also note 2, supra. The sentencing

ranges set by the Guidelines operate as legal con-

straints on the sentencing court. See Stinson v. United

States, 508 U.S. 36, 42 (1993). The judge is ordinarily

limited to the maximum term set by the applicable

Guidelines range, unless the range exceeds the statu-

tory maximum term or there are grounds to depart

upward. See Koon v. United States, 518 U.S. 81, 92-93

(1996); United States v. R. L. C., 503 U.S. 291, 306-307

(1992).

The Constitution thus permits legislatures to set

determinate sentences; to set only broad sentencing

ranges, leaving all subsidiary determinations to the

unguided discretion of the sentencing judge; or to set

overall maximum and minimum sentences, and then

require judges to abide by intermediate sentencing

ranges established by a sentencing commission (subject

to departures in extraordinary cases). The Jones rule,

however, would essentially forbid the legislature from

mandating sentencing ranges within an overall maxi-

mum term, with no departures from those ranges

allowed, unless the court treated each fact that made a

defendant eligible for a higher range as if it were an

element of an aggravated offense. The constitutional

principle that would require those distinctions is elusive

at best.

3. Finally, as Jones acknowledges, 526 U.S. at 251,

the proposed rule is in at least considerable tension

with the Court’s consistent holdings in capital cases

that the aggravating factors necessary to impose a

death sentence need not be made “elements” of the

capital offenses in question, and may be found by sen-

tencing judges (or even by an appellate court). See,

e. g., Walton v. Arizona, 497 U.S. 639, 645, 647-649

(1990); Hildwin v. Florida, 490 U.S. 638 (1989) (per

curiam); Cabana v. Bullock, 474 U.S. 376, 385-386 & n.3

(1986) (“while the Eighth Amendment prohibits the

execution of * * * defendants [in the absence of

predicate findings], it does not supply a new element of

the crime of capital murder that must be found by the

jury”; rather, it places “a substantive limitation on

sentencing” that “need not be enforced by the jury.”);

Spaziano v. Florida, 468 U.S. 447, 452 (1984).”

Such findings are not simply factors that guide the

“choice between a greater and a lesser penalty.” Jones,

526 U.S. at 251. They are mandatory matters necessary

to increase the sentencing range from life to death.“

The Court reaffirmed that principle in Hopkins v. Reeves, 524

U.S. 88, 100 (1998), with respect to the intent findings required for

a capital sentence. The Court explained that the Eighth Amend-

ment rule requiring a “culpable mental state” for a capital sentence

“does not concern the guilt or innocence of the defendant—it

establishes no new elements of the crime of murder that must be

found by the jury . . . and does not affect the state’s definition of

any substantive offense.” Id. at 100 (quoting Cabana, 474 U.S. at

385). A State may therefore comply with the mental-state require-

ment “at sentencing or even on appeal.” 524 U.S. at 100.

8 See Lowenfield v. Phelps, 484 U.S. 231, 244-246 (1988). Jones

based its analysis (526 U.S. at 251) on language in Walton, 497 U.S.

at 648, which stated: “Aggravating circumstances are not separate

penalties or offenses, but are ‘standards to guide the making of

[the] choice’ between the alternative verdicts of death and life

imprisonment.” Walton, however, does not support the analysis in

Jones. Walton quoted Poland v. Arizona, 476 U.S. 147, 156 (1986),

which in turn quoted the phrase “standards to guide the making of

[the] choice” from Bullington v. Missouri, 451 U.S. 430, 438

(1981). Both Poland and Bullington make clear that the finding of

at least one aggravating circumstances is a prerequisite to a capital

sentence. See Poland, 476 U.S. at 156 (in Arizona “the sentencer

must find some aggravating circumstances before the death

penalty may be imposed’); Bullington, 451 U.S. at 439, 441 n.15

(noting that the jury was required, after finding guilt, to find

See Jones v. United States, 119 S. Ct. 2090, 2097-2098

(1999) (describing the intent and aggravating factors in

the Federal Death Penalty Act, 18 U.S.C. 3591 et seg.,

that made the defendant “death-eligible,” and distin-

guishing those prerequisites from the process of

“weighing” aggravating and mitigating factors in the

“selection decision” between life and death). Judges,

rather than juries, may therefore make findings that

are legislatively and constitutionally essential before

a defendant may be sentenced to death. It would be

a strange constitutional regime that permitted that

process, yet precluded a legislature from specifying a

statutory enhancement factor that raised the sen-

tencing range available to a judge in imposing a term of

imprisonment.

D. There Is No Justification For Adopting The Constitu-

tional Rule Proposed In Jones

All of these considerations might be overborne if

there were a compelling reason for adopting the rule

suggested in Jones. No showing has been made, how-

ever, of any danger to liberty that would justify it.

1. The constitutional concerns voiced in Jones relate

to the due process requirement of proof beyond a

reasonable doubt, see In re Winship, 397 U.S. 358, 364

(1970), and the Sixth Amendment right to trial by jury.

See 526 U.S. at 242. With respect to due process, the

Court noted a concern that unlimited legislative control

over sentencing factors that raise the maximum term

could permit a State “to manipulate its way out of

Winship,” id. at 243, by permitting guilt to be found on

“additional facts in order to justify the particular sentence,” and

i Stroud v. United States, 251 U.S. 15 (1919), on the

ground that “Stroud’s jury was not required to find any facts in

addition to those necessary for a conviction for first-degree murder

in order to sentence him to death.”).

less than proof beyond a reasonable doubt. See id. at

240-241 (characterizing Mullaney v. Wilbur, 421 U.S.

684 (1975), as resting in part on this view). The Jones

Court also observed that Patterson v. New York, 432

U.S. 197, 210 (1977), while rejecting a Winship chal-

lenge, had nonetheless recognized that there is a con-

stitutional “limit on state authority to reallocate

traditional burdens of proof.” 526 U.S. at 243. Neither

the cited cases nor their underlying principles, how-

ever, support a constitutional rule as broadly defined as

the one advanced in Jones.

In Mullaney v. Wilbur, the Court held only that a

State that defines a particular fact as an element of an

offense may not then dispense with proving that ele-

ment to the jury by relying wholly on a presumption

arising from proof of other facts. In Patterson, where

the Court upheld the treatment of extreme emotional

disturbance as an “affirmative defense” that reduced

murder to manslaughter, the Court took pains to

indicate that the reach of Mullaney went no farther

than its ban on conclusive presumptions. Patterson

declined to “disturb the balance struck in previous

cases holding that the Due Process Clause requires the

prosecution to prove beyond a reasonable doubt all of

the elements included in the definition of the offense of

which the defendant is charged.” 432 U.S. at 210. The

Court then observed that “there are obviously consti-

tutional limits beyond which the States may not go.”

Ibid. But the limits that the Court had in mind

involved abrogation of the presumption of innocence.’

® Immediately after its reference to “constitutional limits,”

Patterson stated: IIlt is not within the province of a legislature to

declare an individual guilty or presumptively guilty of a crime.

The legislature cannot validly command that the finding of an

indictment, or mere proof of the identity of the accused, should

See McMillan, 477 U.S. at 86-87 (Patterson, in respond-

ing to the concern that its holding would enable a State

to have “unbridled power to redefine crimes to the

detriment of criminal defendants,” reaffirmed “the

unremarkable proposition that the Due Process Clause

precludes States from discarding the presumption of

innocence.”).

The presumption of innocence has not been discarded

in this case. “Once the defendant has been convicted

fairly in the guilt phase of the trial, the presumption

of innocence disappears.” Delo v. Lashley, 507 U.S.

272, 278 (1993) (per curiam). Petitioner was found

guilty based on his plea acknowledging commission of

the elements of the offense; had he not so pleaded, he

would have been exposed to sentencing (including any

enhancement for biased motive) only if he were found

guilty beyond a reasonable doubt of the charged

offense. “Once the reasonable doubt standard has been

applied to obtain a valid conviction, the criminal defen-

dant has been constitutionally deprived of his liberty to

the extent that the State may confine him.” McMillan,

477 US. at 92 n.8.

2. With respect to the defendant’s right to a jury

trial, Jones expressed concern about the “practical im-

plications” of allowing legislatures to enact statutory

enhancement factors. 526 U.S. at 243. Noting that

enhancement factors may significantly increase the

create a presumption of the existence of all the facts essential to

guilt.” 432 U.S. at 210 (citations omitted). The Court has adhered

to the principle that a State may not erect a conclusive presump-

tion that a particular element of a crime may be presumed from

proof of another element. Sandstrom v. Montana, 442 U.S. 510

(1979); Carella v. California, 491 U.S. 263, 265 (1989) (per curiam).

That principle, however, is not implicated by a State’s explicit de-

termination that a particular fact, though germane to sentencing,

is not relevant to guilt at all.

range of available punishment, the Court raised the

question “whether recognizing an unlimited legislative

power to authorize determinations setting ultimate

sentencing limits without a jury would invite erosion of

the jury’s function to a point against which a line must

necessarily be drawn.” Id. at 244. Reliance on statu-

tory sentencing factors to enhance a range does make a

particular sentence turn on nonjury determinations.

But that does not distinguish such a case from any

other in which a range of sentences is authorized.

Neither approach impairs the defendant’s right to a

jury trial. A defendant who pleads not guilty, and who

exercises his right to a jury trial, may not be sentenced

unless he is found guilty by a jury. While additional

facts proved at sentencing may enhance his punish-

ment, “there is no Sixth Amendment right to jury sen-

tencing, even where the sentence turns on specific

findings of fact.” McMillan, 477 U.S. at 93.

The situation of a defendant exposed to an enhanced

maximum sentence based on a statutory sentencing

factor is functionally identical to the situation of a

defendant exposed to a particular sentence based on

factors that a court must find, under binding sentencing

guidelines, within the same overall statutory range.

The situation also resembles a scheme involving the

same overall range and traditional discretionary sen-

tencing carried out by the judge alone. The jury’s

finding of guilt in all of these regimes opens] the door”

to a long prison sentence, up to and including life im-

prisonment, based on facts found at sentencing; but the

jury finding that authorizes such sentencing cannot be

described in any of them as “low-level gatekeeping.”

Jones, 526 U.S. at 244.

Nothing in this analysis detracts from the historical

and contemporary importance of the right to trial by

jury. That history, however, does not directly illumi-

nate the present issue, as the Jones Court acknowl-

edged. 526 U.S. at 244. Rather, the significant histori-

cal lesson is found in the long-accepted and fundamental

divide in our criminal justice system between the

adjudication of guilt and the fixing of an appropriate

punishment. The rigorous safeguards that the Consti-

tution provides for the determination of guilt serve to

protect the innocent, even at the expense of sometimes

freeing the guilty, and to prevent arbitrary exercises of

power by government. See Winship, 397 U.S. at 372

(Harlan, J., concurring) (discussing the reasonable-

doubt principle); Douglas v. Louisiana, 391 U.S. 145,

151-154 (1968) (discussing purpose of the jury guaran-

tee). Those same protections do not, however, apply at

sentencing.

That is not because sentencing is not a serious mat-

ter. Rather, it is because sentencing implicates soci-

ety’s compelling interest in fashioning an appropriate

punishment for the guilty that is consistent with the

protection of the community. The government has com-

plied with the core procedures required to attach social

stigma to the defendant’s acts and to deprive him of

liberty; the question then becomes one of the degree of

that deprivation. In making that determination, there

is no longer the risk of punishing an innocent person,

and the paramount consideration becomes society’s

interest in making the sentencing decision based on full

and complete information, as assessed by a judge with

whatever guidance the legislature chooses to provide.

The sentencing process does not take place in a con-

stitutional vacuum. The Due Process Clause protects a

defendant against being sentenced based on “misinfor-

mation of a constitutional magnitude.” United States v.

Tucker, 404 U.S. 443, 447 (1972); Townsend v. Burke,

334 U.S. 736, 740-743 (1948). The Fifth Amendment

protects against drawing an adverse inference about

the facts of an offense based on a defendant’s silence at

sentencing. Mitchell v. United States, 119 S. Ct. 1307,

1316 (1990). The First Amendment protects against

imposing sentence based on a defendant’s “abstract

beliefs.” Dawson v. Delaware, 503 U.S. 159, 167 (1992).

And the Eighth Amendment provides a proportionality

check that serves to prevent the imposition of a sen-

tence grossly disproportionate to the offender’s crime.

Harmelin v. Michigan, 501 U.S. 957 (1991) (plurality

opinion); cf. United States v. Bajakajian, 524 U.S. 321

(1998) (excessive fines).

In light of that background, a legislature’s decision to

specify factors that will raise the authorized level of

punishment in some cases, as compared to others, does

not risk eroding constitutional rights to a point “against

which a line must necessarily be drawn.” 526 U.S. at

244. Rather, it provides a mechanism for society to

obtain a fair and proper punishment for an individual

found guilty of crime. As the Court has reiterated in

the context of Double Jeopardy challenges to applica-

tions of the federal Sentencing Guidelines, a defendant

is properly punished only for an offense of which he has

been convicted—no matter what other conduct or

character factors may be taken into account in setting a

sentence within the range authorized for that offense.

See Watts, supra; Witte, supra; see also, e.g., Williams

v. New York, 337 U.S. 241 (1949). There are limits to

the State’s authority to define conduct as criminal in

the first place. See Robinson v. California, 370 U.S.

660 (1962). Those limits include the requirement that

citizens must have fair notice that specified conduct is

against the law. See, e.g., Lanzetta v. New Jersey, 306

U.S. 451, 453 (1939). And, although a State need not

conform its definition of crimes to the common law,

there may also be limits on a State’s power radically

to redefine certain crimes. See Jones, 526 U.S. at 240-

241 (suggesting that State may “lack[] the discretion to

omit ‘traditional’ elements from the definition of

crimes”); cf. Almendarez-Torres v. United States, 523

U.S. 224, 246 (1998) (noting that provisions at issue did

not “change a pre-existing definition of a well-estab-

lished crime”); McMillan, 477 U.S. at 90 (similar).

If, however, a defendant has been properly charged

with a valid offense defined by the legislature, and has

pleaded guilty to that offense or been found guilty by a

jury, the Constitution permits the sentencing court to

take account of any relevant information it has available

concerning the defendant’s conduct or character, and to

impose any sentence authorized by law. It also permits

a legislature to guide and limit the judge’s sentencing

discretion by specifying a fixed sentence, or through

mandatory guidelines. It should make no constitutional

difference if a statute instead specifies facts that, if

found by the sentencing court, will increase the

maximum authorized sentence.

CONCLUSION

The judgment of the Supreme Court of New Jersey

should be affirmed.

Respectfully submitted.