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July 1, 2009

"Should Juries Be the Guide for Adventures Through Apprendi-Land?"

In this post a few weeks ago, I spotlighted the publication of this great new article by W. David Ball in the June 2009 issue of the Columbia Law Review, titled "Heinous, Atrocious, and Cruel: Apprendi, Indeterminate Sentencing, and the Meaning of Punishment."   I was honored to have been asked by the CLR folks to write a response to Ball's piece in the CLR's great Sidebar section, and my piece is now available in pdf form at this link.  My little article carries the same title as this post, and here is how it starts:

David Ball’s article, Heinous, Atrocious, and Cruel: Apprendi, Indeterminate Sentencing, and the Meaning of Punishment, merits a place on any top ten list of must-read pieces concerning the Supreme Court’s modern sentencing jurisprudence.  Ball’s article is valuable not only for its fresh conceptual and functional perspectives on this jurisprudence, but also for its exploration of new and important regions of the sentencing universe.  In particular, Ball’s take on the Supreme Court’s work in Apprendi v. New Jersey and its progeny is a major contribution because, as he adventures through what Justice Scalia once called “Apprendi-land,” he spotlights what this jurisprudential terrain could mean for parole decisionmaking, especially in California.

It is a pleasure to travel with Ball as he seeks to better understand the topography of Apprendi-land.  I fear, however, that Ball’s impressive work places undue emphasis on a particular vision of juries which, while perhaps conceptually appealing, is functionally problematic.  I am also troubled that, like other commentators and even many Justices, Ball allows an undue affinity for jury trial rights to dominate his view of Apprendi-land.  I believe Ball and others should focus much greater attention on constitutional concepts other than the jury in their efforts to articulate and advance sound procedural rules for modern sentencing decisionmaking.

July 1, 2009 at 09:58 PM | Permalink


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"Jurors can hardly serve as community representatives
making retributivist judgments when we treat them like moral
mushrooms and keep them in the dark about the true import and
impact of the facts they find."

Great line, and "moral mushrooms" could be as good as "bleeding heart liberal." The "liberal" in "bleeding heart liberal" has a more direct target, however. I suspect the media is mostly to blame for "moral mushrooms" because it controls what juries do or do not know of their power. Media, overall, is "Remember OJ!" as if that trial was the Alamo. But I must question if death penalty juries really "reflect community sentiments" since they are a biased subset of the overall community sentiments (in favor of the DP). That is more or less an aside to your central point but it does matter.

The overall question is likely moot, however, since California recently voted to further restrict hearing rights of parolees (Prop 9) though I believe the court overturned it in part on Constitutional grounds by now. In any event, there will not be a law in the near future permitting jury trials for parole hearings though it would be a good idea because it would take the media politics (Nielsen ratings) out of the equation.

The media's first amendment rights will smother all the others if we let it because neither politicians nor the media care if the laws they support are constitutional. They get votes and sell papers.

Interesting debate and thanks for posting the link.

Posted by: George | Jul 2, 2009 3:47:43 AM

A lawyer should declare conflict of interest in a footnote, at least. "Disclosure of Conflict of Interest and Financial Interest: This paper proposes a marked increase of procedure. The latter will increase lawyer jobs and costs to the public. As of its printing, there are no data showing the proposal will served any of the aims of the criminal law."

Posted by: Supremacy Claus | Jul 2, 2009 8:31:48 AM

How can it be problematic that has an "affinity for jury trial rights" which "dominate[s] his view of Apprendi-land"? THAT'S WHAT THE CASE WAS ABOUT! It means nothing more and nothing less than that. It was not some grand attack on determinate sentencing. It was not a clarion call for more judicial power in sentencing. None of that was made possible until the remedy decision in Booker, which was the handiwork of Apprendi haters (a.k.a. jury skeptics). Apprendi was about juries and the democratic control of sentencing. The intellectual opportunism for which Apprendi has been used to advance the policy goals of certain judges and academics is disgusting. And it cheapens what, in my view, is one of the greatest civil liberties decision in Supreme Court history.

Posted by: anon | Jul 2, 2009 9:16:17 AM

anon: if/when you read the full linked article, you may better understand my point about Apprendi. This paragraph is the set up to the full discussion:

"[T]he Supreme Court’s modern sentencing jurisprudence, which was formalized in Apprendi and supersized in Blakely v. Washington, has roots in constitutional provisions and concerns beyond just the Sixth Amendment’s jury trial right. Specifically, the Due Process Clause and the notice provisions of the Sixth Amendment initially played an important and foundational role in the Supreme Court’s efforts in this line of cases. Unfortunately, the Supreme Court’s post-Apprendi rulings—as well as analyses and criticisms of the Court’s jurisprudence like Ball’s article—have been almost exclusively concerned with the reach and limits of jury trial rights."

I share you basic view, anon, about the "greatness" of Apprendi, but that's because it dealt with MORE than just a right to a jury trial. As my brief article seeks to highlight, I think Apprendi has been cheapened in large part because its other parts have been ignored.

Posted by: Doug B. | Jul 2, 2009 10:16:07 AM

A criminal offense is a crime that has one or more bad attributes. If a crime has no cognizable bad attributes it is a strict liability crime.

The New Jersey legislature described the questioned criminal offense in two different ways by statute, depending on its attributes; those attributes could not become known until after the fact. Possession of a gun for an unlawful purpose, a third-degree offense, was accompanied by a punishment warning of 3 to 5 years in prison. Possession of a gun for an unlawful and biased purpose, a second-degree offense, was accompanied by a punishment warning of 5 to 10 years in prison. Each of these descriptions also contained the same elements, which constituted a crime, but the Legislature did not define that crime or threaten a penalty.

Apprendi was charged with possession of a gun for an unlawful purpose and found guilty by a jury. Of course, this means that he was found to have committed a crime, which was the posited part of that criminal offense. (Crime is a classical concept; offense is a relational concept.) Then the trial judge found that he also possessed that gun for a biased purpose.

Penalties are set before the fact as a threat, but enforced after it is determined that the person committed a crime. Punishments are set after the fact within a range that was established before the fact as a punishment warning. The court did not distinguish between these two ways of thinking about Appreni’s conduct. It held as follows: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maxim must be submitted to a jury, and proved beyond a reasonable doubt.” Statutory maxima are applicable to criminal offenses only. The court mixed up two of the ways of thinking about Apprendi’s conduct; namely, as a crime and criminal offense. The Legislature did not fix a specific penalty; it didn’t even define the crime.

Apparently the court sensed that there was a third way to think about Apprenti’s conduct; namely, he was a criminal offender who potentially had a risk of committing another crime/criminal offense. In their ruling the court made an exception for prior convictions, which may be evidence of an unacceptable risk. But they did not touch the risk issue.

Needless to say, Doug, I do no join you as an Apprendi fan.

Posted by: Tom McGee | Jul 2, 2009 1:24:06 PM

Doug, I would be curious how you reconcile your statement in the article, "Moreover, capital jurors are not merely asked to find whether a capital defendant is factually guilty, they also decide whether a guilty defendant should be sentenced to death for his crimes" with Justice Scalia's statements in Ring that "..today's judgment has nothing to do with jury sentencing" and "state which leave the ultimate decision of life and death to the judge may continue to do so.."

In my view, any role that a jury plays in capital sentencing is purely statutory and Scalia went out of his way to say Ring did not nullify the practice in a half dozen states that the judge makes the life or death decision.

I believe Apprendi is about what Justice Thomas says it is about, which is "what is a crime" rather than giving juries a constitutional role to play in sentencing persons convicted of crimes.

bruce cunningham

Posted by: bruce cunningham | Jul 3, 2009 3:16:47 PM

Bruce, as you know, even in those states with judge-imposed death sentences, juries usually get an advisory role at sentencing. You are right that this is a role ensured by statute, though it is not clear that a majority of Justices agree with Justice Scalia's statement in Ring that jury involvement in death sentences is not also constitutionally commanded.

More broadly, my comments in this commentary were not intended to articulate a particular constitutional theory of the Sixth Amendment, but rather were seeking merely to spotlight that, as a descriptive matter, Ball's vision of the jury finds much better expression in modern death penalty schemes than they now find (or likely will even find) in modern non-capital sentencing systems.

Posted by: Doug B. | Jul 4, 2009 8:07:55 AM

Doug, thanks for the comments. We share the view that Apprendi implicates much more than the right to a jury trial to determine facts affecting punishment. I think we differ on how we get to that point. My view is that Apprendi is only about how crimes are defined and I think you see Apprendi as giving the jury a constitutional role to play in sentencing. bruce

Posted by: bruce cunningham | Jul 4, 2009 8:54:35 AM

off the subject, I think your second amendment view on the right of convicted felons to possess firearms under certain limited circumstances will ultimately prevail. Gaffney, South Carolina is currently undergoing a difficult period dealing with a serial killer who has killed four people in the last week or so. Yesterday the Sheriff advised the citizens that they have the right to protect themselves if confronted with an intruder. It is inconceivable to me that Martha Stewart is not included in the group of people who have forever forfeited their right to have a handgun in the bedside table to protect herself from a serial killer. bruce

Posted by: bruce cunningham | Jul 4, 2009 9:01:04 AM

too many negatives in the last sentence. Martha Stewart should be able to defend herself.

Posted by: bruce cunningham | Jul 4, 2009 9:03:28 AM

Bruce, I certainly agree. Apprendi is about what constitutes a crime, but it is also about the role of juries. The facts that constitute a crime are its elements. Legislators posit those facts. A crime is nothing more or less.

If you think of robbery as a crime, all robberies are the same, because they have the same elements. But if you think of robbery as a criminal offense (conceptual combination), all robberies are the same, as to their elements, but different as to their attributes. Crimes can be proven beyond a reasonable doubt, because they have clearly defined boundaries. Offenses have fuzzy boundaries, because they are highly variable. They cannot be proven beyond a reasonable doubt, but can be proven by a preponderance of the evidence.

These two ways of thinking about the same things are described by Steven Pinker in his book, Words and Rules. Concepts, such as what constitutes an offense, cannot be defined, but can be described, as they were in Apprendi. Cognitive scientists offer many examples of concepts like this, such as “game” and so on.

So we frame the problem first as a crime, and then as a criminal offense, a serial thought process. Apprendi did not make this distinction. As a result the court expanded the role that juries may play, beyond what was set forth in Winship, to encompass the attributes of crimes, or what are called sentencing considerations. Now what about the evidence standard?

Posted by: Tom McGee | Jul 4, 2009 1:02:55 PM

thanks for the comments, Tom. I'll ask you the same question I asked Doug. How do you reconcile your position with Scalia's statement in Ring that Ring had nothing to do with jury sentencing, regardless of what Justice Breyer said?

Are you saying that the Constitution, specificallythe Sixth Amendment gives juries a role in deciding what sentence a defendant receives? That is a pretty radical position.

bruce cunningham

Posted by: bruce cunningham | Jul 4, 2009 2:07:59 PM

Tom, also what do you say to State v Martinez, the Arizona case that says once the jury finds beyond a reasonable doubt one aggravating factor, which increases the potential punishment to include death, a judge can decide the rest of the aggravators? The first ag is an element of the crime of aggravated first degree murder and the ags thereafter are pure sentencing factors, which can be found without a jury. In other words, there is only one Apprendi fact per case.

Posted by: bruce cunningham | Jul 4, 2009 2:13:58 PM

Bruce, I don’t think that Scalia fully understands the problem. That is clear to me from the language he uses, where he mixes up crimes and offenses. There are lots of offenses that have nothing to do with crimes. Most crimes have bad attributes and should also be thought of as criminal offenses. Cognitive scientists tell us that people make better decisions when they think of problems in more than one way. That way we access more information and respond accordingly. Scalia seems to have a one-track mind.

I surely don’t believe that the Constitution gives juries a role in sentencing. State v. Martinez is just plain weird.

Posted by: Tom McGee | Jul 4, 2009 5:17:13 PM

Tom, Martinez is perfectly consistent with the notion that the Constitution gives the jury no role to play in sentencing. The jury convicts of the offense of capital murder and then its only role is statutory.

Your crime/offense dichotomy, it sounds like to me, is basically what Doug has been calling the offense/offender characteristic dichotomy. Or the element/sentencing factor distinction that started getting us off track in McMillan v Penn. (when, contrary to Marbury v Madison the Penn legislature said they could decide what is an element of a crime and what is not)

I don't have a problem with this kind of distinction and that the Constitution requires only a jury to decide if someone committed a crime and either a judge or statutorily the jury can decide the "offense" and set an appropriate punishment.

Are you a criminal trial lawyer or appellate lawyer? I think I understand the distinction you are trying to draw, but there is no precedent in the law for a crime/criminal offense dichotomy.

I also think Scalia is absolutely on the money, together with Thomas, Souter, Stevens and ginsburg. Breyer doesn't have a clue what Apprendi is about, he thinks it has something to do with the Eighth Amendment and Alito, and Kennedy elevate efficiency above principle. Roberts, to his credit, came on board the Apprendi train in Cunningham v California, due to stare decisis probably,not due to his preference.

bruce cunningham

Posted by: bruce cunningham | Jul 4, 2009 6:10:24 PM

Tom , I forgot to mention that you are absolutely right that Scalia has a one track mind. The track is what did the founders do. Not what they meant to do or intended to do, but what does the document say. The latest example of Scalia's adherence to original principles, to the delight of us defense lawyers, is last week's Melendez-Diaz opinion about confrontation. He doesn't care if it is efficient to use a lab report in evidence instead of the analyst, if it is not what the practice was at the founding, it is unconstitutional. Scalia has become our hero, in some respects. For example, one of the first things he said at the Blakely oral argument was, "It seems to me the question presented is whether the Washington state sentencing statute , or the Sixth Amendment, is unconstitutional" Brought the house down.

bruce cunningham

Posted by: bruce cunningham | Jul 4, 2009 6:16:14 PM

I believe the deprivation decision-making process starts with a jeopardy argument. It is this argument that puts a person in jeopardy. Its priming premise is that the person in question committed a crime. Its base premise is that the person committed a criminal offense. Its conclusion is that the person is a criminal offender with a significant risk of committing another crime/criminal offense. This argument is the foundation of a decision-making process. Decision-makers respond to each of these provocations by pursuing differentiated objectives, strategies and tactics. Some of these responses are determinate; others are indeterminate. Some are mandatory; others are discretionary.

Unfortunately, policy-makers often take one or more of these trains-of-thought off the table. Opportunists step in and sentencing double-talk is the result. They say that they are pursuing one objective, but really seek another. Deprivation inflation is the result. Everything should be on the table in every case. Each objective should be made to compete with all the others for the limited resources available.

Posted by: Tom McGee | Jul 4, 2009 8:36:42 PM

Tom, I think you would enjoy reading Scalia's opinion in Melendez. Sounds to me like you are advocating for policy decisions that are not encompassed within the fundamental principles of the Constitution. As Scalia says, just because a policy sounds good does not give the Court the liberty to substitute the better policy for the system established by the founders. As he said in Blakely, "the jury trial system may not be efficient, but it has always been free." Similarly, the majority in Melendez rejected the dissent's concern about efficiency in the confrontation context.

Thanks for the stimulating conversation.


Posted by: bruce cunningham | Jul 4, 2009 9:55:06 PM

Thanks to you too Bruce. I forgot to answer your question. I am a long time correctional administrator. Of course, correctional people make many more deprivation decisions in a given case than do judges. I am interested in this subject because if the judiciary does not get the front end of the process right in each case, it echoes through the system, sometimes for years. Correctional people try to compensate, but in a very unregulated way. That is one reason why everything should be on the table from the start, and answered one way or the other. Transparency is absolutely essential. Thanks again.

Posted by: Tom McGee | Jul 4, 2009 11:15:29 PM

Bruce, I have just one more comment about our discussion yesterday. You said, “It seems to me you are advocating for a position that is not in the Constitution.”

How about the Double Jeopardy Clause? Why does it refer to offenses, not crimes? I believe it is because offenses have fuzzy boundaries and should be settled once and for all. Crimes are posited concepts and have fixed boundaries; there should be no controversy after it has been established that a crime was committed.

Posted by: Tom McGee | Jul 5, 2009 11:45:29 AM

Tom, I don't think we can read anything in to the fifth amendment language of "offense" versus the word "crime" versus the sixth amendment phrase "criminal prosecutions." It is well, well established that as a constitutional matter, juries have no role to play in sentencing (despite some commetators talking about Apprendi being concerned with sentencing). There are a few states, like Texas and Ohio, and most states in the capital context, that give juries the power to set sentences. Your notion of a distinction between crime and offense would be a huge departure from 200 years of legal practice.

bruce cunningham

Posted by: bruce cunningham | Jul 6, 2009 9:44:48 PM

Bruce, here is a quote from Williams v. New York:

"Undoubtedly the New York statutes emphasize a prevalent modern philosophy of penology that punishment should fit the offender and not merely the crime."

Posted by: Tom McGee | Jul 7, 2009 11:49:24 PM

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