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January 30, 2007

The practical persistence of an offense/offender distinction after Cunningham

ImagesWhen first trying to make sense of Blakely, I was drawn to distinguishing between offense conduct and offender characteristics in the application of Apprendi's "bright-line rule."  I first developed this idea in my Conceptualizing Blakely article, advanced it in a Stanford Law Review article, and most recently unpacked it (with Stephanos Bibas) in Making Sentencing Sensible.  As explained in Conceptualizing Blakely, I believe an offense/offender distinction helps give conceptual content to the prior conviction exception, better links the Apprendi rule to the express text of the Constitution, and resonates with the distinctive institutional competencies of juries and judges.

Consequently, I was very pleased to see Justice Kennedy's opinion in Cunningham espousing this "principled rationale" for the application of the Apprendi rule: "The Court could distinguish between sentencing enhancements based on the nature of the offense, where the Apprendi principle would apply, and sentencing enhancements based on the nature of the offender, where it would not."  But, of course, I was less pleased that Justice Kennedy was writing in dissent and that footnote 14 of Justice Ginsburg's majority opinion asserts that "Apprendi itself ... leaves no room for the bifurcated approach Justice Kennedy proposes."

And yet, even though Cunningham seems to have rejected the offense/offender distinction as a formal part of Apprendi doctrine, I think the concept can and will persist as sentencing reform proposals and "second-generation" Blakely issues move forward.  Here are some reasons why:

1.  The "prior conviction" exception is still good law (and was repeated again in Cunningham).  Prior convictions are the classic example of "sentencing enhancements based on the nature of the offender," and they are still free from the Apprendi-Blakely rule.

2.  Many sentencing systems base enhancements on facts related to prior convictions (e.g., the defendant was on probation or parole), and most lower courts (though not all) have said that facts closely related to prior convictions are also not subject to the Apprendi-Blakely rule.

3.  Most offender facts distinct from prior convictions (e.g., whether the defendant cooperated, shows remorse, contributes to the community) tend to be mitigating factors put forward by the defendant.  Both formally (because they support sentence reductions) and practically (because they are admitted by the defendant), these sort of mitigating offender characteristics typically will not raise Blakely issues.

Thus, while Cunningham seems to have formally killed the offense/offender distinction as a part of Sixth Amendment doctrine, I expect the basic concept will have a phoenix-like revival in the practical application of most sentencing systems.

January 30, 2007 at 10:20 AM | Permalink


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The alternative is to view the prior conviction exception as a version of the judicial notice rule of evidence.

Facts that can be determined from court records such as prior convictions and probation or parole status are normally the sorts of evidence which a judge is well qualified to determine by judicial notice and which are not subject to reasonable dispute if documented by court records. The sort of notice that judicial notice will be taken provided in a pre-sentencing report usually suffices.

Posted by: ohwilleke | Jan 30, 2007 1:09:29 PM

Fair enough, ohwilleke, but what do we do if/when a defendant disputes the fact. I see the judicial notice idea as merging with the admission idea unless/until there is a doctrine saying a judge can take notice even of facts subject to dispute.

Posted by: Doug B. | Jan 30, 2007 1:44:45 PM

A subject’s prior offense is evidence that he or she repeatedly disregarded the law (discretionary belief) and should be condemned more harshly (public policy). A subject’s prior offense is also evidence that he or she may be dangerous (discretionary belief) and the state should incapacitate that person (public policy). The first is a response to the proposition that the subject committed a criminal offense (fact), or what you call offense conduct. The second is a response to the proposition that he or she is a criminal offender (self-evident inference concerning people who have committed a criminal offense), having what you refer to as offender characteristics.

Discretionary beliefs are what cognitive scientists call metarepresentations, which are second order representations of the threatening situation that underlies a sentence. Discretionary beliefs cannot be proven beyond a reasonable doubt, because they are discretionary representations of other representations, but they can be substantiated by a preponderance of evidence taken from the threatening situation.

The Apprendi line of cases is concerned with facts about the threatening situation, which are determinate, and not beliefs, which are discretionary representations of those facts. As Justice Stevens said in Booker and Justice Ginsburg repeated in Cunningham, “We have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a broad statutory range.”

Posted by: Tom McGee | Jan 30, 2007 4:50:20 PM

Doug, I completely agree with you that the offense/offender characteristic distinction is constitutionally based and that a legislature may use only offense characteristics in defining the "elements" of crime. (I know you dislike the term element, so we could use Scalia's notion of facts legally essential to support the level of punishment to which the defendant is exposed)

Where we disagree is what happens if a state legislature does use an offender characteristic as a fact, the finding of which increases the exposure of the defendant to punishment above the level allowed by the verdict or plea alone? Such as in North Carolina the aggravator that "the defendant does not support his children."

Is the Court powerless to say that the finding of the defendant is a deadbeat dad must be made by a jury since it increases the potential punishment the def faces? To say that there is an exception to the Apprendi Rule for offender characteristics seems to me to create an exception which swallows the Rule and harks back to McMillan v Penn, which got us into all this mess.

I think the Court has the power , and should exercise it, to say, as Justice Scalia said in Ring, " I don't care what you call it, an element, a sentencing factor , or Mary Jane,..." if it increases potential punishment above the level allowed by the jury verdict it is part of the definition of a crime.

Am I missing something in your position? I have always been puzzled by your notion that offender characteristics which increase the defendant's exposure to punishment above the prescribed statutory maximum should be considered the "second exception" to the Apprendi Rule.


Posted by: bruce cunningham | Jan 30, 2007 10:58:52 PM

There is no good way to explain the PC exception other than a political reality that will live forever. Stevens and Scalia needed to include it to get Thomas in 2000. And they'll never get rid of it because 1) as Stevens said, it doesn't seem that unjust; and 2) getting rid of it really would destroy determinate, guidelines-based sentencing. If you need a jury trial to determine everything about a defendant's criminal history, then the legislatures will dump these systems (which no one actually wants).

Posted by: Anon | Jan 30, 2007 11:05:06 PM

It has always bothered me that a judge will look at the presentence report facts underlying a prior conviction to increase a defendant's sentence based on Booker and 18 U.S.C. section 3661. These PSR facts are usually taken from a police report (for example, a prior domestic violence conviction may have a sentence in the PSR stating the defendant held a knife to a girlfriend's throat). While Apprendi, Booker, and now Cunningham have confirmed there is an exception in which the fact of a prior conviction does not have to be pleaded and proved to a jury, it is disturbing that the unreliable facts underlying the fact of a prior conviction are used by judges to increase sentences. I believe the Supreme Court in Shepard was addressing this when it said "While the disputed fact here can be described as a fact about a prior conviction, it is too far removed from the conclusive significance of a prior judicial record, and too much like the findings subject to Jones and Apprendi to say that Almendarez-Torres clearly authorizes a judge to resolve the dispute." Hopefully this is what Ginsburg was alluding to in her majority opinion in Cunningham. Defense attorneys need to continue to object to these increased sentences based on nothing more than police reports regurgitated in the PSR's.

Posted by: Cynthia Hahn | Jan 31, 2007 3:12:45 PM

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