Amicus Curiae Brief — Idaho v. Estrada (No. 06-1410)

S me Court, U.S.

A — FILED

No. 06-1410 MAY 2 4 2007

In The OFFICE OF THE CLERK |

Supreme Court of the Anited States

¢

IDAHO,

Petitioner,

vs.

KRISPEN ESTRADA,

Respondent.

4

On Petition For Writ Of Certiorari

To The Supreme Court of Idaho

¢

BRIEF OF AMICI CURIAE OF THE STATES

OF IOWA, ARKANSAS, COLORADO, MICHIGAN,

MINNESOTA, MONTANA, NEVADA,

NEW HAMPSHIRE, NORTH DAKOTA, TENNESSEE,

TEXAS, UTAH, VERMONT, AND WEST VIRGINIA,

AND THE COMMONWEALTH OF PUERTO RICO

IN SUPPORT OF THE PETITION

¢

TIIOMAS J. MILLER

Attorney General of Iowa

MARY TABOR

Assistant Attorney General

Counsel of Record

Hoover State Office Building

Des Moines, Iowa 50319

Telephone: (515) 281-5976

Fax: (515) 281-4902

E-mail: mtabor@ag.state.ia.us

Counsel for Amici Curiae States

| Additional Counsel Listed On Inside Cover]

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

DUSTIN MCDANIEL

Attorney General

State of Arkansas

DANIEL D. DOMENICO

Solicitor General

State of Colorado

MICHAEL A. Cox

Attorney General

State of Michigan

LORI SWANSON

Attorney General

State of Minnesota

MIKE MCGRATH

Attorney General

State of Montana

CATHERINE CORTEZ MASTO

Attorney General

State of Nevada

KELLY A. AYOTTE

Attorney General

State of New Hampshire

WAYNE STENEHJEM

Attorney General

State of North Dakota

SALVADOR ANTONNETTI

Solicitor General

Commonwealth of Puerto Rico

ROBERT E. COOPER, JR.

Attorney General

State of Tennessee

GREG ABBOTT

Attorney General

State of Texas

MARK L. SHURTLEFF

Attorney General

State of Utah

WILLIAM SORRELL

Attorney General

State of Vermont

DARRELL V. MCGRAW, JR.

Attorney General

State of West Virginia

QUESTION PRESENTED

May a sentencing court draw adverse inferences from

a defendant’s refusal to cooperate in a presentencing

evaluation without violating the Fifth Amendment privi-

lege against self-incrimination?

TABLE OF CONTENTS

Question Presented

Interest of Amici Curiae

Reasons for Granting the Petition

I. Expansive interpretations of Mitchell v. United

States leave convicted defendants with little

incentive to cooperate with court-ordered psy-

chosexual evaluations, curtailing the availabil-

ity of valuable information to assist sentencing

courts in reaching the appropriate disposition

for sexual offenders like Estrada

Because sentence-enhancing facts must be

found by the jury and not the sentencing judge

under the Sixth Amendment, an expansion of

the Fifth Amendment privilege at sentencing

is not necessary to protect defendants from

giving incriminating testimony about the

crime which could increase the maximum pen-

Conclusion

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Apprendi v. New Jersey, 530 U.S. 466 (2000)....4, 14, 16, 17

Blakely v. Washington, 542 U.S. 296 (2004)

Counselman v. Hitchcock, 142 U.S. 547 (1892)

Cunningham v. California, __ U.S. __, 127 S.Ct.

856 (2007)

Griffin v. California, 380 U.S. 609 (1965)

Lee v. Crouse, 451 F.3d 598 (10th Cir. 2006)

Mitchell v. United States, 526 U.S. 314 (1999)

Ring v. Arizona, 536 U.S. 584 (2002)

Roberts v. United States, 445 U.S. 552 (1980)

United States v. Booker, 543 U.S. 220 (2005)....4, 13, 15, 16

United States v. Zucker, 161 U.S. 475 (1896)

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

STATE CASES

Estrada v. State, 2005 WL 2436232 (Idaho App.

Estrada v. State, 149 P.3d 833 (Idaho 2006)....2, 3, 7, 10, 11

Hines v. State, 856 N.E.2d 1275 (Ind. App. 2006)

Lee v. State, 36 P.3d 1133 (Wyo. 2001)

State v. Blunt, 71 P.3d 657 (Wash. App. 2003)

State v. Muscari, 807 A.2d 407 (Vt. 2002)

lV

TABLE OF AUTHORITIES — Continued

Page

State v. Palmer, 608 N.W.2d 378, 2004 WL 240012

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State v. Thorkelson, 84 P.3d 854 (Utah App. 2004)............ 9

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Iowa Admin. Code § 201-38.4 (QS03B)..........ccccccccccecereceeeeeees 8

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TABLE OF AUTHORITIES -— Continued

OTHER AUTHORITIES

Anthony J. Phelps, Applicability of the Fifth

Amendment Privilege Against Self-Incrimination

at Sentencing: Mitchell v. United States Settles

the Conflict, 38 Brandeis L. J. 107 (1999-2000)

Daniel Macallair, The History of the Presentence

Investigation Report, Center on Juvenile and Crimi-

nal Justice (2002) www.cjcj.org/pubs/index.php, last

visited on May 7, 2007

Douglas A. Berman and Stephanos Bibas, Making

Sentencing Sensible, 4 Ohio St. J. Crim. L. 37

Kyron Huigens, Solving the Williams Puzzle, 105

Colum. L, Hav. 1048 (2006) .......ccosrcescorservveccerveccocoves

Madeline Carter, Kurt Bumby and Thomas Talbot,

Promoting Offender Accountability and Commu-

nity Safety through the Comprehensive Approach

to Sex Offender Management, 34 Seton Hall L.

Rev. 1273 (2004)

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

King, 5 Criminal Procedure § 26.4 (2007)

Page

prees 16

INTEREST OF THE AMICI CURIAE

The amici states, through their Attorneys General,

respectfully submit their brief in support of the petitioner.

The states have a substantial interest in ensuring the

accurate sentencing and rehabilitation of defendants

following their criminal convictions. To that end, presen-

tence investigation reports provide a central source of

information for sentencing judges and departments of

corrections. Moreover, psychosexual examinations are an

important tool in evaluating the ongoing risk and treat-

ment needs of sexual offenders. The states’ efforts in

gathering pertinent information about sexual offenders

would be hindered if other state appellate courts were to

follow the lead of the Idaho Supreme Court in broadly

interpreting the Fifth Amendment privilege against self-

incrimination to allow convicted sex offenders to refuse

participation in such evaluations without any worry that

the sentencing court may draw an adverse inference from

that refusal.

A defendant’s willingness to cooperate with presen-

tence investigators provides a good measure of whether he

or she will respond to rehabilitative efforts and pose no

further threat to society. Forcing a sentencing court to

turn a blind eye to a defendant’s lack of cooperation

diminishes the accuracy of sentencing determinations,

while not advancing the purposes of the Fifth Amendment

privilege.

State appellate courts have reached inconsistent

decisions whether sentencing courts may draw adverse

inferences from a convicted defendant’s silence at sentenc-

ing regarding matters other than the facts of the offense.

Such inconsistency leaves the states in doubt about their

ability to enforce court orders regarding participation in

psychosexual evaluations and other presentence investiga-

tions and to argue noncompliance as a factor in their

sentencing recommendations. A consistent and appropri-

ately narrow application of the Fifth Amendment in the

sentencing context is of great importance to the amici

states.

For these reasons, 15 states urge the Court to grant

certiorari and resolve this important question.

¢

REASONS FOR GRANTING THE PETITION

In Mitchell v. United States, 526 U.S. 314 (1999), the

Court expressly left open the question of whether the no-

adverse-inference rule applies at sentencing outside the

judicial fact-finding context. Lower courts, in addressing

that open question, have experienced the “decent period of

confusion” anticipated by the dissent. See Mitchell v.

United States, 526 U.S. at 340 (1999) (Scalia, J., dissent-

ing). Idaho’s petition should be granted to clarify the scope

of the Fifth Amendment privilege as applied to cooperation

with presentence investigations.

This Court has interpreted the Fifth Amendment as

prohibiting a trial court from drawing an adverse infer-

ence based on the defendant’s silence at the sentencing

hearing when determining facts about the crime which

bear upon the severity of the sentence. Mitchell v. United

States, 526 U.S. at 316-17. Although the Idaho Supreme

Court did not cite Mitchell in Estrada v. State, 149 P.3d

833 (Idaho 2006) decision, the state appellate court implic-

itly expanded the no-adverse-inference rule to shield a

convicted rapist from any consequences related to his refusal to

cooperate with a court-ordered psychosexual evaluation. Such

an expansive interpretation of Mitchell will deprive sentencing

courts of valuable information about convicted sex offenders

which can be gathered only through psychosexual evaluations.

The states advance two reasons for granting the

petition. The first reason is a practical one: an expansion

of the no-adverse-inference rule beyond the facts in

Mitchell will reduce the flow of information to sentencing

courts. The second reason is more theoretical: the renais-

sance of the Sixth Amendment jury trial right, whereby no

sentence-enhancing facts may be reserved for determina-

tion by the sentencing judge, should influence this Court’s

view of how broadly to apply the Fifth Amendment privi-

lege against self-incrimination at sentencing.

On the practical side, many state statutes now require

or permit courts to order convicted sex offenders to un-

dergo psychosexual evaluations before sentencing. These

evaluations provide much-needed insight into an of-

fender’s potential for recidivism, treatment amenability,

supervision concerns, potential risk issues and treatment

goals. If the reasoning in Estrada carries the day, con-

victed sex offenders have little incentive to submit to a

court-ordered evaluation. Courts could draw no inference

from their refusal, while submitting to the testing could

reveal damaging facts about their deviant sexual history.

Without access to the information obtained in psychosex-

ual evaluations, sentencing courts will reach less accurate

sentencing decisions. State courts have reached inconsis-

tent decisions when applying Mitchell’s no-adverse-

inference rule to presentencing issues. It is important to

the states that this Court enunciate a clear rule regarding

a sentencing court’s ability to consider a defendant’s non-

compliance with court-ordered presentence evaluations.

4

On the theoretical side, this Court should grant

review to consider whether recent case law reinvigorating

the Sixth Amendment jury trial guarantee also should

inform the Fifth Amendment self-incrimination analysis.

This Court’s Sixth Amendment jurisprudence has begun to

extricate elemental findings from the sentencing realm

and return them to be adjudicated by a jury at trial. See,

e.g., United States v. Booker, 543 U.S. 220 (2005) (manda-

tory use of federal sentencing guidelines violated right

to jury trial on any fact required to enhance a criminal

sentence); Apprendi v. New Jersey, 530 U.S. 466, 477

(2000) (holding that other than the fact of a prior convic-

tion, 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). This move to

restore the Sixth Amendment jury trial right requires

reexamination of the extension of the Fifth Amendment

right against self-incrimination into non-capital sentenc-

ing decisions.

This Court’s case law has “long recognized a natural

dichotomy between guilt and penalty phases.” Mitchell v.

United States, 526 U.S. at 338 (Scalia, J., dissenting).

Because many facts which increase the penalty for a crime

may not be determined at sentencing under the resur-

gence of the Sixth Amendment jury trial right, Fifth

Amendment self-incrimination concerns at sentencing are

greatly reduced. This Court should grant review to con-

sider the impact of Apprendi and its progeny on the

potential expansion of the no-adverse-inference rule of

Mitchell.

5

I. Expansive interpretations of Mitchell v. United

States leave convicted defendants with little

incentive to cooperate with court-ordered psy-

chosexual evaluations, curtailing the availabil-

ity of valuable information to assist sentencing

courts in reaching the appropriate disposition

for sexual offenders like Estrada.

The states have a keen interest in reducing sex crime

recidivism by imposing appropriate sentences and provid-

ing offenders with the most effective treatment and

supervision. To successfully manage sex offenders, “key

decision makers must have routine access to thorough,

reliable, and individualized assessment data, including

presentence investigations and psychosexual evaluations

conducted by specially trained sex offender management

professionals.” Madeline Carter, Kurt Bumby and Thomas

Talbot, Promoting Offender Accountability and Community

Safety through the Comprehensive Approach to Sex Of-

fender Management, 34 Seton Hall L. Rev. 1273, 1282

(2004). More generally, presentence investigation (PSI)

reports are “critical in assisting judges in rendering

sentencing decisions and providing vital information to

correctional officials in determining classifications and

release decisions” and “remain the most influential docu-

ment in the sentencing of criminal defendants.” Daniel

Macallair, The History of the Presentence Investigation

Report, Center on Juvenile and Criminal Justice (2002).’

More than 50 years ago, this Court endorsed the work

of presentence investigators and the value of their product

to accurate sentencing determinations:

* This article is available at www.cjcj.org/pubs/index. php, last visited

on May 7, 2007.

6

Under the practice of individualizing punish-

ments, investigation techniques have been given

an important role. Probation workers making re-

ports of their investigations have not been

trained to prosecute but to aid offenders. Their

reports have been given a high value by consci-

entious judges who want to sentence persons on

the best available information rather than on

guesswork and inadequate information. [] To de-

prive sentencing judges of this kind of informa-

tion would undermine modern penological

procedural policies that have been cautiously

adopted throughout the nation after careful con-

sideration and experimentation.

Williams v. New York, 337 U.S. 241, 250 (1949) (rejecting

argument that due process prohibited sentencing court

from considering information obtained outside the court-

room concerning “the convicted person’s past life, health,

habits, conduct, and mental and moral propensities”).

In preparation for sentencing Estrada on his rape

conviction, the Idaho district court ordered him to undergo

a psychosexual evaluation. Idaho state law requires

certain offenders to undergo a psychosexual evaluation

upon conviction if mandated by the court. The statute

provides:

If ordered by the court, an offender convicted of

any offense listed in section 18-8304, Idaho Code,

shall submit to an evaluation to be completed

and submitted to the court in the form of a writ-

ten report from a certified evaluator as defined in

section 18-8303, Idaho Code, for the court’s con-

sideration prior to sentencing and incarceration

or release on probation.

Idaho Code § 18-8316. Idaho state law defines a psycho-

sexual evaluation as “an evaluation which specifically

addresses sexual development, sexual deviancy, sexual

history and risk of reoffense as part of a comprehensive

evaluation of an offender.” Idaho Code § 18-8303(11).

The evaluation did not seek the defendant’s testimony

on any fact regarding the crime the State needed to prove

to increase his punishment. Rather, “[t]he information

provided in the evaluation allowed the district court to

make a more informed, appropriate sentencing decision

that best furthered the sentencing goals set forth in [Idaho

Code] § 19-2521.” Estrada v. State, 2005 WL 2436232

(Idaho App. 2005), reversed by Estrada v. State, 149 P.3d

833 (Idaho 2006).

When Estrada balked at being evaluated, his attorney

advised him to submit to the evaluation: “We would not

want the judge to consider your lack of cooperation to

mean that you are not willing to comply with court or-

ders.” That advice should have been considered sound. A

convicted sex offender’s refusal to comply with a court-

ordered evaluation may inform a sentencing court’s belief

that he did not accept responsibility for his offense, that he

posed a continuing danger to others or that he did not

show much promise for rehabilitation — all traditional,

legitimate sentencing considerations. See Roberts uv.

United States, 445 U.S. 552, 558 (1980) (“By declining to

cooperate, petitioner rejected an ‘obligatio[n] of community

life’ that should be recognized before rehabilitation can

begin.”).

However, the Idaho Supreme Court concluded that

counsel was ineffective for failing to advise the defendant

that he had a Fifth Amendment right to ignore the court

8

order without consequence at sentencing. Such an expan-

sive interpretation of the privilege against self-incrimination

compromises routine access to pertinent information about

the offender gathered by psychosexual evaluations and

compiled in presentence investigation reports. The likeli-

hood that convicted defendants will comply with court-

ordered testing is lessened by an appellate decision that

the Fifth Amendment allows defendants to snub such

evaluations without consequence.

Like Idaho, numerous state legislatures have adopted

statutes either requiring or allowing courts to order a

convicted offender to undergo a psychosexual or other

psychological evaluation to assist them in choosing the

appropriate sentence. See, e.g., Colo. Rev. Stat. § 16-11-102

(“the court, in cases that it deems appropriate, may

require the presentence report to include the findings and

results of a professionally conducted psychiatric examina-

tion of the defendant”); Iowa Admin. Code § 201-38.4

(903B) (“A psychosexual assessment shall be conducted on

all [serious sex] offenders, as a part of the presentence

investigation (PSI) prior to sentencing.”); Minn. Stat.

§ 609.3457 (“When a person is convicted of a sex offense,

the court shall order an independent professional assess-

ment of the offender’s need for sex offender treatment to

be completed before sentencing.”); Mont. Code § 46-18-111

(requiring presentence investigation for sex crimes to

include “psychosexual evaluation of the defendant and a

recommendation as to treatment of the defendant in the

least restrictive environment, considering the risk the

defendant presents to the community and the defendant’s

needs”); Nev. Rev. Stat. § 176.139 (“If a defendant is

convicted of a sexual offense for which the suspension of

sentence or the granting of probation is permitted, the

9

division shall arrange for a psychosexual evaluation of the

defendant as part of the division’s presentence investiga-

tion and report to the court.”); S.D. Codified Laws § 22-22-

1.3 (person convicted of a sex crime “shall have included in

the offender’s presentence investigation report a psycho-

sexual assessment including the following information: the

offender’s sexual history; an identification of precursor

activities to sexual offending; intellectual, adaptive and

academic functioning; social and emotional functioning;

previous legal history; previous treatment history; victim

selection and age; risk to the community; and treatment

options recommended”); Tenn. Code Ann. § 39-13-704(2)

(establishing “sex offender treatment board” which deter-

mined that psychosexual evaluations are useful tools in

the treatment and evaluation of sex offenders); Vt. Stat.

tit. 13 § 5405 (“The court shall order a presentence inves-

tigation which shall include a psychosexual evaluation of

the offender.”); Wash. Rev. Code § 9.944.505 (legislature

authorized trial court discretion to order psychosexual

evaluations).

States without a specific statute authorizing psycho-

sexual evaluations have interpreted their presentence

investigation statutes as allowing a court to order such an

evaluation. See, e.g., Hines v. State, 856 N.E.2d 1275, 1278

n.2 (Ind. App. 2006) (interpreting Indiana Code § 35-38-1-

9); State v. Thorkelson, 84 P.3d 854, 857 (Utah App. 2004)

(“while a psychosexual evaluation may be useful in sen-

tencing, it is not mandatory”).

Despite these legislative efforts to provide sentencing

courts and corrections officials with more accurate infor-

mation about sexual offenders’ placement and treatment

needs, questions about the breadth of Mitchell’s no-

adverse-inference rule leave states with an uncomfortable

10

uncertainty. It is unclear whether courts may enforce their

orders for evaluations. It is unclear whether defense

attorneys may advise their clients to cooperate with

psychosexual evaluations. It is unclear whether prosecu-

tors may urge courts to consider noncompliance for its

relevance to a defendant’s failure to accept responsibility,

future dangerousness, lack of remorse or similar sentenc-

ing factors.

Emblematic of the uncertainty are the contradictory

conclusions regarding the reach of the Fifth Amendment

privilege adopted by appellate courts in the neighboring

states of Idaho and Wyoming. As it now stands, sentencing

courts in Wyoming may consider a convicted defendant’s

refusal to submit to a psychological evaluation in deter-

mining the appropriate penalty (Lee v. State, 36 P.3d 1133

(Wyo. 2001), but sentencing courts in Idaho may not

(Estrada v. State, 149 P.3d 833 (Idaho 2006)). The Wyo-

ming Supreme Court held: “A defendant’s failure to coop-

erate in the PSI is certainly a valid factor for a trial court

to consider in contemplating the appropriate sentence.”

Lee v. State, 36 P.3d at 1141.’ In reviewing this state court

decision on habeas, the Tenth Circuit noted: “it remains

unanswered by the Supreme Court whether a sentencing

court in a non-capital case may, for purposes other than

determining the facts. of the offense of conviction, draw an

adverse inference from a criminal defendant’s refusal to

testify or cooperate.” ive v. Crouse, 451 F.3d 598, 605 (10th

* Other state courts have reached similar post-Mitchell decisions.

See, e.g., State v. Palmer, 608 N.W.2d 378, 2004 WL 240012 (Iowa Ct.

App. 2004); State v. Muscari, 807 A.2d 407, 416 (Vt. 2002); State v.

Blunt, 71 P.3d 657, 662 (Wash. App. 2003) (sentencing court did not

violate Fifth Amendment in noting defendant’s failure to challenge

State’s proof of prior convictions).

11

Cir. 2006). The federal court therefore concluded that the

Wyoming court’s decision was not contrary to or an unrea-

sonable application of clearly established federal law. Id.

at 606.

The lack of clearly established federal law on this

issue calls for resolution by this Court. The states need a

definitive answer whether the privilege against self-

incrimination allows defendants to skip court-ordered

evaluations without suffering any consequence for -their

recalcitrance. The states’ efforts to provide sentencing courts

with the best possible information about sexual offenders

will be thwarted by the continuing uncertainty posed by

cases like Estrada.

Il. Because sentence-enhancing facts must be

found by the jury and not the sentencing judge

under the Sixth Amendment, an expansion of

the Fifth Amendment privilege at sentencing is

not necessary to protect defendants from giv-

ing incriminating testimony about the crime

which could increase the maximum penalty.

In delivering the majority opinion in Mitchell v.

United States, Justice Kennedy acknowledged: “It is true,

as a general rule, that where there can be no further

incrimination, there is no basis for assertion of the privi-

lege.” Mitchell v. United States, 526 U.S. 314, 326 (1999).

The majority reasoned, however, that “[wlhere the sen-

tence has not yet been imposed a defendant may have a

legitimate fear of adverse consequences from further

testimony.” Jd. In Mitchell, the “further testimony” sought

from the defendant at sentencing involved the quantity of

drugs she conspired to distribute. Jd. at 320.

12

The Mitchell Court rejected the government’s argu-

ment that the district court was entitled, based on her

silence, to draw an adverse inference with regard to the

amount of drugs attributable to her. Jd. at 329. The Court

then cited Griffin v. California, 380 U.S. 609 (1965) for the

proposition that “in a criminal case ... no negative infer-

ence from the defendant’s failure to testify is permitted.”

Id. The Court declined to adopt an exception for “the

sentencing phase of a criminal case with regard to factual

determinations respecting the circumstances and details of

the crime.” Jd.

Justice Kennedy, however, emphasized the narrow-

ness of Mitchell’s holding:

Whether silence bears upon the determination of

a lack of remorse, or upon acceptance of respon-

sibility for purposes of the downward departure

in [the federal sentencing guidelines] is a sepa-

rate question. It is not before us, and we express

no view on it.

Id. at 330.

Commentators have concluded that “[b]y limiting its

opinion to inferences about facts alone, the Court left open

the possibility that a valid assertion of the privilege could

be considered for some purposes (assessing the defendant’s

character or willingness to cooperate, for example), but not

other purposes (assessing the existence of particular

historical facts relevant to sentence).” Wayne R. LaFave,

Jerold H. Israel and Nancy J. King, 5 Criminal Procedure

§ 26.4 (2007); see also Anthony J. Phelps, Applicability of

the Fifth Amendment Privilege Against Self-Incrimination

at Sentencing: Mitchell v. United States Settles the Con-

flict, 38 Brandeis L. J. 107, 128 (1999-2000) (“The Court’s

13

holding still allows a court’s broad query into sentencing-

related matters; it simply requires prosecutors to bear the

burden of establishing essential sentencing-based facts,

thereby preventing defendants from becoming witnesses

against themselves.”).

The Mitchell Court’s holding that the Fifth Amend-

ment prevents the government from relying on a convicted

defendant’s silence at sentencing to prove additional facts

about the crime which could elevate the punishment

predated significant changes in Sixth Amendment juris-

prudence which limit the type of facts which may be left to

a sentencing judge. A year after issuing Mitchell, this

Court decided Apprendi v. New Jersey, 530 U.S. 466, 490

(2000), holding that other than the fact of a prior convic-

tion, 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 ushered in a line of cases strengthening the

Sixth Amendment jury trial right. In Ring v. Arizona, 536

U.S. 584, 610 (2002), this Court expanded Apprendi’s

reach by holding that capital defendants are “entitled to a

jury determination of any fact on which the legislature

conditions an increase in their maximum punishment.” In

Blakely v. Washington, 542 U.S. 296, 303 (2004), this

Court clarified that the “statutory maximum” for Apprendi

purposes is the maximum sentence a judge may impose

solely on the basis of the facts reflected in the jury verdict

or admitted by the defendant. In United States v. Booker,

543 U.S. 220 (2005), this Court declared that the manda-

tory use of federal sentencing guidelines violated the right

to jury trial on any fact required to enhance a criminal

sentence. Finally, in Cunningham v. California, __ U.S.

__, 127 S. Ct. 856 (2007), this Court found that California’s

14

determinate sentencing law violated the Sixth Amend-

ment, as understood in Apprendi, by granting the judge

rather than the jury the power to find facts which raise

the maximum lawful sentence.

In the wake of Apprendi and its progeny, a question

arises whether the new constitutional rules for modern

sentencing schemes should include an expansive reading

of the Fifth Amendment privilege against self incrimina-

tion. Justice Kennedys reasoning for the majority in

Mitchell suggested a dichotomy between factual determi-

nations respecting the circumstances and details of the

crime and factors exhibited by the defendant, such as

acceptance of responsibility or lack of remorse. Mitchell v.

United States, 526 U.S. at 330.° Now that facts essential to

the punishment must be determined by the jury’s verdict

alone, the Mitcheli majority’s concern about a convicted

defendant’s risk of giving incriminating testimony before

the sentencing judge is abated.

This Court has interpreted the Fifth Amendment

guarantee that no person be compelled in “any criminal

case” to be a witness against himself as broader than the

Sixth Amendment guarantee of a jury trial “in all criminal

prosecutions.” See Counselman v. Hitchcock, 142 U.S. 547,

563 (1892). However, the Fifth Amendment’s object is “to

* The majority in Cunningham rejected Justice Kennedy's distinc-

tion between facts concerning the offense and facts concerning the

offender for jury trial purposes. Cunningham v. California, 127 S. Ct. at

869 n.14.

* In his Mitchell dissent, Justice Scalia did not adhere to the

Counselman observation, instead asserting that the phrase “in all

criminal prosecutions” from the Sixth Amendment was “indistinguish-

able” from the “in any criminal case” terminology in the Fifth Amend-

ment. Mitchell v. United States, 526 U.S. at 338 (Scalia, J., dissenting).

15

insure that a person should not be compelled, when acting

as a witness in any investigation, to give testimony which

might tend to show that he himself had committed a

crime.” See United States v. Zucker, 161 U.S. 475, 482

(1896). Thus, testimony about facts of the crime or the

government’s attempt to use the offender’s silence to “infer

commission of disputed criminal acts,” even at sentencing,

would implicate the Fifth Amendment. See Mitchell, 526

U.S. at 329. On the contrary, the results of an offender’s

psychosexual evaluation, or the use of the offender’s

refusal to submit to an evaluation to infer he is not ame-

nable to treatment, would not implicate the Fifth Amend-

ment. Where the fact considered by the sentencing court

does not increase the punishment beyond its statutory

maximum, the defendant would have neither a jury trial

right under the Sixth Amendment nor would he be com-

pelled to be a witness against himself under the Fifth

Amendment.

In United States v. Booker, 543 U.S. at 233, this Court

reiterated that the Sixth Amendment permits only the

jury to find those facts which have fixed and predictable

sentencing consequences, but also recognized that judges

may consider factors not adjudicated at trial when making

discretionary sentencing decisions. See Douglas A. Berman

and Stephanos Bibas, Making Sentencing Sensible, 4 Ohio

St. J. Crim. L. 37, 57-58 (2006). Professors Berman and

Bibas describe this fact/judgment distinction as follows:

“Booker safeguards the notion of sentencing as a distinct

criminal justice enterprise that requires the exercise of

reasoned judgment, not just offense fact-finding.” Jd. at 58.

This distinct enterprise of sentencing and the role of

judicial discretion in reaching a “more enlightened and

just sentence” was recognized in Williams v. New York, 337

16

U.S. 241, 251 (1949). In Booker, this Court cited Williams

right beside Apprendi to support the statement: “We have

never doubted the authority of a judge to exercise broad

discretion in imposing a sentence within a statutory

range.” United States v. Booker, 543 U.S. at 233. As such,

Apprendi’s limit on judicial fact-finding at sentencing

under the Sixth Amendment did not undermine Williams’

approval of discretionary sentencing against a due process

challenge. Kyron Huigens, Solving the Williams Puzzle,

105 Colum. L. Rev. 1048, 1056 (2005). Sentencing judges

will be less able to carry out their specialized role if they

are prohibited under the Fifth Amendment from consider-

ing a defendant’s failure to cooperate with presentencing

evaluations, a fact not reserved for the jury under Ap-

prendi.

Under the regime started in Apprendi, fewer “factual

determinations respecting the circumstances and details of

the crime” are left to the sentencing court. As such, sen-

tencing courts are focused on traditional factors influenc-

ing what penalty to assign based on the characteristics of

a particular defendant, such as acceptance of responsibil-

ity, lack of remorse, risk of re-offending and amenability to

rehabilitation. A defendant’s decision whether to comply

with a psychosexual evaluation or other aspects of the

presentencing investigation bears on these traditional

sentencing factors. Ordering the defendant to submit to a

psychosexual evaluation does not compel him to be a

witness against himself in a criminal case. It compels him

to reveal facts about himself which are independent of the

crime already adjudicated and useful to the discretionary

assessment entrusted to the sentencing judge.

The reinvigoration of the jury trial right in criminal

prosecutions allays the concern underlying Mitchell that a

17

defendant’s decision to remain silent about a fact of the

offense which the government sought to prove at sentenc-

ing should not give rise to an adverse inference by the

sentencing court. The Idaho Supreme Court’s decision

failed to recognize the impact of Apprendi on the scope of

the privilege against self-incrimination at sentencing.

Granting the petition would provide this Court an oppor-

tunity to consider the interplay between Fifth Amendment

and Sixth Amendment case law governing sentencing

jurisprudence.

CONCLUSION

For these reasons, the amici curiae states respectfully

request that the petition for writ of certiorari be granted.

Respectfully submitted,

THOMAS J. MILLER

Attorney General of lowa

MARY TABOR

Assistant Attorney General

*Counsel of Record

Hoover State Office Building

Des Moines, lowa 50319

May 24, 2007 515-281-5976