Rethinking Mandatory Minimums after Apprendi

Abstract

INTRODUCTION The Constitution requires that prosecutors prove a reasonable every element that constitutes the crime charged against a criminal defendant.1For many years, legislatures have sidestepped this constitutional requirement by denying that certain aspects of a crime are elements. Legislatures have instead labeled these aspects defenses2 or presumptions3 and thus transferred to the defendant the burden of proving their presence or absence. More recently, state legislatures and Congress have used the term factors4 to shift fact-finding responsibility regarding certain aspects of a crime from the jury to the judge, effectively lowering the required standard of proof from beyond reasonable doubt to preponderance of evidence.5 The Supreme Court has struck down some of these constructions as violating the criminal defendant's constitutional rights,6 and has upheld others.7 Until recently, however, the Court had not offered a clear rule or principle by which legislatures and lower courts could evaluate these criminal statutes.8 In Apprendi v. New Jersey,9 the Court announced such a rule: is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof a reasonable doubt.10 Apprendi is the most definitive statement in a quarter-century of Supreme Court decisions11 assessing the limits on a legislature's authority to define criminal offenses in ways that circumvent the constitutional protections guaranteed to criminal defendants. This Comment defines the issues at stake in this series of decisions and discusses how the Court's analysis has shifted, especially over the course of the four most recent decisions.12 This Comment contends that the majority's analysis in Apprendi should prompt reconsideration of the constitutionality of statutes that impose mandatory minimum sentences based on factors not submitted to the jury or proven a reasonable doubt.13 Part I presents several key decisions in the last quarter-century in which the Court has considered challenges to legislatures' definitions of criminal elements. Subpart A discusses the Maine statute at issue in Mullaney v. Wilbur, the analysis used by the Court to evaluate the constitutionality of the statute's rebuttable presumption of malice aforethought, and the guiding principle that emerged from the decision. Subpart B describes the statute at issue in Patterson v. New York and the distinctions the Court drew between the affirmative defense requirement in Patterson and the rebuttable presumption in Mullaney. It concludes that, although the effect of the two statutes was similar, the principle derived from Mullaney logically led the Court to reach a different result on the constitutionality of the statute in Patterson. Subparts C and D present, respectively, the mandatory minimum sentencing statutes at issue in McMillan v. Pennsylvania and Almendarez-- Torres v. United States, and discuss how the focus of the Court's analysis shifted from the legislature's authority to define proscribed activity to its role in determining how the proscribed activity should be evaluated. Subpart E describes the Court's reinterpretation in Jones v. United States of the rule articulated in Almendarez-Torres, and presents the language in Jones that foreshadowed the coming shift in the Court's analysis of sentencing factors. Finally, Subpart F discusses the enhancement statute at issue in Apprendi, and shows how the Court analyzed the statute's purpose and effect to conclude that it infringed on the defendant's constitutional right to trial by jury and proof reasonable of the elements of the offense. Part II compares the analysis and guiding principle of Apprendi to those of the other cases discussed in Part I, and concludes that the analysis in Apprendi should be followed in the future. …