# Amicus Curiae Brief — Harris v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0487%3A11

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2002
- **Citation:** 536 U.S. 545

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0487%3A11. Public record. Not legal advice.