Jury Trial

By the time the United States Constitution and the Bill of Rights were drafted and ratified, the institution of trial by jury was almost universally revered, so revered that its history had been traced back to Magna Carta.53 The jury began in the form of a grand or presentment jury with the role of inquest and was started by Frankish conquerors to discover the King’s rights. Henry II regularized this type of proceeding to establish royal control over the machinery of justice, first in civil trials and then in criminal trials. Trial by petit jury was not employed at least until the reign of Henry III, in which the jury was first essentially a body of witnesses, called for their knowledge of the case; not until the reign of Henry VI did it become the trier of evidence. It was during the seventeenth century that the jury emerged as a safeguard for the criminally accused.54 Thus, in the eighteenth century, Blackstone could commemorate the institution as part of a “strong and two-fold barrier . . . between the liberties of the people and the prerogative of the crown” because “the truth of every accusation . . . . [must] be confirmed by the unanimous suffrage of twelve of his equals and neighbors indifferently chosen and superior to all suspicion.”55 The right was guaranteed in the constitutions of the original 13 states, was guaranteed in the body of the Constitution56 and in the Sixth Amendment, and the constitution of every state entering the Union thereafter in one form or another protected the right to jury trial in criminal cases.57 “Those who emigrated to this country from England brought with them this great privilege ‘as their birthright and inheritance, as a part of that admirable common law which had fenced around and interposed barriers on every side against the approaches of arbitrary power.’ ”58

“The guarantees of jury trial in the Federal and State Constitutions reflect a profound judgment about the way in which law should be enforced and justice administered. A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government. Those who wrote our constitutions knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority. The framers of the constitutions strove to create an independent judiciary but insisted upon further protection against arbitrary action. Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge. . . . [T]he jury trial provisions . . . reflect a fundamental decision about the exercise of official power—a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges. Fear of unchecked power . . . found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence.”59

Because “a general grant of jury trial for serious offenses is a fundamental right, essential for preventing miscarriages of justice and for assuring that fair trials are provided for all defendants,” the Sixth Amendment provision is binding on the states through the Due Process Clause of the Fourteenth Amendment.60 But, as it cannot be said that every criminal trial or any particular trial that is held without a jury is unfair,61 a defendant may waive the right and go to trial before a judge alone.62

The Attributes and Function of the Jury.

It was previ-ously the Court’s position that the right to a jury trial meant “a trial by jury as understood and applied at common law, and includes all the essential elements as they were recognized in this country and England when the Constitution was adopted.”63 It had therefore been held that this included trial by a jury of 12 persons64 who must reach a unanimous verdict65 and that the jury trial must be held during the first court proceeding and not de novo at the first appellate stage.66 However, as it extended the guarantee to the states, the Court indicated that at least some of these standards were open to re-examination,67 and in subsequent cases it has done so. In Williams v. Florida,68 the Court held that the fixing of jury size at 12 was “a historical accident” that, although firmly established when the Sixth Amendment was proposed and ratified, was not required as an attribute of the jury system, either as a matter of common-law background69 or by any ascertainment of the intent of the framers.70 Being bound neither by history nor framers’ intent, the Court thought the “relevant inquiry . . . must be the function that the particular feature performs and its relation to the purposes of the jury trial.” The size of the jury, the Court continued, bore no discernable relationship to the purposes of jury trial—the prevention of oppression and the reliability of factfinding. Furthermore, there was little reason to believe that any great advantage accrued to the defendant by having a jury composed of 12 rather than six, which was the number at issue in the case, or that the larger number appreciably increased the variety of viewpoints on the jury. A jury should be large enough to promote group deliberation, free from outside attempts at intimidation, and to provide a fair possibility that a cross-section of the community will be represented on it, but the Court did not speculate whether there was a minimum permissible size and it recognized the propriety of conditioning jury size on the seriousness of the offense.71

When the unanimity rule was reconsidered, the division of the Justices was such that different results were reached for state and federal courts.72 Applying the same type of analysis as that used in Williams, four Justices acknowledged that unanimity was a common-law rule but observed for the reasons reviewed in Williams that it seemed more likely than not that the framers of the Sixth Amendment had not intended to preserve the requirement within the term “jury.” Therefore, the Justices undertook a functional analysis of the jury and could not discern that the requirement of unanimity materially affected the role of the jury as a barrier against oppression and as a guarantee of a commonsense judgment of laymen. The Justices also determined that the unanimity requirement is not implicated in the constitutional requirement of proof beyond a reasonable doubt, and is not necessary to preserve the feature of the requisite cross-section representation on the jury.73 Four dissenting Justices thought that omitting the unanimity requirement would undermine the reasonable doubt standard, would permit a majority of jurors simply to ignore those interpreting the facts differently, and would permit oppression of dissenting minorities.74 Justice Powell, on the other hand, thought that unanimity was mandated in federal trials by history and precedent and that it should not be departed from; however, because it was the Due Process Clause of the Fourteenth Amendment that imposed the basic jury-trial requirement on the states, he did not believe that it was necessary to impose all the attributes of a federal jury on the states. He therefore concurred in permitting less-than-unanimous verdicts in state courts.75

Certain functions of the jury are likely to remain consistent between the federal and state court systems. For instance, the requirement that a jury find a defendant guilty beyond a reasonable doubt, which had already been established under the Due Process Clause,76 has been held to be a standard mandated by the Sixth Amendment.77 The Court further held that the Fifth Amendment’s Due Process Clause and the Sixth Amendment require that a jury find a defendant guilty of every element of the crime with which he is charged, including questions of mixed law and fact.78 Thus, a district court presiding over a case of providing false statements to a federal agency in violation of 18 U.S.C. § 1001 erred when it took the issue of the “materiality” of the false statement away from the jury.79 Later, however, the Court backed off from this latter ruling, holding that failure to submit the issue of materiality to the jury in a tax fraud case can constitute harmless error.80 Subsequently, the Court held that, just as failing to prove materiality to the jury beyond a reasonable doubt can be harmless error, so can failing to prove a sentencing factor to the jury beyond a reasonable doubt. “Assigning this distinction constitutional significance cannot be reconciled with our recognition in Apprendi that elements and sentencing factors must be treated the same for Sixth Amendment purposes.”81

When the Jury Trial Guarantee Applies.

The Sixth Amend-ment is phrased in terms of “all criminal prosecutions,” but the Court has always excluded petty offenses from the guarantee to a jury trial in federal courts, defining the line between petty and serious offenses either by the maximum punishment available82 or by the nature of the offense.83 This line has been adhered to in the application of the Sixth Amendment to the states,84 and the Court has now held “that no offense can be deemed ‘petty’ for purposes of the right to trial by jury where imprisonment for more than six months is authorized.”85 A defendant who is prosecuted in a single proceeding for multiple petty offenses, however, does not have a constitutional right to a jury trial, even if the aggregate of sentences authorized for the offense exceeds six months.86

The Court has also made some changes in the meaning of the term “criminal proceeding.” Previously, the term had been applied only to situations in which a person has been accused of an offense by information or presentment.87 Thus, a civil action to collect statutory penalties and punitive damages, because not technically criminal, has been held not to implicate the right to jury trial.88 Subsequently, however, the Court focused its analysis on the character of the sanction to be imposed, holding that punitive sanctions may not be imposed without adhering to the guarantees of the Fifth and Sixth Amendments.89 There is, however, no constitutional right to a jury trial in juvenile proceedings, at least in state systems and probably in the federal system as well.90

In a long line of cases, the Court had held that no constitutional right to jury trial existed in trials of criminal contempt.91 In Bloom v. Illinois,92 however, the Court announced that “[o]ur deliberations have convinced us . . . that serious contempts are so nearly like other serious crimes that they are subject to the jury trial provisions of the Constitution . . . and that the traditional rule is constitutionally infirm insofar as it permits other than petty contempts to be tried without honoring a demand for a jury trial.” The Court has consistently held, however, that a jury is not required for purposes of determining whether a defendant is insane or mentally retarded and consequently not eligible for the death penalty.93

Within the context of a criminal trial, what factual issues are submitted to the jury was traditionally determined by whether the fact to be established is an element of a crime or instead is a sentencing factor.94 Under this approach, the right to a jury had extended to the finding of all facts establishing the elements of a crime, but sentencing factors could be evaluated by a judge.95 Evaluating the issue primarily under the Fourteenth Amendment’s Due Process Clause, the Court initially deferred to Congress and the states on this issue, allowing them broad leeway in determining which facts are elements of a crime and which are sentencing factors.96

Breaking with this tradition, however, the Court in Apprendi v. New Jersey held that a sentencing factor cannot be used to increase the maximum penalty imposed for the underlying crime.97 “The relevant inquiry is one not of form, but of effect.”98 Apprendi had been convicted of a crime punishable by imprisonment for no more than ten years, but had been sentenced to 12 years based on a judge’s findings, by a preponderance of the evidence, that enhancement grounds existed under the state’s hate crimes law. “[A]ny fact that increases the penalty for a crime beyond the prescribed statutory maximum,” the Court concluded, “must be submitted to a jury, and proved beyond a reasonable doubt.”99 The one exception Apprendi recognized was for sentencing enhancements based on recidivism.100 In Alleyne v. United States, the Court extended Apprendi to require “that any fact that increases the mandatory minimum [sentence] . . . must be submitted to the jury.”101

Apprendi’s importance soon became evident as the Court applied its reasoning in other situations to strike down state or federal laws on Sixth Amendment grounds.102 In Ring v. Arizona, the Court applied Apprendi to invalidate an Arizona law that authorized imposition of the death penalty only if the judge made a factual determination as to the existence of any of several aggravating factors.103 Although Arizona had required that the judge’s findings as to aggravating factors be made beyond a reasonable doubt, and not merely by a preponderance of the evidence, the Court held that the findings must be made by a jury.104 Similarly, in Hurst v. Florida, the Court applied Apprendi, as well as the precedent of Ring, to invalidate a Florida statute authorizing a “hybrid” proceeding in which the “jury renders an advisory verdict[,] but the judge makes the ultimate sentencing determination[.]”105 According to the Court, such proceedings run afoul of the Sixth Amendment because the judge, not the jury, makes the findings of fact that result in the imposition of the death penalty.106

In Blakely v. Washington,107 the Court applied Apprendi to cast doubt on types of widely adopted reform measures that were intended to foster more consistent sentencing practices. Blakely, who pled guilty to an offense for which the “standard range” under the Washington State’s sentencing law was 49 to 53 months, was sentenced to 90 months based on the judge’s determination—not derived from facts admitted in the guilty plea—that the offense had been committed with “deliberate cruelty,” a basis for an “upward departure” under the statute. The 90-month sentence conformed to statutory limits, but the Court made “clear . . . 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 other words, the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.”108

Then, in United States v. Booker,109 the Court held that the same principles limit sentences that courts may impose under the federal Sentencing Guidelines.110 As the Court restated the principle in Booker, “[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.”111 Attempts to distinguish Blakely were rejected. The Court concluded that the fact that the Guidelines were developed by the Sentencing Commission rather than by Congress “lacks constitutional significance.”112 Instead, the Guidelines were suspect in application because, on the one hand, they curtailed the role of jury factfinding in determining the upper range of a sentence and, on the other hand, they mandated sentences from which a court could depart only in a limited number of cases and after separately finding the existence of factors not presented to the jury.113 The mandatory nature of the Guidelines was also important to the Court’s formulation of a remedy.114 Rather than engrafting a jury trial requirement onto the Sentencing Reform Act, under which the Guidelines were adopted, the Court instead invalidated two of its provisions, one making application of the Guidelines mandatory, and, concomitantly, one requiring de novo review for appeals of departures from the mandatory Guidelines, and held that the remainder of the Act could remain intact.115 As the Court explained, this remedy “makes the Guidelines effectively advisory. It requires a sentencing court to consider Guidelines ranges, but it permits the court to tailor the sentence in light of other statutory concerns as well.”116

In Cunningham v. California,117 the Court addressed whether California’s determinate state sentencing law, yet another style of legislative effort intended to regularize criminal sentencing, survived the Booker-Blakely line of cases. That law, and its implementing rules, required that the trial judge in the case sentence the defendant to 12 years in prison unless the judge found one or more additional “circumstances in aggravation,” in which case the sentence would be 16 years. Aggravating circumstances could include specific factual findings made by a judge under a “preponderance of the evidence” standard in apparent violation of Booker and Blakely. The court was also free to consider “additional criteria reasonably related to the decision being made.”118 The state argued that this latter provision conformed the California sentencing scheme to Booker, which contemplated that judges retain discretion to select a specific sentence within a statutory range, subject to appellate review to determine “reasonableness.” The Court rejected this argument, finding that the scheme impermissibly allocated sole authority to judges to find the facts that permitted imposition of a higher alternative sentence.119

The Court, however, has refused to extend Apprendi to a judge’s decision to impose sentences for discrete crimes consecutively rather than concurrently.120 The Court explained that, when a defendant has been convicted of multiple offenses, each involving discrete sentencing prescriptions, the states apply various rules regarding whether a judge may impose the sentences consecutively or concurrently.121 The Court held that “twin considerations—historical practice and respect for state sovereignty—counsel against extending Apprendi‘s rule” to preclude judicial fact-finding in this situation, as well.122

In Rita v. United States, the Court upheld the application, by federal courts of appeals, of the presumption “that a sentence imposed within a properly calculated United States Sentencing Guidelines range is a reasonable sentence.”123 Even if the presumption “increases the likelihood that the judge, not the jury, will find ‘sentencing facts,’ ” the Court wrote, it “does not violate the Sixth Amendment. This Court’s Sixth Amendment cases do not automatically forbid a sentencing court to take account of factual matters not determined by a jury and to increase the sentence in consequence. Nor do they prohibit the sentencing judge from taking account of the Sentencing Commission’s factual findings or recommended sentences. . . . The Sixth Amendment question, the Court has said, is whether the law forbids a judge to increase a defendant’s sentence unless the judge finds facts that the jury did not find (and the offender did not concede). . . . A nonbinding appellate presumption that a Guidelines sentence is reasonable does not require the judge to impose that sentence. Still less does it forbid the sentencing judge from imposing a sentence higher than the Guidelines provide for the jury-determined facts standing alone.”124

In United States v. Gall,125 the Court held that, “while the extent of the difference between a particular sentence and the recommended Guidelines range is surely relevant, courts of appeals must review all sentences—whether inside, just outside, or significantly outside the Guidelines range—under a deferential abuse-of-discretion standard.”126 The Court rejected “an appellate rule that requires ‘extraordinary’ circumstances to justify a sentence outside the Guidelines range,” and also rejected “the use of a rigid mathematical formula that uses the percentage of a departure as the standard for determining the strength of the justifications required for a specific sentence.” These approaches, the Court said, “come too close to creating an impermissible presumption of unreasonableness for sentences outside the Guidelines range.”127

Subsequently, in Spears v. United States,128 the Court, emphasizing that the Guidelines “are advisory only,” clarified “that district courts are entitled to reject and vary categorically from the . . . Guidelines based on a policy disagreement with those Guidelines.”129 In Spears, a district court had given a defendant a sentence significantly below the Guidelines for distribution of crack cocaine, noting that the Guidelines required 100 times more powder cocaine than crack cocaine to trigger a particular sentencing range. The Supreme Court held that, if a sentencing court believes “that the 100-to-1 ratio embodied in the sentencing guidelines for the treatment of crack cocaine versus powder cocaine creates ‘an unwarranted disparity within the meaning of [18 U.S.C.] § 3553(a),’ ” then it may vary downward from the Guidelines even when the particular defendant “presents no special mitigating circumstances” to justify a lower sentence.130

The Booker line of cases addresses the role of the Sentencing Guidelines in imposing and reviewing individual sentences. Booker, however, did not overturn the Sentencing Reform Act in its entirety, nor did it abolish the Guidelines themselves. One set of provisions left intact directed the Sentencing Commission to review the Guidelines periodically, authorized it to reduce the Guidelines range for individual offenses and make the reduced ranges retroactive, but also generally foreclosed a court from then reducing a sentence previously imposed to one less than the minimum contained in the amended Guideline range. In Dillon v. United States,131 the Court distinguished this sentence modification process from a sentencing or resentencing, and upheld mandatory limits on judicial reductions of sentences under it.

Footnotes

53
Historians no longer accept this attribution. Thayer, The Jury and Its Development, 5 HARV. L. REV. 249, 265 (1892), and the Court has noted this. Duncan v. Louisiana, 391 U.S. 145, 151 n.16 (1968). back
54
W. FORSYTH, HISTORY OF TRIAL BY JURY (1852). back
55
W. BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 349–350 (T. Cooley, 4th ed. 1896). The other of the “two-fold barrier” was, of course, indictment by grand jury. back
56
In Art. III, § 2. back
57
Duncan v. Louisiana, 391 U.S. 145, 153 (1968). back
58
Thompson v. Utah, 170 U.S. 343, 349–50 (1898), quoting 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 1773 (1833). back
59
Duncan v. Louisiana, 391 U.S. 145, 155–56 (1968). At other times the function of accurate factfinding has been emphasized. E.g., McKeiver v. Pennsylvania, 403 U.S. 528, 543 (1971). Although federal judges may comment upon the evidence, the right to a jury trial means that the judge must make clear to the jurors that such remarks are advisory only and that the jury is the final determiner of all factual questions. Quercia v. United States, 289 U.S. 466 (1933). back
60
Duncan v. Louisiana, 391 U.S. 145, 157–58 (1968). back
61
391 U.S. at 159. Thus, state trials conducted before Duncan was decided were held to be valid still. DeStefano v. Woods, 392 U.S. 631 (1968). back
62
Patton v. United States, 281 U.S. 276 (1930). As with other waivers, this one must be by the express and intelligent consent of the defendant. A waiver of jury trial must also be with the consent of the prosecution and the sanction of the court. A refusal by either the prosecution or the court to defendant’s request for consent to waive denies him no right since he then gets what the Constitution guarantees, a jury trial. Singer v. United States, 380 U.S. 24 (1965). It may be a violation of defendant’s rights to structure the trial process so as effectively to encourage him “needlessly” to waive or to penalize the decision to go to the jury, but the standards here are unclear. Compare United States v. Jackson, 390 U.S. 570 (1968), with Brady v. United States, 397 U.S. 742 (1970), and McMann v. Richardson, 397 U.S. 759 (1970), and see also State v. Funicello, 60 N.J. 60, 286 A.2d 55 (1971), cert. denied, 408 U.S. 942 (1972). back
63
Patton v. United States, 281 U.S. 276, 288 (1930). back
64
Thompson v. Utah, 170 U.S. 343 (1898). Dicta in other cases was to the same effect. Maxwell v. Dow, 176 U.S. 581, 586 (1900); Rassmussen v. United States, 197 U.S. 516, 519 (1905); Patton v. United States, 281 U.S. 276, 288 (1930). back
65
Andres v. United States, 333 U.S. 740 (1948). See dicta in Maxwell v. Dow, 176 U.S. 581, 586 (1900); Patton v. United States, 281 U.S. 276, 288 (1930). back
66
Callan v. Wilson, 127 U.S. 540 (1888). Preserving Callan, as being based on Article II, § 2, as well as on the Sixth Amendment and being based on a more burdensome procedure, the Court in Ludwig v. Massachusetts, 427 U.S. 618 (1976), approved a state two-tier system under which persons accused of certain crimes must be tried in the first instance in the lower tier without a jury and if convicted may appeal to the second tier for a trial de novo by jury. Applying a due process standard, the Court, in an opinion by Justice Blackmun, found that neither the imposition of additional financial costs upon a defendant, nor the imposition of increased psychological and physical hardships of two trials, nor the potential of a harsher sentence on the second trial impermissibly burdened the right to a jury trial. Justices Stevens, Brennan, Stewart, and Marshall dissented. Id. at 632. See also North v. Russell, 427 U.S. 328 (1976). back
67
Duncan v. Louisiana, 391 U.S. 145, 158 n.30 (1968); DeStefano v. Woods, 392 U.S. 631, 632–33 (1968). back
68
399 U.S. 78 (1970). Justice Marshall would have required juries of 12 in both federal and state courts, id. at 116, while Justice Harlan contended that the Sixth Amendment required juries of 12, although his view of the due process standard was that the requirement was not imposed on the states. Id. at 117. back
69
The development of 12 as the jury size is traced in Williams, 399 U.S. at 86–92. back
70
399 U.S. at 92–99. Although the historical materials were scanty, the Court thought it more likely than not that the framers of the Bill of Rights did not intend to incorporate into the word “jury” all its common-law attributes. This conclusion was drawn from the extended dispute between House and Senate over inclusion of a “vicinage” requirement in the clause, which was a common law attribute, and the elimination of language attaching to jury trials their “accustomed requisites.” But see id. at 123 n.9 (Justice Harlan). back
71
399 U.S. at 99–103. In Ballew v. Georgia, 435 U.S. 223 (1978), the Court unanimously, but with varying expressions of opinion, held that conviction by a unanimous five-person jury in a trial for a nonpetty offense deprived an accused of his right to trial by jury. Although readily admitting that the line between six and five members is not easy to justify, the Justices believed that reducing a jury to five persons in nonpetty cases raised substantial doubts as to the fairness of the proceeding and proper functioning of the jury to warrant drawing the line at six. back
72
Apodaca v. Oregon, 406 U.S. 404 (1972), involved a trial held after decision in Duncan v. Louisiana, 391 U.S. 145 (1968), and thus concerned whether the Sixth Amendment itself required jury unanimity, while Johnson v. Louisiana, 406 U.S. 356 (1972), involved a pre-Duncan trial and thus raised the question whether due process required jury unanimity. Johnson held, five-to-four, that the due process requirement of proof of guilt beyond a reasonable doubt was not violated by a conviction on a nine-to-three jury vote in a case in which punishment was necessarily at hard labor. back
73
Apodaca v. Oregon, 406 U.S. 404 (1972) (Justices White, Blackmun, and Rehnquist, and Chief Justice Burger). Justice Blackmun indicated a doubt that any closer division than nine-to-three in jury decisions would be permissible. Id. at 365. back
74
406 U.S. at 414, and Johnson v. Louisiana, 406 U.S. 356, 380, 395, 397, 399 (1972) (Justices Douglas, Brennan, Stewart, and Marshall). back
75
406 U.S. at 366. Burch v. Louisiana, 441 U.S. 130 (1979), however, held that conviction by a non-unanimous six-person jury in a state criminal trial for a nonpetty offense, under a provision permitting conviction by five out of six jurors, violated the right of the accused to trial by jury. Acknowledging that the issue was “close” and that no bright line illuminated the boundary between permissible and impermissible, the Court thought the near-uniform practice throughout the Nation of requiring unanimity in six-member juries required nullification of the state policy. See also Brown v. Louisiana, 447 U.S. 323 (1980) (holding Burch retroactive). back
76
See In re Winship, 397 U.S. 358, 364 (1970). back
77
Sullivan v. Louisiana, 508 U.S. 275 (1993). back
78
United States v. Gaudin, 515 U.S. 506 (1995). back
79
515 U.S. at 523. back
80
Neder v. United States, 527 U.S. 1 (1999). back
81
Washington v. Recuenco, 548 U.S. 212, 220 (2006). Apprendi is discussed in the next section. back
82
District of Columbia v. Clawans, 300 U.S. 617 (1937); Schick v. United States, 195 U.S. 65 (1904); Callan v. Wilson, 127 U.S. 540 (1888). back
83
District of Columbia v. Colts, 282 U.S. 63 (1930). back
84
Duncan v. Louisiana, 391 U.S. 145, 159–62 (1968); Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216 (1968). back
85
Baldwin v. New York, 399 U.S. 66, 69 (1970). Justices Black and Douglas would have required a jury trial in all criminal proceedings in which the sanction imposed bears the indicia of criminal punishment. Id. at 74 (concurring); Cheff v. Schnackenberg, 384 U.S. 373, 384, 386 (1966) (dissenting). Chief Justice Burger and Justices Harlan and Stewart objected to setting this limitation at six months for the States, preferring to give them greater leeway. Baldwin, 399 U.S. at 76; Williams v. Florida, 399 U.S. 78, 117, 143 (1970) (dissenting). No jury trial was required when the trial judge suspended sentence and placed defendant on probation for three years. Frank v. United States, 395 U.S. 147 (1969). There is a presumption that offenses carrying a maximum imprisonment of six months or less are “petty,” although it is possible that such an offense could be pushed into the “serious” category if the legislature tacks on onerous penalties not involving incarceration. No jury trial is required, however, when the maximum sentence is six months in jail, a fine not to exceed $1,000, a 90-day driver’s license suspension, and attendance at an alcohol abuse education course. Blanton v. City of North Las Vegas, 489 U.S. 538, 542–44 (1989). back
86
Lewis v. United States, 518 U.S. 322 (1996). back
87
United States v. Zucker, 161 U.S. 475, 481 (1896). back
88
161 U.S. at 481. See also Oceanic Steam Navigation Co. v. Stranahan, 214 U.S. 320 (1909); Hepner v. United States, 213 U.S. 103 (1909). back
89
Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963). The statute at issue in Mendoza-Martinez automatically divested an American of citizenship for departing or remaining outside the United States to evade military service. A later line of cases, beginning in 1967, held that the Fourteenth Amendment broadly barred Congress from involuntarily expatriating any citizen who was born in the United States. back
90
McKeiver v. Pennsylvania, 403 U.S. 528 (1971). back
91
E.g., Green v. United States, 356 U.S. 165, 183–87 (1958), and cases cited; United States v. Burnett, 376 U.S. 681, 692–700 (1964), and cases cited. A Court plurality in Cheff v. Schnackenberg, 384 U.S. 373 (1966), held, asserting the Court’s supervisory power over the lower federal courts, that criminal contempt sentences in excess of six months imprisonment could not be imposed without a jury trial or adequate waiver. back
92
391 U.S. 194, 198 (1968). Justices Harlan and Stewart dissented. Id. at 215. As in other cases, the Court drew the line between serious and petty offenses at six months, but because, unlike other offenses, no maximum punishments are usually provided for contempts it indicated the actual penalty imposed should be looked to. Id. at 211. See also Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216 (1968). The distinction between criminal and civil contempt may be somewhat more elusive. International Union, UMW v. Bagwell, 512 U.S. 821 (1994) (fines levied on the union were criminal in nature where the conduct did not occur in the court’s presence, the court’s injunction required compliance with an entire code of conduct, and the fines assessed were not compensatory). back
93
Ford v. Wainwright, 477 U.S. 399, 416–417 (1986); Atkins v. Virginia, 536 U.S. 304, 317 (2002); Schriro v. Smith, 546 U.S. 6, 7 (2005). See Eighth Amendment, “Limitations on Capital Punishment: Diminished Capacity,” infra. back
94
In Washington v. Recuenco, however, the Court held that “[f]ailure to submit a sentencing factor to the jury, like failure to submit an element [of a crime] to the jury, is not structural error,” entitling the defendant to automatic reversal, but can be harmless error. 548 U.S. 212, 222 (2006). back
95
In James v. United States, 550 U.S. 192 (2007), the Court found no Sixth Amendment issue raised when it considered “the elements of the offense . . . without inquiring into the specific conduct of this particular offender.” Id. at 202 (emphasis in original). The question before the Court was whether, under federal law, attempted burglary, as defined by Florida law, “presents a serious potential risk of physical injury to another” and therefore constitutes a “violent felony,” subjecting the defendant to a longer sentence. Id. at 196. In answering this question, the Court employed the “categorical approach” of looking only to the statutory definition and not considering the “particular facts disclosed by the record of conviction.” Id. at 202. Thus, “the Court [was] engaging in statutory interpretation, not judicial factfinding,” and “[s]uch analysis raises no Sixth Amendment issue.” Id. at 214. back
96
For instance, the Court held that whether a defendant “visibly possessed a gun” during a crime may be designated by a state as a sentencing factor, and determined by a judge based on the preponderance of evidence. McMillan v. Pennsylvania, 477 U.S. 79 (1986). After resolving the issue under the Due Process Clause, the Court dismissed the Sixth Amendment jury trial claim as “merit[ing] little discussion.” Id. at 93. For more on the due process issue, see the discussion in “Proof, Burden of Proof, and Presumptions,” infra. back
97
530 U.S. 466, 490 (2000). back
98
530 U.S. at 494. “[M]erely because the state legislature placed its hate crime sentence enhancer within the sentencing provisions of the criminal code does not mean that the finding of a biased purpose to intimidate is not an essential element of the offense.” Id. at 495 (internal quotation omitted). back
99
530 U.S. at 490. back
100
530 U.S. at 490. Enhancement of sentences for repeat offenders is traditionally considered a part of sentencing, and a judge may find the existence of previous valid convictions even if the result is a significant increase in the maximum sentence available. Almendarez-Torres v. United States, 523 U.S. 224 (1998) (deported alien reentering the United States is subject to a maximum sentence of two years, but upon proof of a felony record, is subject to a maximum of twenty years). Almendarez-Torres was cited with approval on this point in James v. United States, 550 U.S. 192, 214 n.8 (2007) (“prior convictions need not be treated as an element of the offense for Sixth Amendment purposes”). See also Parke v. Raley, 506 U.S. 20 (1992) (if the prosecutor has the burden of establishing a prior conviction, a defendant can be required to bear the burden of challenging its validity). back
101
570 U.S. ___, No. 11–9335, slip op. at 1–2 (2013) (overruling Harris v. United States, 536 U.S. 545 (2002)). back
102
Apprendi has influenced the Court’s ruling on matters of statutory interpretation. For example, in Mathis v. United States, 579 U.S. ___, No. 15–6092, slip op. (2016), a plurality of the Court concluded that the “elements based approach” to interpreting the Armed Career Criminal Act (ACCA)—wherein a judge is prohibited from inquiring into the specific conduct of a particular offender’s previous acts in determining whether a sentence enhancement applies—is necessitated by Apprendi’s holding that generally only a jury, and not a judge, may find facts that increase a maximum penalty. Id. at 10; see also id. at 1 (Kennedy, J., concurring) (joining the five-Justice majority opinion, but expressing a “reservation” about the majority’s reliance on Apprendi, “as that case was incorrect, and . . . does not compel the elements based approach.”); Descamps v. United States, 570 U.S. ___, No. 11–9540, slip op. at 14 (2013) (noting the “serious Sixth Amendment concerns” that would arise if the element-centric, categorical approach was not adopted with regard to interpreting the ACCA). back
103
536 U.S. 584 (2002). back
104
“Because Arizona’s enumerated aggravating factors operate as ‘the functional equivalent of an element of a greater offense,’ . . . the Sixth Amendment requires that they be found by a jury.” Id. at 509 (quoting Apprendi, 530 U.S. at 494 n.19). The Court rejected Arizona’s request that it recognize an exception for capital sentencing in order not to interfere with elaborate sentencing procedures designed to comply with the Eighth Amendment. Id. at 605–07. back
105
577 U.S. ___ , No. 14–7505, slip op. at 1–2 (2016) (quoting Ring, 536 U.S. at 584 n.6) (quotation marks omitted). In so doing, the Court expressly overruled its earlier decisions in Spaziano v. Florida, 468 U.S. 447, 459 (1984), and Hildwin v.Florida, 490 U.S. 638, 640–41 (1989) (per curiam), which had approved of Florida’s “hybrid” proceedings on the grounds that “the Sixth Amendment does not require that the specific findings authorizing the imposition of the sentence of death be made by a jury.” Id. at 9 (quoting Hildwin, 490 U.S. at 640–41). Both of these decisions had been issued prior to Ring. back
106
Id. at 6. back
107
542 U.S. 296 (2004). back
108
542 U.S. at 303–304 (italics in original; citations omitted). In Southern Union Co. v. United States, 567 U.S. ___, No. 11–94, slip op. (2012), the Court cited this passage in Blakely as a springboard to its conclusion that the Apprendi line of cases apply in imposing criminal fines. The maximum fine that could be imposed in Southern Union Co. was pegged to the number of days a violation continued, but the jury was not asked to determine the duration of the violation. The Court saw no “principled basis” for treating criminal fines differently from imprisonment or capital punishment. In all these cases, the Sixth Amendment guards against “judicial factfinding that enlarges the maximum punishment a defendant faces beyond what the jury’s verdict or the defendant’s admissions allow.” back
109
543 U.S. 220 (2005). back
110
Under the Sentencing Reform Act of 1984, the United States Sentencing Commission adopted binding Sentencing Guidelines, and courts were required to impose sentences within the narrow, defined ranges. A judge could depart from the applicable Guideline only upon finding in writing that an aggravating or mitigating factor was present that had not adequately been considered by the Commission. See Mistretta v. United States, 488 U.S. 361 (1989). back
111
543 U.S. at 244. back
112
543 U.S. at 237. Relying on Mistretta v. United States, 488 U.S. 361 (1989), the Court also rejected a separation-of-powers argument. Id. at 754–55. back
113
543 U.S. at 233–35. back
114
There were two distinct opinions of the Court in Booker. The first, authored by Justice Stevens and joined by Justices Scalia, Souter, Thomas, and Ginsburg (the same Justices who comprised the five-Justice Blakely majority), applied Blakely to find a Sixth Amendment violation; the other, authored by Justice Breyer, and joined by Chief Justice Rehnquist and Justices O’Connor, Kennedy, and Ginsburg (the Blakely dissenters joined by Justice Ginsburg), set forth the remedy. back
115
543 U.S. at 259. Consistent with the role it envisioned for a sentencing judge, the Court substituted a “reasonableness” standard for the statutory de novo appellate review standard that it struck down. 543 U.S. at 262. back
116
543 U.S. at 245–246 (statutory citations omitted). Although not addressed in the Booker ruling, a provision of the Sentencing Guidelines that limits district courts from departing from the Guidelines during resentencing (the previous sentence having been vacated) on grounds other than those considered during for the first sentencing, was subsequently struck down as conflicting with the now-advisory nature of the Guidelines. Pepper v. United States, 562 U.S. ___, No. 09–6822, slip op. (2011). back
117
549 U.S. 270 (2007). back
118
549 U.S. at 278–79, quoting California Rule 4.408(a). back
119
549 U.S. at 279–80. “The reasonableness requirement that Booker anticipated for the federal system operates within the Sixth Amendment constraints delineated in our precedent, not as a substitute for those constraints.” 549 U.S. at 292–93. back
120
Oregon v. Ice, 555 U.S. 160 (2009). back
121
Most states follow the common-law tradition of giving judges unfettered discretion over the matter, while some states presume that sentences will run consecutively but allow judges to order concurrent sentences upon finding cause to do so. “It is undisputed,” the Court noted, “that States may proceed on [either of these] two tracks without transgressing the Sixth Amendment.” Id. at 163. back
122
Id. at 168. The Court also noted other decisions judges make that are likely to evade the strictures of Apprendi, including determining the length of supervised release, attendance at drug rehabilitation programs, terms of community service, and imposition of fines and orders of restitution. Id. at 171–72. back
123
551 U.S. 338, 341 (2007). The Court emphasized that it was upholding “an appellate court presumption. Given our explanation in Booker that appellate ‘reasonableness’ review merely asks whether the trial court abused its discretion, the presumption applies only on appellate review. . . . [T]he sentencing court does not enjoy the benefit of a legal presumption that the Guidelines sentence should apply.” Id. at 351, quoted in part in Nelson v. United States, 129 S. Ct. 891 (2009) (per curiam), where the Court added, “The Guidelines are not only not mandatory on sentencing courts; they are also not to be presumed reasonable.” Id. at 892 (emphasis in original). back
124
551 U.S. at 352, 353 (emphasis in original). The Court added: “The fact that we permit courts of appeals to adopt a presumption of reasonableness does not mean that courts may adopt a presumption of unreasonableness. . . . [A]ppellate courts may not presume that every variance from the advisory Guidelines is unreasonable. . . . Several courts of appeals have also rejected a presumption of unreasonableness. . . . However, a number of circuits adhere to the proposition that the strength of the justification needed to sustain an outside-Guidelines sentence varies in proportion to the degree of the variance.” Id. at 354–55. back
125
128 S. Ct. 586 (2007) (upholding a sentence of probation where the Guidelines had recommended imprisonment). back
126
128 S. Ct. at 591. “As explained in Rita and Gall, district courts must treat the Guidelines as the ‘starting point and the initial benchmark.’ ” Kimbrough v. United States, 128 S. Ct. 558 (2007) (upholding lower-than-Guidelines sentence for trafficker in crack cocaine, where sentence “is based on a disagreement with the sentencing disparity for crack and powder cocaine offenses”). A district court judge may determine “that, in the particular case, a within-Guidelines sentence is ‘greater than necessary’ to serve the objectives of sentencing.” Kimbrough, 128 S. Ct. at 564. back
127
128 S. Ct. at 595. Justice Alito, dissenting, wrote, “we should not forget [that] . . . Booker and its antecedents are based on the Sixth Amendment right to trial by jury. . . . It is telling that the rules set out in the Court’s opinion in the present case have nothing to do with juries or factfinding and, indeed, that not one of the facts that bears on petitioner’s sentence is disputed. What is at issue, instead, is the allocation of the authority to decide issues of substantive sentencing policy, an issue on which the Sixth Amendment says absolutely nothing. The yawning gap between the Sixth Amendment and the Court’s opinion should be enough to show that the Blakely-Booker line of cases has gone astray.” Id. at 605 (Alito, J., dissenting). back
128
129 S. Ct. 840 (2009) (per curiam). back
129
129 S. Ct. at 842, 843–44. back
130
129 S. Ct. at 842. back
131
Dillon v. United States, 560 U.S. ___, No. 09–6338, slip op. (2010). back