Amicus Curiae Brief — Harris v. United States

IN THE

Supreme Court of the United States

WILLIAM JOSEPH HARRIS,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF RESPONDENT

KENT S. SCHEIDEGGER

CHARLES L. HOBSON

Counsel of Record

Criminal Justice Legal Fdn.

2131 L Street

Sacramento, CA 95816

Phone: (916) 446-0345

Fax: (916) 446-1194

E-mail: cjlf@cjlf.org

Attorneys for Amicus Curiae

Criminal Justice Legal Foundation

BEST AVAILABLE COPY |:

QUESTION PRESENTED

Given that a finding of “brandishing,” as used in 18 U.S. C.

§ 924(c)(1)(A), results in an increased mandatory minimum

sentence, must the fact of “brandishing” be alleged in the

indictment and proved beyond a reasonable doubt?

(i)

TABLE OF CONTENTS

Stare decisis is an important restraining influence in

eee ee eee bbeecéghececeence

The defendant cannot meet the heavy burden of finding

some special justification for overruling McMillan ... .

i ccc ese eecoesetessaccccccccecs

(iii)

7

Nene eee eee ee ee

TABLE OF AUTHORITIES

Cases

Agostini v. Felton, 521 U. S. 203, 138 L. Ed. 2d 391,

og TR, RE ee ee rere 9, 20

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

140 L. Ed. 2d 350, 118 S. Ct. 1219(1998) .......... 26

Apprendi v. New Jersey, 530 U. S. 466, 147 L. Ed. 2d 435,

EE Passim

Arizona v. Rumsey, 467 U. S. 203, 81 L. Ed. 2d 164,

re GE, A a ae 10

Clemons v. Mississippi, 494 U. S. 738, 108 L. Ed. 2d 725,

Xs Bf RSG er een 16, 17, 26

Dickerson v. United States, 530 U. S. 428, 147 L. Ed. 2d 405,

Sk Ga, SED pn nencucucteencceceds 11, 12,21

Graham v. Collins, 506 U. S. 461, 122 L. Ed. 2d 260,

I eee 21, 28

Harmelin v. Michigan, 501 U. S. 957, 115 L. Ed. 2d 836,

I I Sn i koe 21

Hildwin v. Florida, 490 U. S. 638, 104 L. Ed. 2d 728,

sh 16, 26

Hurtado v. California, 110 U. S. 516, 28 L. Ed. 232,

GE, DE pin ond Ce atGdt wade ate cedve 20

Illinois v. Gates, 462 U. S. 213, 76 L. Ed. 2d 527,

I A I i a a ae i a 22

Jones v. United States, 526 U. S. 227, 143 L. Ed. 2d 311,

es Ga, SED 6 pcnccuctuceseneusats bu 17, 20

Koon v. United States, 518 U. S. 81, 135 L. Ed. 2d 392,

Fee Ge, SEED wa bovedccenseddcaeteceavens 27

\

Lee v. Weisman, 505 U. S. 577, 120 L. Ed. 2d 467,

i oa ee as ie eves 1]

Martin v. Ohio, 480 U. S. 228, 94 L. Ed. 2d 267,

Saat CED vcnedgceeeereavanebetessces 19

McMillan v. Pennsylvania, 477 U. S. 79, 91 L. Ed. 2d 67,

EE bao neh eanteweceuceecess Passim

Michigan v. Chesternut, 486 U.S. 567, 100 L. Ed. 2d 565,

Se EE Agccdc ee bcnneeeeéudhbeckss 15

Miranda v. Arizona, 384 U. S. 436, 16 L. Ed. 2d 694,

a EE ndevés decéaveeeeceseces . Wi, 12

Mullaney v. Wilbur, 421 U. S. 684, 44 L. Ed. 2d 508,

Sy SEE cunauvedeenasedecensedes 16, 22

Patterson v. New York, 432 U. S. 197, 53 L. Ed. 2d 281,

, 4-2 — Serre rr 15, 16, 19, 22

Payne v. Tennessee, 501 U. S. 808, 115 L. Ed. 2d 720,

111 S. Ct. 2597 (1991) ............ 6, 10, 11, 12, 21, 22

Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S.

833, 120 L. Ed. 2d 674, 112 S. Ct. 2791 (1992) ... 14,21

Pollock v. Farmers’ Loan & Trust Co., 157 U. S. 429,

39 L. Ed. 759, 39 L. Ed. 821, 15 S. Ct. 673 (1895) ..... 7

Propeller Genesee Chief v. Fitzhugh,

02 Biman. C53 U. BOGS CURRED «cw cc cccccccccccces:s 14

Rogers v. Tennessee, 532 U.S. 451, 149 L. Ed. 2d 697,

Ss Oh eh, DEED wuctcbtevepeceseceseducesc 8

Sandstrom v. Montana, 442 U.S. 510, 61 L. Ed. 2d 39,

ED. Jcccckbebddsencacoeccosece 28

Seminole Tribe of Fla. v. Florida, 517 U. S. 44,

134 L. Ed. 2d 252, 116 S. Ct. 1114(1996) .......... 13

vi

‘Smith v. Allwright, 321 U. S. 649, 88 L. Ed. 987,

eR Ey ee he a ee a s

Staples v. United States, 511 U. S. 600, 128 L. Ed. 2d 608,

ee ere ee 22

The Steamboat Thomas Jefferson,

10 Wheat. (23 U. S.) 428 (1825) .................. 14

United States v. Harris, 243 F. 3d 806 (CA4 2001)..... 2,3

United States v. Hudson, 11 U. S. 32, 7 Cranch 32,

PEE Citic cciedant desteadwosetns 22

Vasquez v. Hillery, 474 U. S. 254, 88 L. Ed. 2d 598,

Se ee Ee ccidkinediubadeddone cet 8, 13

Vernonia School Dist. 47J v. Acton, 515 U. S. 646,

132 L. Ed. 2d 564, 115 S. Ct. 2386 (1995) .......... 15

Walton v. Arizona, 497 U. S. 639, 111 L. Ed. 2d 511,

Ee ee Sh 4,17, 26

Witte v. United States, 515 U. S. 389, 132 L. Ed. 2d 351,

ns a 17

United States Statutes

RF aT 2,5

i A De’ s icutkedddnbeisnndeddebedsbaweende 2

Treatises

5 W. LaFave, J. Israel, & N. King, Criminal Procedure

SO a im i at 23, 27

Miscellaneous

Caplan, Questioning Miranda, 38 Vand. L. Rev. 1417

ED 6 ka cdi, aie acl ded bd Ga, aaa ee ee 12

vii

B. Cardozo, The Nature of the Judicial Process (1921).... 9

Easterbrook, Stability and Reliability in Judicial Decisions,

73 Cornell L. Rev. 422 (1988) .................. 9,10

The Federalist No. 78 (C. Rossiter ed. 1961)

i P, < va seecngedu@ehéens babdedeeseaeed< 7

Gerhardt, The Role of Precedent in Constitutional

Decisionmaking and Theory, 60 Geo. Wash. L. Rev. 68

SE +o dpdnbdecabesdetuuvivacspesvess 12, 14, 28

Hoffman, Apprendi v. New Jersey: Back to the Future?,

38 Am. Crim. L. Rev. 255 (2001) .............. 19, 24

King & Klein, Apres Apprendi, 12 Fed. Sent. Rep. 331

DD chee ddaeeceveeeanddsedccteceoetccenves 24

King & Klein, Essential Elements,

54 Vand. L. Rev. 1467 (2001) ............ .. 20,25, 27

Monaghan, Stare Decisis and Constitutional Adjudication,

88 Colum L. Rev. 723 (1988) .............5.. 8,9, 10

Note, Constitutional Stare Decisis, 103 Harv. L. Rev. 1344

Di etcecdévpneds coduddudenetuasecesddsvivens 7

Powell, Stare Decisis and Judicial Restraint,

47 Wash. & Lee L. Rev. 281 (1990) ................ 8

Priester, Constitutional Formalism and the Meaning of

Apprendi v. New Jersey, 38 Am. Crim. L. Rev. 281

SE cunddiabokksaudbabenes bivesensnceiiees 27

Stevens, The Life Span of a Judge-Made Rule, ‘

58 N. Y. U. L. Rev. 1 (1983) .............. 8,9, 10, 12

R. Wasserstrom, The Judicial Decision (1961) ......... 11

H. Wechsler, Toward Neutral Principles of

Constitutional Law, in Principles Politics and

Fundamental Law (1961) ......... ee tee id aeen Ss 7

= eR

IN THE

Supreme Court of the United States

WILLIAM JOSEPH HARRIS,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF RESPONDENT

INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF)' is a non-

profit California corporation organized to participate in

litigation relating to the criminal justice system as it affects the

public interest. CJLF seeks to bring the due process protection

of the accused into balance with the rights of the victim and of

society to rapid, efficient, and reliable determination of guilt

and swift execution of punishment.

Mandatory minimum sentencing provisions are an impor-

tant tool to limit, but not eliminate, judicial discretion in

sentencing. Overruling McMillan v. Pennsylvania, 477 U. S.

79 (1986) would void hundreds, if not thousands, of state and

This brief was written entirely by counsel for amicus, as listed on the

cover, and not by counsel for any party. No outside contributions were

made to the preparation or submission of this brief.

Both parties have given written consent to the filing of this brief.

federal statutes and the important policy compromises behind

them. Such a decision would also threaten many capital

sentencing schemes, the Federal Sentencing Guidelines, and its

state counterparts. This potential revolution in sentencing law

is contrary to the interests CJLF was formed to protect.

SUMMARY OF FACTS AND CASE

The defendant, William Joseph Harris, was a pawn shop

owner in North Carolina. United States v. Harris, 243 F. 3d

806, 807 (CA4 2001). On April 29, 1999, an undercover law

enforcement officer and an informant went to Harris’ shop to

purchase marijuana. See ibid. The agent talked with Harris,

and then purchased a small amount of marijuana. The next day

he purchased an additional 114 grams of marijuana. See ibid.

Harris wore a 9mm pistol during both transactions. At one

point, Harris took the weapon “from its holster and explained

that it ‘was an outlawed firearm because it had a high-capacity

magazine,’ and further stated that his homemade bullets could

pierce a police officer’s armored jacket.” Jbid.

Harris was arrested and indicted on two counts of unlawful

distribution of marijuana, see 21 U. S. C. §841(a)(1) &

(b)(1)(D), and two counts of carrying a firearm in relation to the

marijuana offenses, 18 U.S. C. §924(c)(1). See 243 F. 3d, at

807. Harris pled guilty to one marijuana count. The other

marijuana count and one of the weapons counts were dismissed.

Harris was convicted on the other weapons count after a bench

trial. See ibid. At the sentencing hearing, the-court held that

Harris had “brandished” the pistol under 18 U. S. C.

§ 924(c)(1 )(A)(ii) & (c)(4), and therefore sentenced him to the

mandatory minimum term of seven years as prescribed by the

statute. /bid.

Harris appealed, and the Fourth Circuit Court of Appeals

affirmed, holding that “ ‘brandished’ is a sentencing factor, not

an element of the offense.” /bid. The court held that McMillan

v. Pennsylvania, 477 U. S. 79 (1986) was contrary to defen-

dant’s argument and had not been overruled by Apprendi v.

New Jersey, 530 U. S. 466 (2000). See 243 F. 3d, at 808-809.

This Court granted certiorari on December 10, 2001.

SUMMARY OF ARGUMENT

Stare decisis is an important restraining influence in

constitutional law. Reliance on precedent gives judicial

decisions the impartiality, restraint, and predictability that

makes them law rather than the rule of the majority of the

current membership of the court. Following precedents thus

restrains courts, and can provide the necessary neutral princi-

ples upon which to base judicial review. The fact that a

precedent is constitutional does not negate the powerful stare

decisis interests. The reasons for making the Constitution

difficult to amend apply equally well to overrulings, which

cautions this Court to act with considerable restraint in its

constitutional cases.

Constitutional precedent is afforded a strong presumption

of correctness by this Court. Rather than a mechanical formula

or a mere policy expedient, stare decisis is an argument that

must be confronted in every case. There must be some special

compelling reason beyond the precedent’s alleged incorrectness

to justify overruling a constitutional decision.

The defendant cannot meet the heavy burden of finding

some special justification for overruling McMillan v. Pennsyl-

vania, 477 U. S. 79 (1986). Changed conditions have not

undermined its precedential force, nor is McMillan unworkable.

Although it did not precisely define the constitutional limits on

the legislature’s ability to allocate the burden of proof in

criminal cases, this is far from fatal. The absence of bright-line

rules does not diminish a precedent’s value, as this Court’s

Fourth Amendment cases demonstrate. McMillan has not

proven unworkable because Congress and the states have not

abused their authority to define crimes and sentences.

The most substantial objection to McMillan’s continued

validity, its alleged inconsistency with Apprendi v. New Jersey,

530 U. S. 446 (2000), fades upon careful analysis. McMillan is

consistent with a large, coherent body of precedent. Nothing in

the Apprendi majority opinion requires overruling McMillan.

A clear distinction can be made between sentencing factors that

exceed the statutory maximum and mandatory minimum

sentences. Unlike the former, the mandatory minimum

provisions in McMillan and this case do not create a new

offense, and are therefore consistent with the Apprendi rule.

The precedential value of McMillan must take into account

the enormous reliance interest in that decision. While this

Court has stated that procedural cases have diminished reliance

interests, not all procedural cases are alike. Because only the

prosecution must defend its favorable judgments on appeal and

on collateral attacks, the government has much greater reliance

interests in this Court’s procedural cases than criminal defen-

dants.

The reasonable doubt decisions create an even higher

reliance interest for government. They involve the heart of the

legislative function, defining and punishing crimes. Removing

one strand of the intricate web of crime and punishment can

cause the whole structure of policy compromises to unravel.

Mandatory minimum provisions are an integral part of count-

less sentencing schemes and the hundreds, if not thousands, of

mandatory minimum provisions threatened in this case reflect

the compelling reliance interest in McMillan.

A final problem with overruling McMillan is containing the

impact of such a decision in a principled manner. The rationale

for such a decision would be that any factor that causes an

increase in punishment would have to be proven beyond a

reasonable doubt to a jury. This would threaten the rationale of

Walton v. Arizona, 497 U. S. 639 (1990) and a host of other

capital sentencing decisions. It would also seriously threaten

the Federal Sentencing Guidelines and their state counterparts.

Any attempt to contain this damage through stare decisis would |

appear arbitrary if McMillan were overruled. Retaining

McMillan allows the Court to avoid the unpleasant choice

between arbitrariness and a potential revolution in sentencing

law.

ARGUMENT

The right of legislatures to define criminal conduct and limit

judicial discretion in sentencing is threatened in this case. In

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

upheld against constitutional attack a Pennsylvania statute

which provided that “anyone convicted of certain enumerated

felonies is subject to a mandatory minimum sentence if the

sentencing judge finds, by a preponderance of the evidence, that

the person ‘visibly possessed a firearm’ during the commission

of the offense.” /d., at 81. The decision rejected the notion that

every fact linked to an increase or decrease in punishment was

subject to the reasonable doubt standard. See id., at 84.

Because this provision could reasonably be considered a

sentencing factor rather than an element of the crime, the due

process reasonable doubt requirement was not violated. See id.,

at 89-90.

The defendant asserts that under Apprendi v. New Jersey,

530 U. S. 466 (2000), the Constitution requires that the bran-

dishing provision of 18 U. S. C. § 924(c)(1)(A) must be proven

beyond a reasonable doubt. See Brief for Petitioner 27-30. A

necessary part of this argument is that McMillan should be

overruled, as it has been undermined by Apprendi. See id., at

40-45.

The immediate impact of overruling McMillan would be

momentous itself, as the numerous sentencing statutes enacted

in reliance on this decision would be invalidated. In order to

overrule McMillan, Apprendi must be read very broadly. Such

a broad reading would dramatically expand judicial review of

sentencing schemes and the statutory definition of crimes. In

addition to McMillan, several other of this Court’s precedents,

the Federal Sentencing Guidelines, and their state counterparts

are threatened by the defendant’s proposed expansion of

Apprendi. That result would be a “colossal” upheaval for the

criminal justice system. See Apprendi, 530 U. S., at 551

(O’Connor, J., dissenting).

Apprendi need not and should not be read so broadly as to

overrule McMillan. In addition to strong stare decisis reasons

for keeping McMillan, Apprendi can be interpreted in an

appropriately narrow manner that best preserves McMillan and

other precedents. This is the least disruptive and most natural

reading of Apprendi.

i. Stare decisis is an important restraining influence

in constitutional law.

Although occasionally minimized as a dispensable,

judicially-created construct, stare decisis is part of the law’s

lifeblood. Reliance on precedent gives judicial decisions the

impartiality, restraint, and predictability that makes them law

rather than personal whim. While stare decisis may have less

influence in constitutional than in statutory cases, see Payne v.

Tennessee, 501 U. S. 808, 828 (1991), it is still a vital and

important restraint in constitutional cases. An examination of

the stare decisis principle’s rationale and its treatment by this

Court demonstrates its importance to the present case.

A. The Rationale.

There are many reasons for courts to follow precedent.

Perhaps the most important reason is judicial restraint. Relying

on earlier decisions helps insure that decisions are based on the

rule of law rather than the rule of the majority of current

membership of the Court.

“The fundamental conception of a judicial body is that of

one hedged about by precedents which are binding on the

court without regard to the personality of its members.

Break down this belief in judicial continuity, and let it be

felt that on great constitutional questions this court is to

depart from the settled conclusions of its predecessors, and

to determine them all according to the mere opinion of

those who temporarily fill its bench, and our Constitution

will, in my judgment, be bereft of value and become a most

dangerous instrument to the rights and liberties of the

people.” Pollock v. Farmers’ Loan & Trust Co., 157 U.S.

429, 652 (1895) (White, J., dissenting), overruled in South

Carolina v. Baker, 485 U.S. 505, 524 (1988).

While stability, reliance, and other factors are all important

reasons for following precedent, Justice White’s dissent points

at the overall effect of the doctrine. Relying on the decision of

prior courts is an effective restraint upon current and future

courts. A constant problem with judicial review is finding

neutral principles upon which to base constitutional decisions.

If the Court is to be more than a “naked power organ,” then its

decisions must be controlled by principle. See H. Wechsler,

Toward Neutral Principles of Constitutional Law, in Principles

Politics and Fundamental Law 3, 27 (1961). “A principled

decision . . . is one that rests on reasons with respect to all the

issues in the case, reasons that in their generality and their

neutrality transcend any immediate result that is involved.”

Ibid.

Precedent is a worthy neutral principle in most cases.

“Stare decisis helps reduce this ‘counter-majoritarian difficulty’

[of judicial review] by requiring the Court to specially justify

any overruling decisions, thereby allaying suspicion that the

Justices base their decisions upon personal preferences.” Note,

Constitutional Stare Decisis, 103 Harv. L. Rev. 1344, 1350

(1990) (footnotes omitted). This convinced the Founders when

they established the Judicial Branch. “To avoid an arbitrary

discretion in the courts, it is indispensable that they should be

bound down by strict rules and precedents which serve to define

and point out their duty in every particular case that comes

before them... .” The Federalist No. 78, p. 471 (C. Rossiter

ed. 1961) (A. Hamilton). This view also reflects the common

law’s heavy reliance upon stare decisis. See Rogers v. Tennes-

see, 532 U.S. 451, 473, and n. 2 (2001) (Scalia, J., dissenting).

This Court is similarly disposed towards judicial restraint.

“That doctrine [stare decisis] permits society to presume that

bedrock principles are founded in the law rather than in the

proclivities of individuals, and thereby contributes to the

integrity of our constitutional system of government, both in

appearance and in fact.” Vasquez v. Hillery, 474 U. S. 254,

265-266 (1986). Justice Powell expressed similar sentiments.

“But the elimination of constitutional stare decisis would

represent an explicit endorsement of the idea that the Constitu-

tion is nothing more than what five Justices say it is. This

would undermine the rule of law.” Powell, Stare Decisis and

Judiciai Restraint, 47 Wash. & Lee L. Rev. 281, 288 (1990).

Insufficient respect for stare decisis thus threatens the

public legitimacy of the Court and its decisions. Adherence to

precedent helps assure the public that the Court rules impar-

tially. See Stevens, The Life Span of a Judge-Made Rule, 58

N. Y. U. L. Rev. 1, 2 (1983). A perception that places the

“adjudications of this tribunal into the same class as a restricted

railroad ticket, good for this day and this train only,” Smith v.

Allwright, 321 U.S. 649, 669 (1944) (Roberts, J., dissenting),

can only add to the unfortunate public cynicism about the

political nature of constitutional law. See Monaghan, Stare

Decisis and Constitutional Adjudication, 88 Colum L. Rev.

723, 753 (1988).

Judicial restraint is a theme that runs through the traditional

rationales for stare decisis. The common justifications for

adhering to precedent—reliance, equality, and efficiency—are

all closely related to judicial restraint. By assuring the public

that judges will rule impartially, stare decisis allows individuals

to order their affairs around precedents. See Stevens, supra, 58

N. Y. U. L. Rev., at 2. Equality is also served, as restraining

judges through precedent ensures that similar cases will be

treated similarly, rather than according to idiosyncracies of the

individual judges. /d., at 2-3, n. 12 (quoting W. Douglas, Stare

Decisis 8 (1949)). Even efficiency, the idea that precedents

relieve judges of the task of having to reinvent the wheel with

each new decision, see B. Cardozo, the Nature of the Judicial

Process 149-150 (1921), is a form of judicial restraint. Effi-

ciency is advanced through reliance on precedent by allowing

the judge to defer to the accumulated wisdom of his or her

predecessors. See Easterbrook, Stability and Reliability in

Judicial Decisions, 73 Cornell L. Rev. 422, 422-423 (1988).

“Precedent not only economizes on information but also cuts

down on idiosyncratic conclusions by subjecting each judge’s

work to the test of congruence with the conclusions of those

confronting the same problem.” /d., at 423.

This “conservative, stabilizing force,” see Monaghan, 88

Colum. L. Rev., at 751, plays an important role in restraining

constitutional decisions. Although this Court has stated that

stare decisis is less important in constitutional cases because

the Constitution is so difficult to amend, see, e.g., Agostini v.

Felton, 521 U. 8. 203, 235 (1997), stare decisis is much more

than an easily dispensable policy in constitutional cases. If

anything, stability is needed even more in our most important

body of law.

Two reasons why the Constitution is difficult to amend are

because the Framers sought to “ensure that a super-majority of

the people supports any constitutional rule . . . at the time of

inception” and “to ensure stability in the structure of govern-

ment.” Easterbrook, 73 Cornell L. Rev., at 430. Weakening

precedent in constitutional cases frustrates both values. “People

who seek amendment know that the Court may change the rules

at any moment, making their campaign unnecessary or even

counterproductive (depending on the new rules the Court

supplies). .. . The Court’s emphasis on the difficulty of

amending the Constitution therefore may lead paradoxically to

an increased difficulty in securing a change.” /d., at 430-431.

The instability caused by frequent overruling of constitu-

tional precedent is equally apparent. See id., at 431. “Precisely

10

because constitutional rules establishing governmental struc-

tures, because they are the framework for all political interac-

tions, it ought to be harder to revise them than to change

statutory rules. The reasons for making amendment hard apply

as well to overrulings.” /bid. (emphasis in original).

While it is too late to elevate constitutional stare decisis in

relation to its statutory counterpart, constitutional precedents

still deserve considerable respect. If we are to “contain, if not

minimize, the existing cynicism that constitutional law is

nothing more than politics carried on in a different forum,” see

Monaghan, 88 Colum. L. Rev., at 753, then the Court must act

with considerable restraint in its constitutional cases. That

restraint is best served by a strong presumption in favor of

adhering to precedents, even in coristitutional cases. This

principle finds considerable support in this Court’s precedents.

B. Stare Decisis and the Constitution.

While stare decisis may have more strength in statutory

cases, see Payne v. Tennessee, 501 U. S. 808, 828 (1991),

constitutional precedent is still afforded a strong presumption

of correctness by the Court. “Although adherence to precedent

is not rigidly required in constitutional cases, any departure

from the doctrine of stare decisis demands special justifica-

tion.” Arizona v. Rumsey, 467 U.S. 203, 212 (1984). Stare

decisis is the normal state of affairs in this Court's decisions.

Out of the thousands of cases on its docket “over and over again

the Court’s action involves nothing more than the application

of old precedent to a new controversy.” Stevens, 58

N. Y. U. L. Rev., at 4. At most, two to three decisions each

year involve overruling precedents. As the ever-increasing

complexity of the law creates more opportunities for precedents

to conflict, this small proportion of overrulings demonstrates

the continuing vitality of stare decisis. See id., at 4-5. Indeed,

overruling a precedent, even a constitutional one, is an “excep-

tional action.” Rumsey, 467 U. S., at 212.

ll

Rather than a mechanical formula or a mere policy expedi-

ent, stare decisis is an argument that must be confronted in

every case.

“It is possible, without talking about the need for predict-

ability, the fact of reliance, the prevention of legal error,

and the like, to notice that when viewed as reasons, prece-

dents by themselves constitute justifications that require

confrontation before they may be sensibly disregarded or

altered. ... As such, they carry their own prima facie claim

for acceptance.” R. Wasserstrom, The Judicial Decision 83

(1961) (emphasis in original).

The doctrine carries a substantial “persuasive force,” in every

case. See Payne, 501 U. S., at 842 (Souter, J., concurring).

Therefore, where the law is settled “we should stick to it absent

some compelling reason to discard it.” Lee v. Weisman, 505

U. S. 577, 611 (1992) (Souter, J., concurring).

Dickerson v. United States, 530 U. S. 428 (2000) provides

an example of these principles in action. Although Miranda v.

Arizona, 384 U. S. 436 (1966) might have been decided

differently by the members of the Dickerson Court, this

decision was not overturned in spite of a longstanding invitation

to do so from Congress. “Whether or not we would agree with

Miranda’ s reasoning and its resulting rule, were we addressing

the issue in the first instance, the principles of stare decisis

weigh heavily against overruling it now.” Dickerson, supra, at

443. As in Rumsey and other cases, departure from this

constitutional precedent required some “special justification.”

See ibid. (internal quotation marks omitted). Following Justice

Souter’s concurrence in Payne, this is derived from the inherent

persuasive force of precedent. See ibid.

The Dickerson Court did not overrule Miranda in spite of

strong reasons for overturning the decision. Miranda was

decided over spirited dissents and remains controversial to this

day. As the dissents noted, it was “poor constitutional law,”

Miranda, 384 U. S., at 504 (Harlan, J., dissenting), and was

12

devoid of historical support. See id., at 526 (White, J., dissent-

ing). The Miranda test had its own administrative difficulties,

and more importantly, extracted a fearful societal toll in

suppressed voluntary confessions. In addition, it was based on

a faulty premise, that police interrogation practices too often

failed to comply with Fifth Amendment and Due Process

requirements. See Caplan, Questioning Miranda, 38

Vand. L. Rev. 1417, 1443-1444 (1985). Yet Miranda was not

overruled. The warnings had found wide acceptance in our

culture, while subsequent decisions had reduced Miranda’s

impact on law and reaffirmed its core values. See Dickerson,

530 U. S., at 443-444. Additionally, Miranda was as workable

as the alternative, “the totality of the circumstances test” of 18

U.S.C. §3501. See id., at 444.

Society had developed expectations around Miranda, the

decision was not undercut by subsequent developments in the

law, and it worked. These principles form the basis of most of

this Court’s constitutional stare decisis analysis. This Court

generally does not overrule a case unless at least one of three

reasons are present: “changed conditions, the lessons of

experience (including unworkability), and conflicting prece-

dents.” Gerhardt, The Role of Precedent in Constitutional

Decisionmaking and Theory, 60 Geo. Wash. L. Rev. 68, 109

(1991). The strength of stare decisis’ presumption of correct-

ness, see Stevens, 58 N. Y. U. L. Rev., at 8, is influenced by

additional factors. The reliance interest in a precedent plays an

important role in determining how much justification is

necessary to overcome the presumption of correctness. For

example, decisions limiting the prosecution’s case in the

sentencing phase of capital trials had diminished stare decisis

protection as there was no legitimate reliance interest in those

decisions. See Payne, 501 U. S., at 828. When overturning a

decision would “risk . . . undermining public confidence in the

stability of our basic rules of law,” see Stevens, 58

N. Y. U. L. Rev., at 9, then the arguraent for following the

precedent is strengthened. _

13

Although these factors guide the Court’s analysis, there is

no simple formula for determining the strength of a precedent.

“Our history does not impose any rigid formula to constrain

the Court in the disposition of cases. Rather, its lesson is

that every successful proponent of overruling precedent has

borne the heavy burden of persuading the Court that

changes in society or in the law dictate that the values

served by stare decisis yield in favor of a greater objective.”

Vasquez v. Hillery, 474 U. S. 254, 266 (1986).

If McMillan v. Pennsylvania, 477 U. S. 79 (1986) is to be

overruled, it is not enough to simply claim that the case was

wrongly decided. At the very least, McMillan must be proven

“to be unworkable or to conflict with later doctrine or to suffer

from the effects of facts developed since its decision (apart

from those indicating its original errors).” Seminole Tribe of

Fla. v. Florida, 517 U. S. 44, 183 (1996) (Souter, J., dissent-

ing). Even if there is some special justification for departing

from McMillan, sufficiently strong reliance interests or the

public’s confidence in the stability of our system may yet

preserve the case. In light of these significant hurdles, there is

no case for extending Apprendi v. New Jersey, 530 U. S. 466

(2000) to overrule McMillan.

Il. The defendant cannot meet the heavy burden

of finding some special justification for

overruling McMillan.

Extending Apprendi v. New Jersey, 530 U. S. 466 (2000) to

overrule McMillan v. Pennsylvania, 477 U.S. 79 (1986) is not

justified under any principled application of stare decisis.

McMillan is not “outdated, ill-founded, unworkable, or other-

wise legitimately vulnerable to serious reconsideration.” See

Vasquez v. Hillery, 474 U.S. 254, 266 (1986). Other facts only

strengthen McMillan’s value as precedent. Numerous manda-

tory minimum statutes have been enacted in reliance on

McMillan. The invalidation of these statutes and the further

14

disruption of sentencing law that would attend this expansion

of Apprendi threaten to erode public confidence in the law and

this Court’s decisions.

A. No Special Reasons.

None of the three most common reasons for departing from

precedent—changed conditions, unworkability, or conflicting

precedents, see Gerhardt, The Role of Precedent in Constitu-

tional Decisionm: ‘ing and Theory, 60 Geo. Wash. L. Rev. 68,

109 (1991); see also Planned Parenthood of Southeastern Pa.

v. Casey, 505 U. S. 833, 854-855 (1992)—apply to McMillan.

No new circumstances have undermined McMillan. An

illustration of this ground is found in Propeller Genesee Chief

v. Fitzhugh, 12 How. (53 U.S.) 443 (1852). That case involved

a technological innovation. The invention of the steamboat and

the subsequent commercial development of inland rivers had

effectively changed the definition of public navigable river, and

therefore the limits of the admiralty power. See id., at 455-457.

The decision relying on the now-obsolete definition, The

Steamboat Thomas Jefferson, 10 Wheat. (23 U.S.) 428 (1825),

had to be overruled. See Propeller Genesee, supra, at 456. The

only significant change since McMil!un, the many mandatory

minimum sentencing statutes enacted in reliance on that

decision, see part II B, infra, only strengthens its precedential

value.

Nor is McMillan unworkable. While some may disagree

with the desirability of mandatory minimum sentences, their

execution is comparatively straightforward in the context of

modern sentencing law. The only possible difficulty in

administering McMillan is its recognition that the Constitution

still prevented legislatures from evading the reasonable doubt

standard by manipulating the distinction between the underly-

ing offense and the sentence. The McMillan Court did not

“define precisely . . . the extent to which due process forbids the

reallocation or reduction of burden of proof in criminal cases

....” 477 U.S., at 86. An imprecise exception to a general

15

rule does not render the rule unworkable. If simple imprecision

determined a rule’s practicality, then stare decisis would

virtually cease to exist in a Fourth Amendment jurisprudence

driven by a reasonableness standard. Cf. Vernonia School Dist.

47J v. Acton, 515 U. S. 646, 652-653 (1995) (reasonableness

standard); Michigan v. Chesternut, 486 U. S. 567, 572-573

(1988) (eschewing “bright-line” rules in seizure cases). “Our

inability to lay down any ‘bright-line’ test may leave the

constitutionality of statutes more like those in Mullaney [v.

Wilbur, 421 U.S. 684 (1975)] and Specht [v. Patterson, 386

U.S. 605 (1965)] than is the Pennsylvania statute to depend on

differences of degree, but the law is full of situations in which

differences of degree produce different results.” McMillan, 477

U.S., at 91.

The Mc Millan standard has not proven unworkable, because

Congress and the states have not abused their authority to

define crimes and sentences. Legislatures do not strip out the

elements from crimes and convert them into mandatory

minimum factors to be proved by a preponderance of the

evidence at the sentencing phase. While there may be maay

mandatory minimum sentencing statutes, see part II B, iafra,

they have not pushed the edge of what is permissible under

McMillan. McMillan’s generally deferential standard poses no

administrative problems.

The most substantial objection to McMillan’s continued

validity, its alleged inconsistency with Apprendi, fades upon

careful analysis. McMillan is not an aberrant departure from

settled practice. Rather it is part of a large and ongoing body of

law recognizing that legislatures have considerable, but not

unlimited, leeway in defining crimes and punishments. The

McMillan \ine begins with Patterson v. New York, 432 U. S.

197 (1977). Patterson reflected the necessity of giving legisla-

tures considerable leeway in defining crimes. While the

historical treatment of defenses to homicide was relevant to its

analysis of placing the burden of proof for the severe emotional

stress defense, see id., at 202-203, the structure of New York’s

16

homicide law was critical to finding no due process violation.

Because the statute providing the affirmative defense did not

change the prosecution’s burden of proving the elements of

murder beyond a reasonable doubt, there was no due process

violation. See id., at 205-206. The Constitution was satisfied

because “[i]t is plain enough that if the intentional killing is

shown, the State intends to deal with the defendant as a

murderer unless he demonstrates the mitigating circumstances.”

Id., at 206. Finally, the Patterson decision provided further

justification for McMillan when it dismissed the argument that

Mullaney v. Wilbur, 421 U.S. 684 (1975) required the State “to

prove beyond a reasonable doubt any fact affecting ‘the degree

of criminal culpability.” ” See Patterson, supra, at 214, n. 15.

McMillan flowed from this decision. There was no due

process violation because the mandatory minimum sentence

provision did not change the prosecutor’s burden of proving the

underlying crime. Since the sentencing provision was not an

element of the underlying offense, Patterson controlled. See

McMillan, 477 U. S., at 85-86. McMillan was thus not an

aberration, but rather the logical extension of Patterson’s

deference to the States and Congress.

McMillan was not viewed as an aberration after it was

decided. This Court has consistently relied on McMillan. In

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

Court relied on McMillan to hold that the Sixth Amendment did

not require the jury to specify the aggravating factors that

permit the jury imposition of capital punishment in Florida. As

in McMillan, the “aggravating factor here is not an element of

the offense but instead is ‘a sentencing factor that comes into

play only after the defendant has been found guilty.” ” /d., at

640 (quoting McMillan, 477 U. S., at 86). In Clemons v.

Mississippi, 494 U.S. 738, 746 (1990), McMillan and Hildwin

were invoked to support the holding that the Sixth Amendment

did not invalidate a death sentence where an appellate court had

invalidated one of the aggravating factors, but affirmed the

death sentence after finding that the remaining aggravating

17

factors outweighed the mitigating evidence. See id., at 745-

746. Hildwin and Clemons were in turn invoked to uphold,

against a Sixth Amendment challenge, an Arizona law allowing

the court to determine the aggravating fact necessary for

eligibility for the death penalty. See Walton v. Arizona, 497

U.S. 639, 647-648 (1990). McMillan is also important in non-

capital sentencing. Witte v. United States, 515 U.S. 389, 391

(1995) addressed whether the Double Jeopardy Clause pre-

vented a court from “convicting and sentencing a defendant for

a crime when the conduct underlying that offense has been

considered in determining the defendant’s sentence for a

previous conviction.” McMillan was cited as one of several

cases that “reinforce our conclusion that consideration of

information about the defendant’s character and conduct at

sentencing did not result in ‘punishment’ for any offense other

than the one for which the defendant was convicted.” /d., at

401.

Up to Apprendi and its nonconstitutional precursor, Jones

v. United States, 526 U. 8.227 (1999), McMillan was important

and unquestioned. While Apprendi’s historical, formalistic

approach can be read to create analytical difficulties for

McMillan, this does not rise to the level of inconsistency that

justifies the dramatic step of overruling a precedent. Apprendi

specifically declined to overrule Mc Millan, reserving that issue

for another time. See 530 U. S., at 487, n. 13. Instead, the

Apprendi Court chose not to give an expansive reading to

McMillan. “We limit its holding to cases that do not involve

the imposition of a sentence more severe than the statutory

maximum for the offense established by the jury’s verdict—a

limitation identified in the McMillan opinion itself.” bid.

As this suggests, McMillan and Apprendi can coexist in the

same body of precedent. A clear analytical distinction can be

drawn between statutes that limit court’s discretion within the

range of statutorily defined sentences for the crime, as in

McMillan and the present case, and the situation in Apprendi,

18

where the sentencing factor allowed the judge to give a sen-

tence for acrime that is higher than one described in the statute.

Another Apprendi footnote further supports retaining

McMillan. Although the Apprendi Court questioned the

historical basis of McMillan’s use of the term “sentencing

factor,” see id., at 485, 494, n. 19, it recognized that this term

had meaning. “The term appropriately describes a circumstance,

which may be either aggravating or mitigating in character, that

supports a specific sentence within the range authorized by the

jury’s finding that the defendant is guilty of a particular

offense.” /d., at 494, n. 19 (emphasis in original). By increas-

ing the maximum possible sentence, the hate crime “sentencing

factor” in Apprendi created the “functional equivalent” of anew

“greater offense,” see ibid., effectively distinguishing itself

from McMillan’s mandatory minimum.

This distinction is crucial to the Apprendi decision. In

addition to its historic basis, Apprendi also serves “powerful

interests” in the way it protects due process and the right to jury

trial. See id., at 495. “The degree of criminal culpability the

legislature chooses to associate with particular, factually

distinct conduct has significant implications both for a

defendant's very liberty, and for the heightened stigma associ-

ated with an offense the legislature has selected as worthy of

greater punishment.” /d., at 495.

Apprendi is thus best read as a structural decision. When-

ever a legislature enacts a new crime it makes a policy decision.

Apprendi holds that this decision cannot be hidden under the

guise of a “sentencing factor.” As the majority noted:

“structural democratic constraints exist to discourage

legislatures from enacting penal stawutes that expose every

defendant convicted of, for example, weapons possession,

to a maximum sentence exceeding that which is, in the

legislature’s judgment, generally proportional to the crime.

This is as it should be. Our rule ensures that a State is

obliged ‘to make its choices concerning the substantive

19

content of its criminal laws with full awareness of conse-

quences, unable to mask substantive policy choices’ of

exposing all who are convicted to the maximum sentence it

provides.” /d., at 490-491, n. 16 (emphasis in original)

(quoting Patterson, 432 U. S., at 228-229, n. 13 (Powell, J.

dissenting)).

This passage also demonstrates that McMillan’ s continued

existence will not eviscerate the Apprendi rule. Contrary to the

defendant’s arguments, see Brief for Petitioner 37-39, legisla-

tures will not craft baroque evasions of Apprendi through the

use of mandatory minimums, because neither the States nor

Congress play games with the criminal law. While legislatures

have had little time to respond to Apprendi, history demon-

strates that the Apprendi majority was correct to place its faith

in the cellective wisdom of our political representatives.

The response to Patterson is illuminating. The States and

Congress have not comé close to pushing the limits of Patter-

son’s deference to legislative definition of affirmative defenses.

Contrary to fears of the Patterson dissenters that legislatures

would shift elements of crime to affirmative defenses, see

Patterson, 432 U. S., at 223, 224 (Powell, J., dissenting), “the

worst never actually occurred.” See Hoffman, Apprendi v. New

Jersey: Back to the Future?, 38 Am. Crim. L. Rev. 255, 272

(2001). Aside from the insanity defense, very few criminal

statutes have been rewritten to take advantage of Patterson.

See id., at 272-273. Even after Martin v. Ohio, 480 U. S. 228,

233 (1987) in which the state was allowed to shift tire burden of

proof of self-defense to the defendant, legislatures still did not

exploit this newly won freedom and attempt to strip the

traditional elements from crimes by placing them in new

affirmative defenses. See Hoffman, 38 Am. Crim. L. Rev., at

273-274.

Apprendi’s holding is clearly stated in a reference it makes

to McMillan. “When a judge’s finding based on a mere

preponderance of the evidence authorizes an increase in the

maximum punishment, it is appropriately characterized as ‘a

20

”

tail which wags the dog of the substantive offense.’

Apprendi, 530 U. S., at 495 (quoting McMillan, 477 U. S., at

88). The Apprendi majority recognized that not every fact

which influences a sentence has to be determined by a jury.

“We should be clear that nothing in this history suggests that it

is impermissible for judges to exercise discretion—taking into

consideration various factors relating to the offense and the

offender—in imposing sentence within the range prescribed by

statute.” /d., at 481 (emphasis in original). As Apprendi’s

analytical predecessor stated, “It is not, of course, that anyone

today would claim that every fact bearing on sentencing must

be found by a jury; we have resolved that general issue and

have no intention of questioning its resolution.” Jones, 526

U. S., at 248. McMillan and other legislative efforts to guide

judicial sentencing discretion through mandatory minimum

sentences are consistent with these principles.

Any actual tension between McMillan and Apprendi relates

to their respective reliance on history. The Apprendi decision

did place significant emphasis on the fact that, historically, facts

that increased the maximum sentence for the crime were treated

as elements that had to be pled and proved before a jury. See

530 U. S.. at 477-483. The mandatory minimum schemes of

McMillan and the present case have no clear historical prece-

dents. Neither the common law nor 19th century practice

guided the sentencer’s discretion in the manner contemplated

by modern practice. See King & Klein, Essential Elements, 54

Vand. L. Rev. 1467, 1474-1477 (2001). The fact that there is

no historical analog does not itself constitute a due process

violation. See Apprendi, 530 U. S., at 483; Hurtado v. Califor-

nia, 110 U. S. 516, 529 (1884) (holding all procedural change

unconstitutional “would be to deny every quality of the law but

its age, and to render it incapable of progress or improvement”).

Whatever historical tension that may exist between McMillan

and Apprendi is not enough to render them incompatible.

Apprendi did not directly contradict McMillan. Nor has it

fatally undermined McMillan’s premises. Cf. Agostini v.

eee el, ae a

~~ Or ee —_ —e.

21

Felton, 521 U. S. 203, 226 (1997) (“premises on which we

relied . . . no longer valid”). This Court has countenanced far

greater tension between its precedents without resorting to the

drastic step of overruling one of its decisions. See, e.g.,

Graham vy. Collins, 506 U. S. 461, 479 (1993) (Thomas, J..

concurring) (discussing tensions between Eighth Amendment

guided discretion and mitigating circumstance cases); Harmelin

v. Michigan, 501 U. S. 957, 998 (1991) (Kennedy, J., concur-

ring in part and concurring in the judgment) (describing

tensions between Rummel v. Estelle, 445 U. S. 263 (1980) and

Solem v. Helms, 463 U. S. 277 (1983)). While the Apprendi

majority might have reached a different conclusion had it

addressed the McMillan issue in the first instance, that does not

justify overruling McMillan. See Dickerson v. United States.

530 U. S. 428, 443 (2000). McMillan’s “underpinnings [are]

unweakened in any way affecting its central holding.” See

Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S.

833, 860 (1992). It is not unworkable, it is not “at odds with

other precedent for the analysis of personal liberty; and no

changes of fact have rendered [the statutory maximum for the

offense] more or less appropriate as the point at which the

balance of interests tips.” See id., at 860-861. In short, there

are no special reasons for overruling McMillan.

B. Reliance.

The precedential value of McMillan must take into account

the enormous reliance interest in that decision. Cf. Apprendi,

530 U. S., at 487, n. 13 (recognizing reliance interest in McMil-

lan). Although this Court has stated that procedural and

evidentiary cases warrant less stare decisis protection due to the

diminished reliance interests in them, see Payne v. Tennessee,

501 U. S. 808, 828 (1991), all procedural cases are not alike.

It is true that criminal defendants rarely have any legitimate

reliance interest in decisions granting them procedural rights.

For example, no individual can in any reasonable sense rely on

a rule limiting the use of victim impact evidence in the sentenc-

22 -

ing phase of a capital murder trial. Cf. id., at 818-819 (describ-

ing Booth v. Maryland, 482 U. S. 496 (1987) and South

Carolina v. Gathers, 490 U.S. 805 (1989)); id., at 828 (lack of

reliance interest). -

Criminal defendants have far less reliance interests in

precedents than the government due to the asymmetrical

appellate rights of the two. Only the prosecution needs to

defend its judgments on appeal or collateral attack. A defen-

dant who relies on an existing procedure at trial is acquitted,

and the Double Jeopardy Clause protects him from reversal on

appeal. Only in exceedingly rare instances, such as the use of

immunized testimony, could a defendant have a legitimate

reliance interest.

Governments, however, can and do rely on this Court’s

procedural decisions. Police officers will rely on this Court’s

sanction for interrogation or search practices, and prosecutors

will develop cases, present evidence, and file charges based on

procedural decisions. The reasonable doubt decisions create an

even higher reliance interest.

These decisions typically involve basic regulation of human

conduct, whether through the definition of murder and man-

slaughter, see Mullaney v. Wilbur, 421 U. S. 684, 691-692

(1975), defenses to murder, see Patterson v. New York, 432

U. S. 197, 200-201 (1977), or the punishment for crimes, see

McMillan, 477 U. S., at 81; Apprendi, 530 U. S., at 474.

Defining and punishing crime lies at the heart of the legislative

function. As the Patterson Court noted, dealing with crime is

primarily a state prerogative and therefore “we shouid not

lightly construe the Constitution so as to intrude upon the

administration of justice by the individual States.” 432 U. S.,

at 201. In the federal system, Congress has the predominant

role defining and punishing crimes. See United States v.

Hudson, 7 Cranch (11 U.S.) 32, 34 (1812) (no federal common

law criminal jurisdiction); Staples v. United States, 511 U. S.

600, 604-605 (1994). As individual security is the most

important government function, see //linois v. Gates, 462 U. S.

23

213, 237 (1983), the government reliance is particularly

important when defining and punishing crime.

These essential policy decisions are not discrete. The

definition of a particular crime, its lesser and greater offenses,

any defenses, and all relevant punishment statutes form a

closely interrelated web of policy decisions. Remove a strand,

and the entire web of compromises threatens to unravel.

A mandatory minimum sentence provision is not some

easily discarded excess component of a statute. It is “a form of

determinate sentencing designed to control the discretion of

judges and parole boards and advance the goals of deterrence

and incapacitation.” 5 W. LaFave, J. Israel, & N. King,

Criminal Procedure § 26.3(c), p. 735 (2d ed. 1999). If McMil-

lan is overruled, then the relationship that Congress and the

state legislatures set between crime and punishment is broken

for those punishments containing mandatory minimum provi-

sions. The calculus between culpability and desert will have to

be recalibrated. Lacking this tool to limit judicial discretion,

legislatures might revert to strictly determinate sentencing.

They might change the sentences for the crime, or they may

create a new crime with the triggering event for the mandatory

minimum. :

No matter how Congress and the states respond, overruling

McMillan will undo carefully built compromises between

culpability, punishment, and judicial discretion made in reliance

on this Court's precedents. Since McMillan is almost 16 years

old, many legislative decisions have been made in reliance on

this decision. Amicus will not recount in detail the hundreds, if

not thousands of mandatory minimum provisions threatened by

overruling McMillan, other than noting that all 50 states have

mandatory minimum provisions, and that one recent survey

listed over 60 mandatory minimum provisions for federal

crimes. See id., § 26.3(c), at 736 & n. 14.

Apprendi has already caused considerable disruption to the

criminal justice system. “In the year since the Court’s opinion,

24

more than four hundred federal and state court decisions have

dealt with Apprendi issues, and a recent article in the Federal

Sentencing Reporter listed forty-eight federal statutes that either

have been or may soon be challenged under Apprendi.”

Hoffman, Apprendi v. New Jersey: Back to the Future?

38 Am. Crim. L. Rev. 255, 255 (2001) (footnotes omitted);

King & Klein, Apres Apprendi, 12 Fed. Sent. Rep. 331, 336-

338 (2000) (Appendix A) (listing federal statutes threatened by

Apprendi). Such disruption was tolerable because Congress

~ and the states did not enact these provisions in reliance on a

precedent of this Court. Although the vigorous and well-

reasoned Apprendi dissents showed that a strong case could be

made for their constitutionality, these sentencing provisions

never had the explicit sanction of this Court. Indeed, even the

McMillan decision recognized that sentencing factors that

authorized exceeding the statutory maximum sentence raised a

more significant constitutional issue than the mandatory

minimum it upheld. See McMillan, 477 U. S., at 88.

Where countless statutes involving the most important

government action have been enacted in reliance on a Supreme

Court decision directly on point, then the stare decisis protec-

tion for that decision is deservedly substantial. Mandatory

minimums may not be universally popular, but that is not

enough to justify overturning McMillan. The combination of

substantial reliance and lack of any special reason for overturn-

ing McMillan make a compelling case for retaining this

decision. Any remaining doubts about McMillan’s continued

validity are resolved by considering the effect such a decision

would have on other parts of the law.

Ill. Overruling McMillan would be difficult to

contain in a principled manner.

A final problem with overruling McMillan v. Pennsylvania,

477 U. S. 79 (1986) is containing the impact of such a decision

in a principled manner. While overruling McMillan would

25

itself create enormous disruption, see part II B, ante, at 21, the

threat to sentencing law is not confined to invalidating manda-

tory minimum sentencing schemes. The reasoning behind any

decision striking down McMillan would necessarily implicate

many other aspects of sentencing, including some death penalty

systems and the Federal Sentencing Guidelines.

As there is nothing fundamentally inconsistent between

McMillan and a normal reading of the narrow rule of Apprendi

v. New Jersey, 530 U. S. 466 (2000), see ante, at 17-20; King

& Klein, Essential Elements, 54 Vand. L. Rev. 1467, 1478

(2001), the analytical force for overruling McMillan must come

from outside the four corners of the Apprendi majority opinion.

The potential sources for departing from the McMillan rule are

the McMillan dissents and Justice Thomas’ Apprendi concur-

rence. Each of these opinions would, if adopted by a majority

of this Court, considerably expand the scope of the Due Process

Clause with respect to the legislative power to define and

punish crimes.

The narrowest expansion of due process comes from Justice

Stevens’ dissent in McMillan. This opinion would hold that

“if a State provides that a specific component of a prohib-

ited transaction shall 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 /n re Winship [397 U. S. 358 (1970)].”

McMillan, 477 U. S., at 103 (Stevens, J., dissenting).

Justice Marshall’s dissent left open the possibility that mitigat-

ing facts might also be subject to Winship’s reasonable doubt

requirement. See id., at 94 (Marshall, J., dissenting). Justice

Thomas’ concurrence in Apprendi draws from 19th century and

common law treatment of the elements of crime, and reaches a

result similar to Justice Stevens’ dissent in McMillan.

“This authority establishes that a ‘crime’ includes every fact

that is by law a basis for imposing or increasing punishment

(in contrast with a fact that mitigates punishment). ... One

26

need only look to the kind, degree, or range of punishment

to which the prosecution is by law entitled to for a given set

of facts. Each fact necessary for that entitlement is an

element.” Apprendi, 530 U. S., at 501 (Thomas, J., concur-

ring). .

At the very least, Walton v. Arizona, 497 U. S. 639 (1990)

and Almendarez-Torres v. United States, 523 U.S. 224 (1998)

would be endangered under any of these approaches. Walton

held that having a judge rather than a jury find the aggravating

factor necessary for death penalty eligibility did not violate the

Sixth Amendment. See 497 U. S., at 649. The Walton Court

rejected the defendant’s claim that “ ‘the Constitution requires

that ajury . . . make the findings prerequisite to imposition of ”

the death penalty. /d., at 647 (quoting Clemons v. Mississippi,

494 U. S. 738, 745 (1990)). This holding is difficult to square

with any of the opinions advocating the overruling of McMil-

lan. \t is possible that the special requirements imposed on the

states by this Court’s Eighth Amendment cases might justify

distinguishing Walton from a broad reading of Apprendi. See

530 U. S., at 523 (Thomas, J., concurring). Since this would

involve treating capital defendants less deferentially than

noncapital convicts, the distinction would be strained.

At the very least, Walton will be seriously threatened. If it

is overruled, it is difficult to see how the other capital cases

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

(per curiam) and Clemons v. Mississippi, 494 U.S. 738 (1990),

see ante, at 16-17, could withstand this tide.

Noncapital sentencing would also be upset by a decision

overturning McMillan. All of the approaches advocating the

removal of McMillan would likely sweep away Almendarez-

Torres. The fact that prior criminal conduct is a fact tradition-

ally relegated to sentencing, see 523 U. S., at 243-244, does not

change the fact that in A/mendarez-Torres recidivism was used

to increase the maximum sentence, id., at 226, and therefore

would have to be an element of the crime. See Apprendi, 530

U. S., at 521 (Thomas, J., concurring).

27

More importantly, the Federal Sentencing Guidelines and

their state counterparts would be threatened by an opinion

overruling McMillan. The Guidelines are permissible under the

narrow rule of the Apprendi majority because the sentencing

matrix is never invoked to increase a punishment beyond the

statutory maximum. See Priester, Constitutional Formalism

and the Meaning of Apprendi v. New Jersey, 38

Am. Crim. L. Rev. 281, 290 (2001). However, if any fact that

increases a punishment within the prescribed range of punish-

ments must also be treated as an element, then the Guidelines

are in serious jeopardy. See King & Klein, 54 Vand. L. Rev.,

at 1483-1484. The McMillan opponents assert that the manda-

tory minimum enhancement was an element because

“the prosecution is empowered, by invoking the mandatory

minimum, to require the judge to impose a higher punish-

ment than he might wish. The mandatory minimum

‘entitl[es] the government’ . . . to more than it would

otherwise be entitled (5 to 10 years rather than 0 to 10 years

and the risk of a sentence below 5).” Apprendi, 530 U. S.

at 422 (Thomas, J., concurring).

It is difficult to reconcile the Guidelines with this reasoning.

The Guidelines utilize a wide variety of aggravating and

mitigating facts to determine an offense level and criminal

history category. These are then used t» find the presumptive

sentence from the Sentencing Commission’s sentencing table.

See 5 W. LaFave, J. Israel, & N. King, Criminal Procedure

§ 26.3(e), pp. 738-739 (2d ed. 1999). Therefore, under the

Guidelines facts not pled and proven beyond a reasonable doubt

to a jury are used to aggravate the potential punishment.

Although courts may impose a lesser or greater sentence than

what the Guidelines presume, that departure must be independ-

ently justified, and is subject to appellate review, see id.,

§ 26.3(e), at 740-741; Koon v. United States, 518 U.S. 81, 96-

100 (1996). This is not likely to satisfy an opinion overruling

McMillan. The reasonable doubt requirement cannot be

28

avoided through the use of presumptions, even rebuttable ones.

See Sandstrom v. Montana, 442 U.S. 510, 524 (1979).

Amicus does not assert that all of these decisions and

practices would necessarily be struck down if McMillan is

overturned. At the very least, stare decisis could play an

important role limiting the disruption. However, since any

decision overturning McMillan must reject stare decisis in that

case, any subsequent reliance on stare decisis will appear

arbitrary.

If McMillan is overturned, this Court will be faced with the

choice of a monumental change in sentencing law, strained

attempts to distinguish the overturning decision, or the arbitrary

use of stare decisis. This result could also threaten Apprendi in

the long term. Apprendi caused considerable disruption, and

was a 5-4 decision made over vigorous dissents. If given the

expansive construction discussed in this section, rather than the

narrow, literal reading discussed in part | A, then Apprendi will

also be inconsistent with a large body of this Court’s decisions.

The resulting disruption will lead to ongoing litigation in order

to determine how much modern sentencing law must be remade

by this Court’s decision.

One final virtue of stare decisis is that it helps preserve

those decisions that rely on its virtues. If a court respects

precedent, then it increases the chance that future courts will

follow suit. See Gerhardt, The Role of Precedent in Constitu-

tional Decisionmaking and Theory, 60 Geo. Wash. L. Rev. 68,

71 (1991). The converse is equally true. Decisions that do not

respect precedent will receive less deference. “When a single

holding does so much violence to so many of this Court’s

settled precedents in an area of fundamental constitutional law,

it cannot command the force of stare decisis.” Graham v.

Collins, 506 U. S. 461, 497 (1993) (Thomas, J., concurring).

The best way to preserve Apprendi from future attack is to limit

its current scope. This is consistent with the majority opinion,

and will prevent a painful disruption of American sentencing

law.

ee

29

CONCLUSION

The decision of the United States Court of Appeals for the

Fourth Circuit should be affirmed.

February, 2002

Respectfully submitted,

CHARLES L. HOBSON

Attorney for Amicus Curiae

Criminal Justice Legal Foundation