Amicus Curiae Brief — Harris v. United States

FER 22 201

No. 00-10666

In The

Supreme Court of the United States

WILLIAM JOSEPH HARRIS,

Petitioner,

V.

UNITED STATES,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

BRIEF OF 25 STATES AND TERRITORIES AS

AMICUS CURIAE IN SUPPORT OF RESPONDENT

DAVID SAMSON

Attorney General of New Jersey

LISA SARNOFF GOCHMAN

Deputy Attorney General

Counsel of Record

DIVISION OF CRIMINAL JUSTICE

R.J. HUGHES JUSTICE COMPLEX

P.O. BOX 086

TRENTON, NEW JERSEY 08625

(609) 292-9086

BEST AVAILABLE COPYE

BRUCE M. BOTELHO

Attorney General

State of Alaska

JANET NAPOLITANO

Attorney General

State of Arizona

KEN SALAZAR

Attorney General

State of Colorado

M. JANE BRADY

Attorney General

State of Delaware

ROBERT A. BUTTERWORTH

Attorney General

State of Florida

JAMES E. RYAN

Attorney General

State of Illinois

CARLA J. STOVALL

Attorney General

State of Kansas

RICHARD P. IEYOUB

Attorney General

State of Louisiana

J. JOSEPH CURRAN, JR.

Attorney General

State of Maryland

THOMAS F. REILLY

Attorney General

Commonwealth of Massachusetts

MICHAEL C. MOORE

Attorney General

State of Mississippi

JEREMIAH W. (JAY) NIXON

Attorney General

State of Missouri

MIKE McGRATH

Attorney General

State of Montana

DON STENBERG

Attorney General

State of Nebraska

FRANKIE SUE DEL PAPA

Attorney General

State of Nevada

BETTY D. MONTGOMERY

Attorney General

State of Ohio

D. MICHAEL FISHER

Attorney General

Commonwealth of Pennsylvania

MARK BARNETT

Attorney General

State of South Dakota

PAUL G. SUMMERS

Attorney General & Reporter

State of Tennessee

JOHN CORNYN

Attorney General

State of Texas

MARK L. SHURTLEFF

Attorney General

State of Utah

WILLIAM SORRELL

Attorney General

State of Vermont

ELLIOT M. DAVIS

Solicitor General

U.S. Virgin Islands

DARRELL V. McGRAW, JR.

Attorney General

State of West Virginia

TABLE OF CONTENTS

STATEMENT OF AMICTINTEREST............ l

SUMMARY OF ARGUMENT ................. 2

ARGUMENT

THE CONSTITUTIONAL RULE

OF McMILLAN REMAINS GOOD

LAW, AND PRINCIPLES OF

STARE DECISIS PRECLUDE THIS

COURT FROM OVERRULINGITS

Ee 3

A. The New “Bright Line” Rule

Announced by the Apprendi Court

Casts No Doubt on the Continued

Validity of McMillan ..... eeeees 5

B. The McMillan Rule Remains

Entirely Workable ........... ll

McMillan Rule Demands its

D. Sound Reasons of Policy and

Historical Demarcation Between

E. Any Modification i in the McMillan

Application Only ............ 22

‘i

TABLE OF AUTHORITIES

CASES: PAGE

Almendarez-Torres v. United States, $23 U.S. 224

SE ie ed ++ ebwen king meas 8,11

20

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

Arizona v. Rumsey, 467 U.S. 203 I a ata alt as 4

Browning v. United States, 241 F.3d 1262 (10th Cir.

GD Sete nkcewhchslsle dure ud 24

Dickerson v. United States, 530 U.S. 428 (2000) ..... 4

Edwards v. United States, 523 U.S. 511 (1998) ..... 22

Ex parte Guess, 507 So.2d 551 (Ala. 1987) ........ 13

Forbes v. United States, 262 F.3d 143 (2d Cir. 2001) . 24

Gardner v. State, 344 Md. 642, 689 A.2d 610 (1997) . 14

Hilton v. South Carolina Public Railways Commission,

a ee impel 4

In re Clemmons, 259 F.3d 489 (6th Cir. 2001) ..... 24

In re Joshua, 224 F.3d 1281 (11th Cir. 2000) ...... 24

In re Tatum, 233 F.3d 857 (Sth Cir. 2000) ........ 24

In re Turner, 267 F.3d 225 (3d Cir. 2001) ........ 24

In re Winship, 397 U.S. 358 (1970) ............. 11

Jones v. Smith, 231 F.3d 1227 (9th Cir. 2000) ..... 24

Jones v. United States, 526 U.S. 227 (1999) ..... 5,16

ee eS <2... 8

McGregor v. State, 789 So.2d 976 (Fla. 2001) .. . . 14,15

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

Monge v. California, 524 U.S. 721 (1998) .......- 20

Mullaney v. Wilbur, 421 U.S. 684 (1975) ....-...-. 8

Patterson v. New York, 432 U.S. 197 (1977) ..... 25

Payne v. Tennessee, 501 U.S. 808 (1991) ......-.-- 4

People v. Fender, 757 N.E.2d 645 (Ill. App. 2001) 14,15

People v. Newbolds, 757 N.E.2d 664 (Ill. App.),

pei Gated, __ SE MED os 0s 0's 15

People v. Phillips, 759 N.E.2d 946 (Ill. App. 2001) 14,15

Planned Parenthood of Southeastern Pennsylvania Vv.

Casey, 505 U.S. 833 (1992) ...-------5>: 6,11

ws -y United States, 229 F.3d 704 (8th Cir.

Shannon v. United States, 512 U.S. 573 (1994) ... 19,21

Spencer v. Texas, 385 U.S. 554 (1967) .....------ 17

State Oil Company v. Khan, 522 U.S. 3 (1997) er 4

iv

State v. Conley, 270 Kan. 18, 11 P.3d 1147 (2000),

cert. denied, 121 S.Ct. 1383 (2001)

State v. Cox, 37 P.3d 437 (Ct.App. Ariz. 2002) .. . 13,15

State v. Johnson, 166 N.J. 523, 766 A.2d 1126

(1978)

State v. Petrucci, 343 N.J. Super. 536, 779 A.2d 429

(App. Div. 2001), petition for certif. pending,

22 SS 6LLUllCU SS 16

State v. Stanton, 339 N.J. Super. 1, 770 A.2d 1198

(App. Div.), certif. granted, 169 N.J. 609,

I a a Dee 3D 16,17

State v. Watson, 2002 WL 58914 (N.J. App. Div.

I Nae ee es 17, 23

Sustache-Rivera v. United States, 221 F.3d 8 (1st Cir.

2000), cert. denied, 121 S.Ct. 1364 (2001) .... 24

Talbott v. Indiana, 226 F.3d 866 (7th Cir. 2000) .... 24

Taylor v. State, 333 Md. 229, 634 A.2d 1322 (1994) . 14

Teague v. Lane, 489 U.S. 288 (1989) ........... 23

United States v. Gaudin, 515 U.S. 506 (1995) ....... 4

United States v. International Business Machines

Corporation, 517 U.S. 843 (1996) ............ 4

——

Vv

United States v. Sanders, 247 F.3d 139 (4th Cir.),

cert. denied, 122 S.Ct. 573 (2001) ......--+-+-- 24

United States v. Watts, 519 U.S. 148 (1997) ......- 22

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

STATUTES:

18 U.S.C.A. § 924(c)(1(A)(ii) (West 2000) ....-. os

18 U.S.C.A. § 2119 (West 2000) .....--- ee eeees 5

42 U.S.C.A. § 13701(2) (West 1995 and

DID cc icccccsevesercccccsvvecs 13

42 U.S.C. § 13704(a)(1) (West 1995 and

“| eppeeerperee rrr rrr: 13

Ala. Code § 13A-5-6(a)(4) (1994) ....---- eee ees 13

Ala. Code § 13A-5-G(a)(S) (1994) ....---- +e e ees 13

Alaska Stat. § 12.55.125(a)(3) (Michie 2000) ....... v7

Alaska Stat. § 12.55.125(b) (Michie 2000) ........ 13

Ariz.Rev.Stat. § 13-604.02(B) (2001) ......--.-- 13,15

Colo.Rev.Stat.Ann. § 18-1-105(9) (West 1986 and

Bee. TID on ccc cccccvcccvccesscoens 14

Fla.Stat.Ann. § 775.082(9)(a)(1) (West 2000 and Supp.

Oe, ras cc nna ennesourae 14,15

vi

730 Ill.Comp.Stat.Ann. 5/3-6-3(a)(2)(iii)

BR Ee RCLa car 14,15

730 Ill.Comp.Stat.Ann. 5/5-5-3(c)(2)(D)

oe ey ee oe 1415

Kan.Stat.Ann. § 21-4618 (West 2000)

Kan.Stat.Ann. § 21-4635 (West 2000)

Md.Ann.Code of 1957, Art. 27, § 286 (1

Supp. 2001) ........... . vasa cad ‘P

Md.Ann.Code of 1957, Art. 27, § 286D (1

Supp. 2001) . eile

Md.Ann.Code of 1957, Art. 27, § 643B (1

ED ‘o's =e 66 wed os greet meveed ,

2 PAS SRS tela pane

Mo.Rev.Stat. § 558.018.5 (West 2000)

1997 N.J. Laws c. 117, § 2, eff. June 9, 1997,

amended by 2001 N.J. Laws c. 129, § 1, eff.

June 29, 2001

1981 N.J. Laws c.31, § 1, eff. February 12, 1981

N.J.Stat.Ann. § 2C:11-5b(1) (West 1995

Supp. 2002) ........ e6eee. - TT TT?

vii

N.J.Stat.Ann. § 2C:43-6g (West 1995) ........... 16

N.J.Stat.Ann. § 2C:43-7.2 (West 1995 and

Supp. 2002) ....--- ee eeeeeeee jseuc

25

N.J.Stat.Ann. § 2C:43-7.2a (West 1995 and

Supp. 2002)... 0... cece eee reece ences 24

N.J.Stat.Ann. § 2C:43-7.2c (West 1995 and

Supp. 2002)... 00sec ec ee cee eeereceees 24

N.J.Stat.Ann. § 2C:44-3e (West 1995) .........--: 8

N.J.Stat.Ann. § 2C:44-6a (West 1995 and

Supp. 2001)... .. ee eee eee eee eres 21

18 Pa.Const.Stat. § 6314(a) (West 2000) ......... 14

18 Pa.Const.Stat. § 6314(b) (West 2000) ........-. 14

18 Pa.Const:Stat. § 6317(b) (West 2000) ......... 14

18 Pa.Const.Stat. § 7508(a) (West 2000)........-. 14

42 Pa.Const.Stat. § 9712 (West 1982) ........--+. 7

42 Pa.Const.Stat. § 9712(a) (West 1998) ......... 13

42 Pa.Const.Stat. § 9712(b) (West 1998) ......... 13

42 Pa.Const.Stat. § 9713(a) (West 1998) ......... 14

42 Pa.Const.Stat. § 9717(a) (West 1998) ......... 14

42 Pa.Const.Stat. § 9718(a) (West 1998) ........-. 14

42 Pa.Const.Stat. § 9719(a) (West 1998) ......... 14

Viii

75 Pa.Const.Stat. § 3742(b) (West 1996) ....... 14-15

Sn ii ede 13

RULE:

ns ed eis 21

OTHER SOURCES CITED:

Paula M. Ditton & Doris James Wilson, U.S.

Department of Justice, Truth in Sentencing

in State Prisons (1999, NCJ 170032) ...-.... 12

Richard S. Frase, Js Guided Discretion Sufficient?

Overview of State Sentencing Guidelines,

44 St.Louis U.L.J. 425 (2000) ........... 18

Nancy J. King & Susan R. Klein, Essential Elements,

54 Vanderbilt L. Rev. 1467 (2001) ........ 13

Wayne R. LaFave, Jerold H. Israel & Nancy J.

King, 5 Criminal Procedure § 26.3(c) (2d ed.

ea wéecwans $46 bee neo 12

Adriaan Lanni, Note, Jury Sentencing in Noncapital

Cases: An Idea Whose Time Has Come (Again)?,

ee Ce ads HUOOEEEE «cc veeasavicces 19

Monograph, U.S. Department of Justice, 1996

National Survey of State Sentencing Structures

oe Per re ere ee 12

ix

Jacqueline E. Ross, Unanticipated Consequences of

Turning Sentencing Factors into Offense

Elements: The Apprendi Debate, Federal

Sentencing Reporter, Vol. 12, No. 4

(January/February 2000) .........----- 20,21

Ronald F. Wright, Rules for Sentencing Revolutions,

108 Yale L.J. 1355 (1999) ........---+-- 21

1

STATEMENT OF AMICTINTEREST

Amicus curiae State of New Jersey, together with 24

other States and Territories, writes in support of respondent

to affirm the judgment below. At issue is the continued

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

which for 16 years has stood for the rule that the Due Process

Clause of the Fourteenth Amendment and the jury trial

guarantee of the Sixth Amendment permit state legislatures to

require courts to impose a mandatory term of imprisonment,

within a prescribed statutory range, when the judge finds a

particular aggravating fact to exist under an evidentiary

standard less than “beyond a reasonable doubt.” Petitioner

ee eee ae

beyond a reasonable doubt on the existence of the

legislatively-defined aggravating circumstance.

The doctrine of stare decisis precludes reversal of

McMillan. Many States, including New Jersey, have

implemented mandatory minimum statutes in their respective

criminal codes, and will be immediately affected by any

modification or wholesale retraction of the McMillan rule.

Those States that at present do not utilize such statutes will

nonetheless feel the impact of any revision to this long-

standing rule if, at some future date, changing penological

demands call for mandatory minimum sentencing schemes.

The States’ reliance on a viable and workable

constitutional rule, and the enormous burden that the States

will be forced to bear if this rule is suddenly invalidated, call

for the, reaffirmance of McMillan. For these reasons and

those elaborated below, we submit this amici curiae brief for

the Court’s consideration.

2

SUMMARY OF ARGUMENT

For sixteen years, McMillanhas enabled state legislatur

to deal with dangerous criminals by mate nanan

requiring the imposition of mandatory minimum terms of

imprisonment, within the statutory range for the offense,

when the sentencing judge finds the existence of a prescribed

“sentencing factor” under an evidentiary standard lower than

beyond a reasonable doubt.” Principles of stare decisis

operate against nullifying the McMillan rule. McMillan is

still good law that need not and should not be overruled.

__ First, nothing in the Court’s more recent jurisprud

invalidates McMillan. Petitioner’s attempt to a eer

bright line” rule of Apprendi v. New Jersey, 530 U.S. 466

(2000), that any fact, other than recidivism, which increases

a sentence beyond the statutory maximum must be presented

to a jury, onto mandatory minimum sentencing statutes, is

defeated by the Apprendj Court’s firm pronouncement that

“Sentencing enhancers” are fundamentally different from

sentencing factors.” :

Second, the multi-prong McMillan test remains entirely

workable. It was last utilized by this Court less than two

years ago in Apprendi. Petitioner himself analyzes the

federal statute at issue using the McMillan test.

Third, many state legislatures have relied upon the

McMillan “sentencing factor” rule since the be was

decided. Countless State prisoners will be subject to early

release if McMillan is overruled. Ironically, these prisoners

are precisely the ones that legislatures, in enacting mandatory

minimum terms, have deemed most deserving of parole

ineligibility terms.

Fourth, policy and practicality dictate retention of the

McMillan rule. Shifting sentencing responsibility away from

the judge will increase the likelihood that juries will acquit a

i i i

3

defendant of the criminal charges, rather than impose a stiff

mandatory minimum. It will prejudice criminal defendants by

requiring them to pursue mutually-exclusive strategies as they

seek to maintain their innocence while at the same time seek

to mitigate their punishment. It will drive up the cost of jury

trials which were once unitary but may now need to be

bifurcated. And it will impose an undue burden on jurors

who must put aside other responsibilities to sit through a

second phase of trial, often weeks after the guilt phase ended.

Finally, if this Court is inclined to overrule McMillan,

any new rule must be given prospective application only, in

order to forestall the flood of petitions for collateral relief that

will inevitably ensue. |

In the end, there is no sound justification for invalidating

the McMillan rule. The amici States and Territories urge its

reaffirmance.

ARGUMENT

THE CONSTITUTIONAL RULE OF McMILLAN

REMAINS GOOD LAW, AND PRINCIPLES OF

STARE DECISIS PRECLUDE THIS COURT

FROM OVERRULINGITS VALID PRECEDENT.

Petitioner sets forth alternative arguments for vacating his

mandatory minimum term of seven years imposed pursuant to

18 U.S.C.A. § 924(c)(1)(A)(ii) (West 2000), following the

sentencing court’s finding that petitioner “brandished” a

firearm during the course of his drug trafficking crime. His

fallback position is to ask this Court to overrule the 1986

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

which endorsed mandatory minimum sentences imposed when

a judge finds the of an aggravating sentencing factor

prescribed by the legislature. Petitioner claims the holding of

McMillan is no longer viable in light of the more recent rule

of Apprendi 530 U.S. 466 (2000), that any fact, other than

4

recidivism, which increases a sentence beyond the statutory

maximum must be presented to a jury. McMillanis still good

law, however, and principles of stare decisis preclude this

Court from abrogating its precedential value.

The Court traditionally approaches reconsideration of its

own decisions “with utmost caution.” State Oil Company v.

Khan, 522 U.S. 3, 20 (1997). Whether or not this Court

would today agree with the precept of McMillan, “the

principles of stare decisis weigh heavily against overruling it

now.” Dickerson v. United States, 530 U.S. 428, 443

(2000). The policy of stare decisis favors adherence to

precedent and “promotes stability, predictability, and

for judicial authority.” Hilton v. South Carolina Public

Railways Commission, 502 U.S. 197,202 (1991); accord

United States v. International Business Machines Corporation,

517 U.S. 843, 856 (1996). “[E]ven in constitutional cases,

the doctrine [of stare decisis] carries such persuasive force

that we have always required a departure from precedent to

be supported by some ‘special justification.’” Payne v.

Tennessee, 501 U.S. 808, 842 (1991) (Souter, J., concurring)

(quoting Arizona v. Rumsey, 467 U.S. 203, 212 (1984)).

Petitioner fails to offer the requisite “special justification” to

abandon the long-standing precedent of McMillan, bécause

the Apprendi rule does not at all weaken the validity of this

decision. See United States v. Gaudin, 515 U.S. 506, 521

(1995).

From the time it was decided in 1986, McMillan has

permitted state legislatures to enact statutes requiring

sentencing courts to impose mandatory minimum terms upon

finding specific aggravating sentencing factors under an

evidentiary standard less than “beyond a reasonable doubt.”

The Apprendi majority acknowledged “the likelihood that

legislative decisions may have been made in reliance on

McMillan,” and saved “for another day the question whether

stare decisis considerations preclude reconsideration of its

narrower holding.” Apprendi, 530 U.S. at 486 n.13. If that

5

day has arrived, this Court should reaffirm McMillan,

because it is still good law.

A. The New “Bright Line” Rule Announced by the

Apprendi Court Casts No Doubt on the Continued

Validity of McMillan. |

Relying on Jones v. United States, 526 U.S. 227, 239

(1999), petitioner’s primary argument in support of reversal

of the Fourth Circuit opinion below is one of statutory

construction. (Pet. Brief at 8-26). Petitioner contends, when

read correctly, the text of § 924(c)(1)(A)(ii) makes

“brandishing” an element of the predicate crime of violence

or drug trafficking to be determined by a jury under the

“beyond a reasonable doubt” standard, and not a separate

sentencing factor which, when found by the judge, triggers

the imposition of a mandatory minimum term of seven years.

Jones examined the enhanced peualties available under

the grading sections of the federal carjacking statute, 18

U.S.C.A. § 2119 (West 2000), if the offense resulted in

serious bodily injury or death. Employing a textual analysis,

the Court construed § 2119 as establishing three separate

offenses by the specification of distinct elements. Jones, 526

US. st 362. In the case presently before this Court,

petitioner claims that the structure of the brandishing statute,

§ 924(c)(1)(A)(ii), is “indistinguishable from that in Jones,

and requires a similar outcome based on principles of

statutory construction. (Pet. brief at 6).

Alternatively, petitioner contends, the United States

Connleation fuaeiste than 0 finding of brandishing 2 firearm

in the furtherance of any crime of violence or drug trafficking

under § 924(c)(1)(A)(ii) must be treated as an element of the

offense. To reach this latter option, petitioner asks this Court

to take the drastic step of overruling McMillan by extending

the narrow holding of Apprendi to all mandatory mimimum

term statutes. (Pet. Brief at 27-45). The development of

6

related principles of law, including the Apprendi

ner et it deed te Mehul at,"

~

505 U.S. 833, 855 (1992). i ca aaa

Over one-half century ago, the Court found that

. . . . the

yuuted States Constitution was not offended when the New

ork State Legislature conferred broad discretionary powers

on sentencing courts in fixing individualized punishments for

convicted offenders. Williams v. New York, 337 U.S. 241

249-52 (1949). Examining the historical basis for different

evidentiary rules governing trial and sentencing procedures

the Williams Court noted that sentencing courts have for

appropriate terms of i mi ar | " :

of incarceration withi

= within prescribed statutory

Tribunals passing on the guilt of a

“yy always have fy at

in by strict evidentiary procedural

since the American colonies became

a nation, courts in this country and in

England practiced a policy under

which a sentencing judge could

exercise a wide discretion in the

sources and types of evidence used to

assist him in determining the kind

and extent of punishment to be

imposed within limits fixed by law.

Williams, 337 U.S. at 246.

“Sound practical reasons” further justified different

evidentiary rules governing trial and sentencing procedures.

Ibid. The guilt phase of a criminal trial deals with evidence

Ts Sirictly relevant to the particular offense charged.”

- at 247. Consequently, evidence related to sentencing

7

should be excluded at the guilt phase, so as not to improperly

influence the trier of fact. Jbid. The sentencing court, in

contrast, “is not confined to the narrow issue of guilt” but is

concerned solely with the appropriate type and length of

punishment after the question of guilt has been determined.

Ibid.

Almost forty years after Williams, the McMillan Court

concluded that it was constitutional for state legislatures to

designate which aggravating factors found by the sentencing

court required the imposition of mandatory parole ineligibility

periods. The result in McMillan depended in part on the

Court’s appreciation of and adherence to Williams. Citing to

Williams, the McMillan court noted, “Sentencing courts have

traditionally heard evidence and found facts without any

prescribed burden of proof at all.” McMillan, 477 U.S. at

91.

At issue in McMillan was a provision of Pennsylvania’s

Mandatory Minimum Sentencing Act, 42 Pa.Const.Stat. §

9712 (West 1982), authorizing judges to sentence anyone

convicted of certain enumerated felonies to no less than five

years imprisonment if the judge found, by a preponderance of

the evidence, that the person “visibly possessed a firearm”

during the commission of the offense. McMillan, 477 U.S.

at 80-82. Rebuffing the petitioners’ contention that visible

ion of a firearm was an element of the offense that had

to be proven beyond a reasonable doubt, the Court noted that

the legislature's definition of the elements of the offense is

usually dispositive in distinguishing between essential

elements of an offense and mere sentencing factors. Jd. at

85.

The McMillan Court scrutinized the Pennsylvania statute

using multiple criteria to determine the constitutionality of

imposing a mandatory minimum sentence based on a finding

of a fact not proven beyond a reasonable doubt. Jd. at 87-88.

The Court found that the Act created no presumptions of

in selecting a penalty within the range already available to it

special finding of visible possession of a firearm.

McMillan, 477 U.S. at 87-88. Nor was a separate offense

calling for a separate penalty created. Jd. at 88.

_ Finally, the statute gave “no impression of having been

tailored to permit the visible possession finding to be a tail

which wags the dog of the substantive offense.” Jbid.; see

also Almendarez-Torres v. United States, 523 U.S. 224, 242-

43 (1998). The Pennsylvania Legislature “did not change the

definition of any existing offense. It simply took one factor

that has always been considered by sentencing courts to bear

on punishment -- the instrumentality used in committing a

violent felony -- and dictated the precise weight to be given

that factor if the instrumentality is a firearm.” McMillan,

477 U.S. at 89-90. All that McMillan added to the Williams

doctrine was to allow legislatures to limit the sentencing

court’s discretion by specifying those aggravating factors

which require the imposition of a minimum penalty within a

statutorily-prescribed range.

_ Avery different type of sentencing statute was challenged

in Apprendi. New Jersey’s Hate Crime Statute,

N.J.Stat.Ann. § 2C:44-3e (West 1995), at the time required

the sentencing judge to extend a defendant’s maximum term

of imprisonment for the predicate offense if the judge

determined, by a preponderance of the evidence, that “[t}he

defen in committing the crime acted with a purpose to

intimidate an individual or group of individuals because of

SO OO repr

9

race, color, gender, handicap, religion, sexual orientation or

ethnicity.” Apprendi, 530 U.S. at 468-49. This statutory

scheme was found unconstitutional, because it deprived the

petitioner of a jury finding beyond a reasonable doubt of facts

which exposed him to a penalty greater than the statutory

maximum for the offense charged in the indictment. Jd. at

490. The Apprendi Court articulated this “bright line” rule:

“Other than the fact of a prior conviction, any fact that

increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved

beyond a reasonable doubt.” bid.

The Apprendi Court expressly restricted the reach of its

new rule by drawing a crucial distinction between a

“sentencing enhancement,” which requires a jury finding

beyond a reasonable doubt, and a “sentencing factor” which

does not:

The term [sentencing factor]

appropriately describes a

circumstance, which may be either

aggravating or mitigating in

character, that supports a specific

by the jury’s finding that the

defendant is guilty of a particular

offense. On the other hand, when the

term “sentence enhancement” is used

to describe an increase beyond the

maximum authorized statutory

sentence, it is the functional

equivalent of an element of a greater

offense than the one covered by the

jury’s verdict. Indeed, it fits

squarely within the usual definition of

an “element” of the offense.

10

\

Apprendi, 530 U.S. at 494 n.19 (emphasis in original). The

Court expressly declined to apply this new “bright line” rule

to mandatory minimum sentencing terms. Apprendi, 530

U.S. at 487 0.13.

Tracing the development of criminal sentencing in this

country, the Apprendi Court made perfectly clear “that

nothing in this history suggests that it is impermissible for

judges to exercise discretion -- taking into consideration

various factors relating both to offense and offender -- in

imposing a judgment within the range prescribed by statute.”

Apprendi, 530 U.S. at 481 (emphasis in original). Wéil/iams

was specifically cited twice in support of this proposition. Jd.

at 481, 482. The Apprendi decision gives no hint, let alone

declares, that McMillan, which recognized that a sentencing

judge’s discretion could be reined in by the legislature, is

constitutionally unsound. To the contrary, the Apprendi

majority noted that its reasoning did not conflict with

McMillan’s narrow holding, because the statute in McMillan

did not increase the overall maximum term. Apprendi, 530

U.S. at 495.

The Apprendi decision does not change or erode the

fundamental principal of McMil/an. In fact, Apprendi

upholds and respects its validity. Apprendi stands for nothing

more than what it plainly says: “Other than the fact of a prior

conviction, any fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be submitted

to a jury, and proved beyond a reasonable doubt.” Apprendi,

530 U.S. at 490. The Apprendi majority expressly declined

to extend this very narrow holding to mandatory minimum

sentencing terms, explaining in no uncertain terms, “We do

not overrule McMillan.” Apprendi, 530 U.S. at 487 n.13.

1]

The rule of McMillan is not an “abandoned doctrine,” Casey,

505 U.S. at 855, that can, or should, be abrogated.’

B. The McMillan Rule Remains Entirely Workable.

Certainly, the multi-faceted test formulated in McMillan

has not proven “unworkable.” See Casey, 505 U.S. at 855.

The Apprendi court in fact used it to show why New Jersey’s

Hate Crime sentencing enhancement statute, which increased

the petitioner’s sentence beyond the prescribed statutory range

for the predicate offense, did mot pass constitutional muster

under McMillan. Apprendi, 503 U.S. at 495-96. The

McMillan test was also employed by the Court two years

earlier to find that the Constitution permits a legislature to

authorize the judge to impose an enhanced sentence based on

the traditional sentencing factor of recidivisim. A/mendarez-

Torres, 523 U.S. at 242-24. And, most telling of all, in

arguing that Congress restructured existing crimes in order to

evade the commands of Jn re Winship, 397 U.S. 358 (1970),

thereby relieving the prosecution of its burden of proving

guilt, petitioner himself subjects § 924(c)(1)(A) to the

McMillan test. (Pet. Brief at 45-47).

C. The States’ Reliance on the McMillan Rule Demands

its Reaffirmance.

The McMillan rule “is subject to a kind of reliance that

would lend a special hardship to the consequences of

overruling and add inequity to the cost of repudiation,”

That McMillan was decided by a narrow 5-4 split ought not

undermine its authority. It has continued to be good law for the past

sixteen years. Apprendi, 530 U.S. at 487 n.13. And, to the extent that

the narrow 5-4 majority in McMillan gives any indication that its

precedential value rests on shaky ground, it should not be overruled by

the recent Apprendi decision, which itself was decided by a slim 5-4

majority only two terms ago.

12

Casey, 505 U.S. at 854, because many states have reasonably

relied on McMillan’s continued application. See id. at 855.

The consequences of abrogating long-standing precedent

guiding state legislatures “will likely be severe.” Apprendi,

530 U.S. at 544 (O’Connor, J., dissenting). If this Court

holds that every fact relevant to the determination of a

mandatory minimum sentence must be decided by a jury, by

proof beyond a reasonable doubt, “its decision will have the

effect of invalidating significant sentencing reform

accomplished at the federal and state levels over the past three

decades.” Jd. at 549.

Mandatory minimum sentencing laws are the product of

a movement towards determinate sentencing that decreases

disparate punishment. They are “designed to control the

discretion of judges and parole boards and advance the goals

of deterrence and incapacitation.” Wayne R. LaFave, Jerold

H. Israel & Nancy J. King, 5 Criminal Procedure, at 735 §

26.3(c) (2d ed. 1999). By February 1996, all 50 states and

the District of Columbia employed some version of

mandatory minimum sentencing laws where the triggering

factor is found either by the judge or the jury. Most of these

laws target habitual offenders and the crimes of possessing a

deadly weapon, driving under the influence of alcohol, and

possessing and/or distributing drugs. Monograph, U.S.

Department of Justice, 1996 National Survey of State

Sentencing Structures (1998, NCJ 169270), Exhibits 1-1, 1-4.

“Truth in sentencing” laws requiring violent offenders to

serve 50% to 100% of the maximum sentence imposed prior

to release have also become common throughout the United

States. By 1999, 42 states had adopted such laws. Paula M.

Ditton & Doris James Wilson, U.S. Department of Justice,

13

Truth in Sentencing in State Prisons (1999, NCJ 170032),

Table 1.”

At least five states and one gener carn the dow a

to impose mandatory minimum terms following a judic

finding, by a preponderance of the evidence, that the

defendant possessed a firearm. Nancy J. King & Susan R.

Klein, Esseatial Elements, 54 Vanderbilt L.Rev. 1467, 1492

(2001); see, e.g., Alabama: Ala. Code § 13A-5-6(a)(4), (5)

(1994); Ex parte Guess, 507 So.2d 551 (Ala. 1987); Kansas:

Kan.Stat.Ann. § 21-4618 (West 2000) (applies to crimes

committed prior to July 1, 1993); State v. McCarty, 224 Kan.

179, 578 P.2d 274 (1978); Minnesota: Minn.Stat.Ann. §

609.11 (West 1987 and Supp. 2002); New Jersey:

N.J.Stat.Ann. § 2C:43-6c, d (West 1995); Pennsylvania: 42

Pa.Const.Stat. § 9712(a), (b) (West 1998); McMillan, 477

U.S. at 81-82; United States Virgin Islands: Virgin Islands

Gun Control Act of 2001, 2001 V.I. Sess.Laws 6493.

Other examples of mandatory minimum sentencing

statutes where the triggering factor is found by the judge and

is not necessarily encompassed in a jury verdict are in effect

in Alaska [Alaska Stat. § 12.55.125(b) (Michie 2000)

(relationship of child-murder victim to defendant)}; Arizona

[Ariz.Rev.Stat. § 13-604.02(B) es (release status); State

v. Cox, 37 P.3d 437 (Ct.App. Ariz. 2002)], Colorado

. States that enact sentencing laws requiring that all persons

convicted of “part 1 violent crimes” serve not less than 85% of the

sentence imposed (without counting time not actually served, such as

administrative or statutory incentives for good behavior) are eligible for

federal grant awards under the Violent Offender Incarceration and Truth-

in-Sentencing programs (VOITIS). 42 U.S.C. § 13704(a)(1) (West 1995

and Supp. 2001) (“Truth-in-sentencing incentive grants”). “Part 1 violent

crimes” are defined as “murder and non-negligent manslaughter, forcible

rape, robbery, and aggravated assault, as reported to the Federal Bureau

of Investigation for purposes of the Uniform Crime Reports.” 42 U.S.C.

§ 13701(2) (West 1995 and Supp. 2001) (“Definitions”).

14

[Colo.Rev.Stat.Ann. § 18-1-105(9) (West 1986 and Supp.

1996) (“extraordinary aggravating circumstances”)], Florida

[Fla.Stat.Ann. § 775.082(9)(a)(1) (West 2000 and Supp.

2002) (Prison Releasee Reoffender Act); McGregor v. State,

789 So.2d 976 (Fla. 2001)]}, Illinois [730 Ill.Comp.Stat.Ann.

5/5-5-3(c)(2)(D) (West 1998) (quantity of drugs); People v.

Phillips, 759 N.E.2d 946 (Ill. App. 2001); 730

Ill.Comp.Stat.Ann. 5/3-6-3(a)(2)(iii) (West 1998) (victim

suffered great bodily harm); People v. Fender, 757 N.E.2d

645 (Ill. App. 2001)], Kansas [Kan.Stat.Ann. § 21-4635

(West 2000) (“hard 40” for first degree murder); State v.

Conley, 270 Kan. 18, 11 P.3d 1147 (2000), cert. denied, 121

S.Ct.1383 (2001)], Maryland [Md.Ann.Code of 1957, Art.

27, § 286 (1996 and Supp. 2001) (repeat drug offender);

Gardner v. State, 344 Md. 642, 689 A.2d 610 (1997);

Md.Ann.Code of 1957, Art. 27, § 286D (1996 and Supp.

2001) (repeat drug offender in school zone); Md.Ann.Code

of 1957, Art. 27, § 643B (1996 and Supp. 2001) (second

conviction of crime of violence); Taylor v. State, 333 Md.

229, 634 A.2d 1322 (1994)], Missouri [Mo.Rev.Stat. §

558.018.5 (West 2000) (predatory sexual offender)] and

Pennsylvania [18 Pa.Const.Stat. § 6314(a) (West 2000)

(delivery of controlled substance to a minor); 18

Pa.Const.Stat. § 6314(b) (West 2000) (four specified

circumstances present during delivery of controlled

substance); 18 Pa.Const.Stat. § 6317(b) (West 2000) (delivery

of controlled substance within specified distance of school

property, playground or on a school bus); 18 Pa.Const. Stat.

§ 7508(a) (West 2000) (mature and quality of controlled

substance delivered or intended for delivery); 42

Pa.Const.Stat. § 9713(a) (West 1998) (specified offense

comunitted in or near public transportation); 42 Pa.Const. Stat.

§ 9717(a) (West 1998) (victim is over 60 years of age and not

a police officer); 42 Pa.Const.Stat. § 9718(a) (West 1998)

(victim is either under 16 years of age or 13 years of age); 42

Pa.Const.Stat. § 9719(a) (West 1998) (offense committed by

person impersonating a law enforcement officer); 75

15

Pa.Const.Stat. § 3742(b) (West 1996) (leaving scene of

accident involving serious bodily injury or death).

Appellate courts in several states have taken the Apprendi

Court at its word when it advised, 530 U.S. at 487 n.13, “We

do not overrule McMillan.” These courts have expressly

found their respective mandatory minimum sentencing statutes

constitutional under Apprendi. See McGregor v. State, 789

So.2d at 977-78 (Supreme Court of Florida upheld

Fla.Stat.Ann. § 775.082(9)(a)(1), requiring the imposition of

a mandatory minimum equal to 100% of maximum term

imposed when the sentencing court finds the defendant

committed or attempted to commit any of the enumerated

crimes within three years of being released from a state

correctional facility); State v. Conley, 270 Kan. at 30-35, 11

P.3d at 1157-1160 (Supreme Court of Kansas upheld “hard

40” mandatory minimum sentence, Kan.Stat.Ann. § 21-4635,

imposed when the sentencing court finds, under the

“preponderance of the evidence” standard, certain

aggravating factors warranting an increase of the parole

ineligibility period for first-degree premeditated murder from

25 to 40 years); State v. Cox, 37 P.3d at ____ (Court of

Appeals of Arizona upheld Ariz.Rev.Stat. § 13-604.02(B),

which permits the sentencing court to increase the mandatory

minimum term based on a finding by clear and convincing

evidence of the defendant’s release status); People v. Phillips,

759 N.E.2d at 949-50 (Court of Appeals of Illinois upheld

730 © Il.Comp.Stat.Ann. 5/5-5-3(c)(2)(D), authorizing

sentencing courts to impose a four-year mandatory minimum

sentence upon finding that the quantity of cocaine in the

defendant’s possession with intent to deliver was in excess of

five grams); People v. Newbolds, 757 N.E.2d 664, 665-66

(Ill. App.) (Court of Appeals of Illinois upheld 730

[ll.Comp.Stat.Ann. 5/3-6-3(a)(2)(iii), requiring a defendant

to serve 85% of his term of imprisonment when sentencing

court makes a finding that the victim suffered great bodily

harm), appeal denied, N.E.2d (2001); People v.

Fender, 757 N.E.2d at 652-54 (same). “These states should

16

not be confronted with an unexpected rule mandating that

what were once factors bearing upon the sentence must now

be treated as offense elements for determination by the jury.”

Jones, 526 U.S. at 271 (Kennedy, J., dissenting).

Several of New Jersey’s mandatory minimum sentences

have likewise been challenged under Apprendi. Unlike other

state courts, however, the New Jersey judiciary has acted in

anticipation that McMil/an may be overruled. In State v.

Johnson, 166 N.J. 523, 547, 766 A.2d 1126, 1140 (2001),

the Supreme Court of New Jersey construed the 1997 “No

Early Release Act” (NERA), N.J.Stat.Ann. § 2C:43-7.2

(West 1995 and Supp. 2002), to require a jury finding beyond

a reasonable doubt that the defendant committed a “violent”

crime before a mandatory parole ineligibility period equal to

85% of the maximum term could be imposed.

Acknowledging, as it had to, that the Apprendi decision

specifically declined to overrule McMillan, the Supreme

Court of New Jersey applied the state’s “constitutional doubt”

doctrine and interpreted the text of NERA so as to avoid the

constitutional question. Johnson, 166 N.J. at 540-41, 543-44,

766 A.2d at 1136, 1138.

Consistent with the statutory analysis employed in

Johnson, the Superior Court of New Jersey, Appellate

Division, has interpreted two different mandatory minimum

sentencing statutes to require jury findings beyond a

reasonable doubt of the predicate fact triggering mandatory

minimum sentencing. State v. Petrucci, 343 N.J. Super. 536,

779 A.2d 429 (App. Div. 2001) (under assault firearms

statute, N.J.Stat.Ann. § 2C:43-6g (West 1995), jury must

determine whether a particular firearm is “substantially

identical” to an enumerated firearm or type of firearm),

petition for certif. pending, __,N.J.__,__ A.2d __ (2002);

State v. Stanton, 339 N.J. Super. 1, 770 A.2d 1198 (App.

Div.) (under vehicular homicide statute, N.J.Stat.Ann. §

2C:11-5b(1) (West 1995 and Supp. 2001), jury must

determine whether the defendant was driving under the

17

influence of alcohol or drugs at the time of the offense),

pt granted, 169 N.J. 609, 782 A.2d 427 (2001). Ina

third case, State v. Watson, 2002 WL58914, at *8 (N.J. App.

Div. January 16, 2002), the appellate court sidestepped the

constitutional issue, but advised trial judges in future cases to

submit to the jury the question whether under the firearm

possession statute, N.J.Stat.Ann. § 2C:43-6c, the defendant

used or possessed a firearm. Cf Malloy v. State, 1 P.3d

1266, 1280-88 (Alaska Ct. App. 2000) (appellate court held

that Alaska Stat. § 12.55.125(a)(3) (Michie 2000), which

increases the mandatory minimum term for first degree

murder from 20 to 99 years and restricts the defendant's

eligibility for discretionary parole when “the court finds by

clear and convincing evidence that the defendant subjected the

murder victim to substantial physical torture, denied

defendant her rights to due process, jury trial and grand jury

indictment under the Alaska State Constitution), pet. Arg

granted (Alaska 2000). There is, therefore, much at stake in

New Jersey, as well as every other state with mandatory

minimum sentencing statutes.

That not all jurisdictions have designated the ee

judge as the finder of facts triggering mandatory minim

on not lessen the enormous impact of overruling McMillan.

“[T}he fact that the States have formulated different statutory

schemes to punish [criminals] is merely a reflection of our

federal system, which demands ‘[t]olerance for a spectrum of

state procedures dealing with a common problem of law

enforcement.’” McMillan, 477 U.S. at 90 (quoting Spencer

v. Texas, 385 U.S. 554, 566 (1967)). Legislatures that have

chosen particular models of sentencing for dealing with their

prison populations should be free to modify or abandon them

. upreme Court of New Jersey during oral argument in Siate

v. Pw 3, 2002, indicated its intention to await this Court’s

decision in Harris before assessing the constitutionality of the mandatory

minimum sentencing provision in the vehicular homicide statute,

PJ. Stat.Ann. § 2C:11-5b(1), under McMillan.

18

when they no longer fit the penological needs of their state.

See Richard S. Frase, Js Guided Discretion Sufficient?

Overview of State Sentencing Guidelines, 44 St.Louis U.L.J.

425, 427 (2000) (moting that two states, Louisiana and

Wisconsin, repealed their respective sentencing guidelines).

States that at the moment do not entrust the imposition of

mandatory minimums to the judiciary may find in the future

that vesting sentencing judges with this responsibility better

suits their demands for sentencing reform. Overruling

McMillan will thus affect every state, not only those which

presently authorize judges to impose mandatory minimum

— when specified aggravating circumstances are

ound.

__ The Apprendi decision has generated a tidal wave of

litigation: as of February 2002, Westmate™ lists close to

2,700 state and federal cases citing to Apprendi. There is no

reason to believe that overruling McMillan will have any less

impact on state courts. Indeed, the predictable fallout from

reversal of McMillan cannot be overstated. It will create an

avalanche of post-conviction applications in the state courts,

as well as habeas corpus petitions in the federal courts, by

State prisoners sentenced under laws which at the time were

deemed constitutional. New Jersey’s Graves Act,

N.J.Stat.Ann. § 2C:43-6c, for example, requires the

sentencing court to fix a mandatory term of one-third to one-

half the maximum sentence imposed for the underlying

offense if the judge finds, by a preponderance of the

evidence, the person was in possession of a firearm “while in

the course of committing or attempting to commit the crime,

including the immediate flight therefrom ....” N.J.Stat.Ann.

§ 2C:43-6d. This law was enacted in 1981. 1981 N.J. Laws

e.3i, § 1, eff. February 12, 1981. More than twenty years

have since passed, and thousands of New Jersey state

prisoners will inundate the state and federal court dockets

demanding early release if McMillan is overruled. All of

these prisoners possessed a firearm while committing their

—

19

crimes, making them among the state’s most violent

offenders.‘

D. Sound Reasons of Policy and Practicality Favor

Retention of the Historical Demarcation Between

Jury and Judicial Functions.

“The principle that juries are not to consider the

of their verdicts is a reflection of the basic

division of labor in our legal system between judge and jury.”

Shannon v. United States, 512 U.S. 573, 579 (1994).

Blurring this dividing line comes at great practical and

monetary cost to the criminal justice system.

In the unitary trial format, an increase in jury

nullification is a natural consequence of informing jurors of

mandatory penalties in the course of the trial. “[T]here is

evidence” that jurors who are aware of mandatory minimum

terms “choose to nullify rather than condemn a guilty

defendant to such a severe sentence.” Adriaan Lanni, Note,

Jury Sentencing in Noncapital Cases: An Idea Whose Time

Has Come (Again)?, 108 Yale L.J. 1775, 1784 (1999). The

breakdown of the separate functions traditionally delegated to

judges and juries thus puts the prosecution at a distinct

disadvantage: even when the state is able to prove a

sentencing factor beyond a reasonable doubt, the jury, unlike

the judge, has the power to disregard the law and acquit,

without any recourse for the prosecution under double

jeopardy principles. This will also complicate jury selection,

because potential jurors who are unable or unwilling to

: We have been informed by Stanley Repko, Director, Office of

Policy and Planning, New Jersey Department of Corrections, as of

January 2002, of the 27,400 inmates housed in New Jersey state prisons,

16,714 (approximately 60%) were serving fixed periods of parole

20

Coneiter guilt seperately from punishment amet be weeded

Reallocating sentencing decisions to the jury will surely

Clog the trial court system in states with mandatory minimum

sentencing statutes. Even defendants who plead guilty to the

substantive offense could demand that a jury make the

determination whether a mandatory minimum sentencing

factor applies. And, when the accused believes that the

prosecution cannot meet its burden of proving a particular

triggering factor beyond a reasonable doubt, he has a strong

incentive to reject any plea offer that includes a mandatory

minimum sentence and instead take his chances at a jury trial.

“There are, to put it simply, far too many potentially

relevant sentencing factors to permit submission of all (or

even many) of them to a jury.” Apprendi, 530 U.S. at 557

(Breyer, J., dissenting). Indictments and jury instructions

will become more cumbersome than they are now. Asking a

0 SS eS Ee ey OS Cece

unworkable seriously compromise the certainty of

punishment and its deterrent effect.” Ibid. (quoting United

States Sentencing Commission, Supplementary Report on the

era ee a ey ee a,

as they try to avoid conviction by maintaining their

innocense, while they simultaneously attempt to mitigate their

sentence if convicted. Almendarez-Torres, 523 U.S. at 235;

Monge v. California, 524 U.S. 721, 729 (1998). Often, the

strategies of seeking an outright acquittal and seeking a

lenient sentence are at odds with each other.

Requiring defendants to confront aggravating factors at trial

burdens their right not to testify and not to present evidence.

21

into Offense Elements: The Apprendi Debate, Federal

‘Sentencing Reporter, Vol. 12, No. 4 (January/February

2000). It will be difficult, if not impossible, at such trials to

craft comprehensible instructions completely eradicating the

prejudice to the accused when evidence is admitted on the

issue of punishment but cannot be considered by the jury on

the issue of guilt. Cf Shannon, 512 U.S. at 579 (“providing

jurors sentencing information ... creates a strong possibility

of confusion.”).

Bifurcated trials in which the jury first considers guilt

and then considers punishment in separate proceedings will

inevitably follow when the sentencing factor is not an

essential element of the predicate offense, but this is an

ineffective solution. “Bifurcating fact-finding at trial will not

resolve the inherent tension between strategies aimed at

securing acquittal and those that tacitly acknowledge some

guilt in the hope of mitigating punishment.” Ross, supra at

Bifurcation is also costly and impractical. The finder of

fact at sentencing hearings must have reliable evidence of

aggravating and mitigating sentencing factors. Jurors who sat

at the guilt phase thus may have to be recalled weeks or

months later when the presentence or probation investigation

is finally completed. Ronald F. Wright, Rules for Sentencing

Revolutions, 108 Yale L.J. 1355, 1377 (1999) (book review);

see, e.g., N.J.Stat.Ann. § 2C:44-6a (West 1995 and Supp.

2001) (“The court shall not impose sentence without first

ordering a presentence investigation of the defendant and

according due consideration to a written report of such

investigation when required by the Rules of Court.”); N.J.

Court Rule 3:21-2(a) (“Before the imposition of a sentence

or the granting of probation court support staff shall make a

presentence investigation in accordance with [N.J.Stat.Ann.}

§ 44-¢ and shall report to the court. The report shall contain

all presentence material having any bearing whatever on the

sentence and shall be furnished to the defendant and the

22

prosecutor.”). This puts an undue hardship on jurors who

have already fulfilled their civic duty, yet once again must set

aside their obligations to their families and jobs to assume

what historically has been strictly a judicial function.

Impaneling an entirely new group of jurors at the sentencing

phase eliminates the strategic problems involved in recalling

guilt-phase jurors, but it, too, is a time-consuming and costly

There also exists the very real risk that the public will be

endangered by requiring all mandatory minimum terms be

found by a jury beyond a reasonable doubt. As noted above,

juries reluctant to impose a mandatory term may opt instead

for acquitial. In other cases where the prosecution is unable

to meet the high burden of proof br-yond a reasonable doubt,

but can meet a lower evidentiary standard, mandatory

minimum terms cannot be imposed. The result is that the

most threatening criminals whom state legislatures have

designated as least deserving of early parole (such as those in

possession of a firearm during the commission of the offense)

will, under a reallocation of sentencing facts, be more likely

to be sentenced without the mandatory parole ineligibility

periods that keep them in prison and safely away from the

general public.”

E. Any Modification in the McMillan Rule Should Be

Given Prospective Application Only.

Should this Court choose to extend Apprendi to require

be found by a jury beyond a reasonable doubt, the amici

. Requiring sentencing facts to be found under the “beyond a

reasonable doubt” standard also conflicts with the Court’s precedent that

sentencing courts may consider uncharged or acquitted conduct in fixing

ithi an Minuet @ Ghieed

States, 523 U.S. 511 (1998); United States v. Watts, 519 U.S. 148 (1997)

(per curiam).

23

States and Territories strongly urge this Court to make plain

that this rule, which would place a new obligation on the

states and federal government, is prospective only. See

Teague v. Lane, 489 U.S. 288, 301 (1989). Retroactive

application will lead to an administrative crisis for the state

court systems which will be overrun with petitions for

collateral relief.

The courts of New Jersey realize the overwhelming

burden the state will bear if a similar rule is applied

retroactively. In Johnson, 166 N.J. at 547, 766 A.2d at

1140, the Supreme Court of New Jersey construed the 1997

“No Early Release Act” (NERA), N.J.Stat.Ann. § 2C:43-

7.2, to require a jury finding beyond a reasonable doubt that

the defendant committed a “violent” crime before a parole

ineligibility period equal to 85% of the maximum term could

be imposed. Until Johnson, the sentencing courts had made

that finding under a lesser evidentiary standard. Noting that

“[rjetroactive application of today’s ruling could result in

post-conviction petitions from a large number of inmates

currently serving NERA sentences[,]” the Supreme Court of

New Jersey deliberately made its ruling prospective only.

Johnson, 166 N.J. at 547, 766 A.2d at 1140. Similarly, in

Watson, 2002 WL58914, at *8, the Superior Court of New

Jersey, Appellate Division, stopped short of striking down the

firearms possession statute, N.J.Stat.Ann. § 2C:43-6c, d, as

unconstitutional, but urged trial judges in future cases to

submit special verdicts to the jury in Graves Act cases where

the use or possession of a firearm is not an element of the

predicate offense. The state courts are rightfully worried

about the application of a new rule based on an extension of

Apprendi “when such an application would undermine the

24

validity of a large number of convictions.” Johnson, 166

N.J. at 547, 766 A.2d at 1140.°

This Court should note that the states’ legislative reaction

to overruling McMillan will likely be similar to the New

Jersey Legislature’s response to the Johnson decision by the

Supreme Court of New Jersey. NERA, as originally enacted,

imposed a mandatory minimum prison term of 85% of the

overall sentence for any first- or second degree conviction

found by the sentencing judge to be a “violent crime.”

N.J.Stat.Ann. § 2C:43-7.2a, c. NERA defined “violent

crime” as

[aJny crime in which the actor causes

death, causes serious bodily injury as

defined in subsection b. of N.J.S. 11-

1, or uses or threatens the immediate

use of a deadly weapon. “Violent

crime” also includes any aggravated

sexual assault or sexual assault in

which the actor uses, or threatens the

immediate use of, physical force.

Thus, for example, under the original NERA statute, a person

armed with a firearm during the course of a robbery would

. Federal circuit courts of appeal in every circuit have refused to

apply Apprendi retroactively, and no conflict exists on this issue: See

Sustache-Rivera v. United States, 221 F.3d 8, 14-15 (1st Cir. 2000), cert.

denied, 121 S.Ct. 1364 (2001); Forbes v. United States, 262 F.3d

143, 145-46 (2d Cir. 2001); In re Turner, 267 F.3d 225, 227-30 (3d Cir.

2001); United States v. Sanders, 247 F.3d 139, 146-51 (4th Cir.), cert.

denied, 122 $.Ct. 573 (2001); Jn re Tatum, 233 F.3d 857, 859 (Sth Cir.

2000); Jn re Clemmons, 259 F.3d 489, 493 (6th Cir. 2001); Ta/bort v.

Indiana, 226 F.3d 866, 868-70(7th Cir. 2000); Rodgers v. United States,

229 F.3d 704, 706 (8th Cir.2000); Jones v. Smith, 231 F.3d 1227, 1236-

38 (9th Cir. 2000); Browning v. United States, 241 F.3d 1262, 1266

(10th Cir. 2001); Jn re Joshua, 224 F.3d 1281, 1283 (11th Cir. 2000).

25

not be subject to the 85% parole ineligibility term unless he

in fact used or threatened the use of that firearm. Jonson,

166 N.J. at 545-46, 766 A.2d at 1139. As noted, the

Supreme Court of New Jersey construed NERA as requiring

the jury, not the judge, to determine whether the crime was

violent.

The New Jersey Legislature’s response to the Johnson

decision was to rewrite NERA so that enumerated first- and

second degree offenses are NERA crimes subject to 85%

mandatory minimum sentencing, without regard to whether

the actor actually caused death or serious bodily injury,

whether the crime actually involved the use or threatened use

of a deadly weapon, or whether during any aggravated sexual

assault or sexual assault the actor actually used, or threatened

the immediate use of, physical force. N.J.Stat.Ann. § 2C:43-

7.2 (1997 N.J. Laws c. 117, § 2, eff. June 9, 1997, amended

by 2001 N.J. Laws c. 129, § 1, eff. June 29, 2001). The

sentencing courts’ discretion under NERA is now limited

solely to the maximum sentence imposed, within prescribed

statutory guidelines. It is convicted criminals who thus stand

to lose when sentencing courts are no longer authorized to

make individualized findings regarding the suitability of

mandatory minimum terms.

In sum, this Court should continue to “reject[] the claim

that whenever a State links the ‘severity of punishment’ to

‘the presence or absence of an identified fact’ the state must

prove that fact beyond a reasonable doubt.” McMillan, 477

U.S. at 84 (quoting Patterson v. New York, 432 U.S. 197,

214 (1977)). The McMillan rule is both viable and workable,

and has been relied upon by the States to imprison countless

criminal defendants. As a matter of practice, repudiation of

the McMillan rule will prejudice the defense, hamper the

prosecution, and unduly tax jurors. It will also cause a flood

of collateral petitions for relief in the state and federal courts.

McMillan is still good law, and the doctrine of stare decisis

weighs heavily against its reversal.

26

CONCLUSION

The amici States and Territories respectfully urge the

Court to affirm the judgment below.

Dated: February 22, 2002

Respectfully submitted,

DAVID SAMSON

Attorney General of New Jersey

Counsel for the amici states

LISA SARNOFF GOCHMAN

Deputy Attorney General

Counsel of Record