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September 13, 2007

Should Crawford confrontation apply at capital sentencing?

In this recent post, I flagged a number of sentencing-related issues that are or could be coming before the Supreme Court this Term.  And, thanks to this post at SCOTUSblog, I see another lively issue related to death sentencing.  Here's a snippet from Lyle Denniston's report about a new cert petition:

The petition in Fields v. U.S. (07-6395, download here), filed Sept. 4 by the Capital Punishment Center at the University of Texas Law School, raises five issues, but the Confrontation Clause question is the central one.  It asks whether the Supreme Court's 2004 decision in Crawford v. Washington, limiting the use at trial of out-of-court testimony not subjected to cross-examination, has so altered constitutional understanding that it should be extended to sentencing. The dissenting judge in the Fields case, relying upon Crawford and recent developments in criminal sentencing, argued that, when a death sentence depends upon fact-finding, the facts should only be those "tested through confrontation."

Some related posts:

September 13, 2007 at 09:13 PM | Permalink


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Doug, thanks for the petition. I'll read it this weekend since I'm in a capital trial now and this issue may arise. Quickly, however, it is my view that Apprendi/Ring are also implicated in the question of what evidentiary or confrontation rules apply at "capital sentencing." I believe that the finding of one aggravator following a determination of guilt to first degree murder is no longer, after Ring, a "sentencing" determination. It is a conviction of a new and greater substantive crime called Capital First Degree Murder, or Aggravated First Degree Murder. Without that finding the defendant is not eligible for death, so that fact is an element of a new offense. For example, I believe, and have persuaded three judges in three trials to agree , that the Rules of Evidence apply to ag determination against the State but not mit determination against the defendant. The Rules of Evidence apply to trials but not to sentencing proceedings. Therefore, they apply to the determination of the Apprendi fact which increases the defendant's exposure to punishment from life to death as the Blakely maximum. (Cunningham v California)
After I read the petition I will respond more fully on the implications of Apprendi to the situation.

Posted by: bruce cunningham | Sep 14, 2007 7:43:35 AM

The Minnesota Court of Appeals just issued an Opinion which addresses this issue in the context of a Blakely sentencing jury. The Court of Appeals held that Crawford does not apply to this sentencing proceeding. The Opinion is available at: http://www.mncourts.gov/opinions/coa/current/opa060974-0911.htm.

It could be, though, that there is a confrontation right at Blakely sentencing jury proceedings as a result of a state court rule. The rule implies such a right by requiring the waiver of the right of confrontation as part of waiving a jury determination of aggravating factors.

Posted by: Michael C. Davis | Sep 14, 2007 9:50:59 PM

Michael, with all due respect, I would submit that there is no such thing as a "Blakely sentencing hearing." If a jury is involved in something as a matter of constitutional, rather than statutory, law, then what that something is, is a "criminal prosecution." Not a sentencing proceeding, to which there is no constitutional right to a jury. I think you are making the same mistake that Justice Breyer made in Ring v Arizona, to which Justice Scalia not so subtly said, "The unfortunate fact (for Justice Breyer) is that today's decision has nothing to do with jury sentencing." Justice Scalia then invited Breyer to buy a ticket to Apprendiland or get off the plane before the doors close.

I'm not being critical of you. I just believe that you are misperceiving what Apprendi is all about, which I think was most succinctly stated by Thomas in his Apprendi concurrence. It is about, "what is a crime."

bruce cunningham

Posted by: bruce cunningham | Sep 14, 2007 10:11:05 PM

doug, thanks for posting the cert petition in Fields. In addition to the confrontation clause claim, I think there is a much more subtle, and possibly productive, argument for the petitioner emanating from the basic premise underlying Apprendi and Ring. The question is whether Field is death eligible at all, given the fact that the two ags are "offender characteristics" and the other two ags are nonstatutory.

In my view, only an "offense characteristic" fact may, after Ring, serve as an Apprendi fact to convict the defendant of the greater offense of Capital First Degree Murder which exposes the def to a sentence of death. The two ags are that the def is an escapee and the def is a recidivist. Both of those have nothing to do with the defendant's conduct on the date of the offense. Therefore, in my opinion, while they can be used as sentencing factors to offset mitigators, they can not be used as an element of a substantive crime. The second ag, of recidivism is trickier than the first due to the precarious continued existence of Almendarez Torres and the prior conviction exception to the Apprendi Rule.

However, applying the reasoning of Brown v Ohio to the scenario, I don't see how the use of a prior conviction passes double jeopardy muster as an element of a crime. Because, by definition the proof of Aggravated First Degree Murder automatically proves the existence of the prior conviction, which makes them the same offense for fifth amendment purposes.

The other two ags are "nonstatutory " which I believe cannot be used as Apprendi facts, consistent with separation of powers. Suppose the only ag was the nonstat ag of future dangerousness. The legislature did not sanction the use of that fact as an element of a greater crime. The judiciary came up with that fact as an element of a crime. the judicial branch does not define crimes. only the legislature can do that. So, while those two nonstat ags can be used as sentencing factors, which do not make someone death eligible, they cannot be used as elements of crime. (this argument was given to me by a prosecutor who said he didn't see how he had constitutional authority to create "customized crimes" or crimes which may only apply to one person.

The confrontation claim , post Ring, seems easy to me. The finding of one ag is an element of a crime, therefore the confrontation clause applies.

the tricky question is whether the defendant should have been tried for his life at all.


Posted by: bruce cunningham | Sep 15, 2007 12:50:15 AM

Bruce, Apprendi-Ring-Booker/Fan-Fan-Blakely is about facts that increase the maximum punishment, for instance, converting the max sentence of life in prison to one of being killed. The elements of the crime are not the issue.

However, your conclusion is still correct. It's just that rather saying "one ag satisfies the element," we say "one ag increases the max punishment." The ags you describe (not sure if they are the ones Mr. Danforth was sentenced under because I didn't check) are fact-based. It would be hard to imagine an aggravator that wasn't.

Posted by: Matthew Byrne | Sep 15, 2007 3:14:51 AM

Matthew, thanks for the comments. I still think you are underestimating the scope of Apprendi when you characterize the issue as increasing the severity of punishment for a crime rather than increasing the severity of the crime, which carries a greater punishment. The Court is talking about two different crimes, not one crime whose punishment has increased.

How do you reconcile your statement with:

1)Justice Thomas' concurrence in Apprendi where he talks about grand larceny and petit larceny being analogous to the core crime and the aggravated crime?

2)Part III of Justice Scalia's opinion in Sattazahn where he talks about Murder Simpliciter and Murder with One Aggravating Factor being separate offenses.

3. Justice Stevens' dissent in Recuenco where he talks about lack of notice being the strongest argument the petitioner could have made.

4. Most importantly, how do you square your view that Apprendi is about punishment with Scalia's monumental statement in Blakely that the jury can't perform it's role as circuitbreaker in the state's machinery of justice if it is decision is a mere preliminary to a judicial inquisition into the facts of the crime the state actually seeks to punish?

In my view, Apprendi is only derivatively about sentencing. What the Court did was tell states that what they thought they were enacting was a sentencing statutue. In reality , what they were doing was enacting a hybrid statute, (see Souter's dissent in Rita) which encompasses both a statute enacting new substantive crimes and sentences associated with those crimes. These cases are really, in my view, simply a reaffirmation of Marbury v Madison's basic principle of judicial supremacy. As Scalia said in Ring, he doesn't care what the state calls something, call it Mary Jane, if it acts like an element (as you say,by increasing the state's entitlement to ask the judge for a greater sentence, ) it is an element of a greater crime. Not increased punishment for the same crime.

bruce c.

Posted by: bruce cunningham | Sep 15, 2007 7:28:39 AM

"The other two ags are 'nonstatutory' which I believe cannot be used as Apprendi facts, consistent with separation of powers."

Nonstatutory aggravators cannot establish death-eligibility under the federal death penalty statute. No need to resort to the Constitution.

I don't follow you as to why "offender characteristics" can't be used as the fact to convict of the greater offense of capital murder. As a matter of policy, that would be a very bad result. The purpose of Furman narrowing is to provide a reasonably objective means to separate the extra bad from the regular bad, and I can think of no better factor for that purpose than having killed more than once.

Posted by: Kent Scheidegger | Sep 15, 2007 9:16:57 PM

Kent, thanks for weighing in. I was hoping you would because I always find your contributions stimulating.

Offense characteristics are about what someone DOES on the date of the crime. They relate to conduct of the defendant which should be punished.

Offender characteristics are about who the person is, not what he has done. In the United States , we don't convict someone of a crime because of who they are. That is what the Bill of Attainder clause is all about. It is what Robinson v California is all about. (being an addict is not a crime, using illegal substances can be)

Crimes are related to prohibited conduct and are composed of "elements." I know Doug hates the term "element", but I think it is just shorthand to describe what Scalia and Thomas refer to as facts essential to support the level of punishment to which the defendant is exposed or entitles the prosecutor to ask the judge to impose a certain punishment.

Apprendi/Blakely/Ring have not abolished the element/sentencing factor distinction. It just said the legislature cannot trump the Constitution on which is which.

I think the fallout of Apprendi and Ring is that only offense characteristics, or conduct facts, can be used to determine the outer parameters of the potential punishment to which the def is exposed. Then both offender characteristics, and offense characteristics, can be used by a judge to determine the actual sentence within the range permitted by the punishment prescribed by the legislature.

Recidivism as a basis to increase sentence has passed double jeopardy scrutiny for over two hundred years because it is a status not an element of a crime. In addition to double jeopardy, the Fourth Circuit in US v Cheek last August set out four reasons why prior convictions are not elements of crime.

I know we differ on this but I think Murder with One Aggravating Factor is a greater substantive crime that Murder Simpliciter. I further believe that the differentiating element between those two crimes must be an offense characteristic, not an offender characteristic. Recidivism is the classic offender characteristic.

I'm not saying that recidivism does not have a role in deciding who actually RECEIVES death as opposed to who is ELIGIBLE for death. Prior convictions can be used to offset mitigators in the weighing process, they just can't be the sole basis to make a def death eligible.

Look at Lowenfield v Phelps and you'll see that prior convictions are in the second list of ags which are used to determine sentence, not the first list of ags which defines death eligibility.

Of course, the wrinkle in all this, as far as the offender characteristic of recidivism is concerned,. is Almendarez Torres, which Thomas, Souter, Ginsburg, Scalia and Stevens think was wrongly decided. But, take another offender characteristic, like the defendant doesn't support his children, which is a statutory aggravator in North Carolina for noncapital cases. I just don't see how a defendant not supporting his children can describe an element of a substantive offense.


Posted by: bruce cunningham | Sep 15, 2007 10:53:25 PM

"I know we differ on this but I think Murder with One Aggravating Factor is a greater substantive crime that Murder Simpliciter."

Actually, we don't differ on that.

"I further believe that the differentiating element between those two crimes must be an offense characteristic, not an offender characteristic."

We do differ on that. At the other end of the criminal scale, for example, petty theft is a misdemeanor in California, but petty theft with a prior is a greater offense, potentially a felony. Although status alone can't be punished, as you say, prior conviction can be an element of an offense. Such offenses have been on the books for many years. Extending the Apprendi line to strike down all these statutes would be a major extension. I very much doubt the Supremes will take it that far.

"Look at Lowenfield v Phelps and you'll see that prior convictions are in the second list of ags which are used to determine sentence, not the first list of ags which defines death eligibility."

That is a legislative decision. In California and some other states, prior conviction of murder is a death-eligibility circumstance. (And it should be at the top of the list, IMHO.)

Posted by: Kent Scheidegger | Sep 16, 2007 2:26:19 PM

Kent, how do you square your position that a prior conviction can be an element of a substantive offense, rather than a reason to enhance a sentence, with Brown v Ohio.? Brown says that a greater offense and a lesser offense are the same offense for double jeopardy purposes. If the proof of one offense automatically proves another offense they stand in the relationship of greater and lesser offenses.

Suppose, as in your example, a prior conviction is an element of felonious theft. The jury convicts someone of felonious theft. Doesn't that mean that they are also believe the def committed the offense underlying the prior conviction? Which means the prior conviction and felonious theft are the same offense under the Fifth Amendment. But, the defendant has already been punished for the prior offense. So, the DJ clause prohibits punishment for felonious larceny since the def has already been punished for the "same offense.'

I don't have a problem with California increasing someone's punishment if they commit misdemeanor larceny and they have a prior conviction. What I have a problem with is saying that the prior conviction is an element of a new, different, and greater offense of felonious larceny rather than misdemeanor larceny with the punishment increased due to recidivism.

Of course, it makes no difference to the defendant, practically speaking, if he is punished for felonious larceny or punished for misdemeanor larceny with an enhanced sentence to felony level. Unless, that conviction is used as a strike or trigger for an enhancement under the habitual felon, or three strike in california, statute. Then, it makes a huge difference.

The notion of a prior conviction being an element of a crime is at direct odds with the principle that a defendant's prior record cannot be introduced into evidence unless the def testifies. If the prior is an element, then in all cases where it is an element, the state is entitled to introduce it, regardless of whether the def testifies.


Posted by: bruce cunningham | Sep 16, 2007 3:43:19 PM

Kent, I forgot to mention. You said theft with a prior is "potentially" a felony. I think the folks in California refer to it as a "wobbler." I think the notion of "wobblers" which can be misdemeanors or felonies based on the judge's discretion, is unconstitutional, in violation of the equal protection, separation of powers and due process clauses. Only the legislature, in my opinion, can decide if something is a felony or a misdemeanor and that power cannot be delegated by the legislative branch to either the judicial branch or executive branch (prosecutor)bruce

Posted by: bruce cunningham | Sep 16, 2007 3:47:18 PM

Bruce, you are taking the kind of absolute approach to double jeopardy that extends it far beyond the kinds of abuses it was intended to prevent. See Justice O'Connor's concurrence in Garrett. The Court has done a lot of back and forth in this area, from Brown to Garrett to Grady to Dixon, so one cannot say with certainty where they will come down on this point. I don't think they will take it that far, though.

For one thing, when an element of the greater offense occurs later in time than the conviction of the lesser, double jeopardy does not preclude conviction for the greater. "One who insists that the music stop and the piper be paid at a particular point must at least have stopped dancing himself before he may seek such an accounting." Garrett, 471 US at 790.

Posted by: Kent Scheidegger | Sep 18, 2007 10:28:11 PM

Thanks, I'll read O'Connor's opinion in Garrett. bruce

Posted by: bruce cunningham | Sep 20, 2007 7:53:29 AM

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