Lewis v. United States (95-6465), 518 U.S 322 (1996).
[ O'Connor ]
[ Kennedy ]
[ Stevens ]
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No. 95-6465


on writ of certiorari to the united states court of appeals for the second circuit

[June 24, 1996]

Justice Stevens , with whom Justice Ginsburg joins, dissenting.

Unlike Justice Kennedy, however, I believe that the right to a jury trial attaches when the prosecution begins. I do not quarrel with the established view that only defendants whose alleged misconduct is deemed serious by the legislature are entitled to be judged by a jury. But in my opinion, the legislature's determination of the severity of the charges against a defendant is properly measured by the maximum sentence authorized for the prosecution as a whole. The text of the Sixth Amendment supports this interpretation by referring expressly to "criminal prosecutions."

Nothing in our prior precedents conflicts with this view. True, some of our past cases (the ones on which the majority relies) have referred to an "offense" rather than a "prosecution." See, e.g., Blanton v. North Las Vegas, 489 U.S. 538, 541 (1989); Frank v. United States, 395 U.S. 147, 148 (1969). But the words were effectively interchangeable in those cases because the prosecutions at issue concerned only one offense. The contempt cases, which do involve multiple offenses, demonstrate that aggregation--that is, deciding whether the defendant has a right to a jury trial on the basis of the prosecution rather than the individual offenses--is appropriate.

The majority attempts to distinguish Codispoti v. Pennsylvania, 418 U.S. 506 (1974), by suggesting that the Court's decision in that case turned on the absence of any statutory measure of severity. Ante, at 6. That observation is certainly correct to a point: The contempt cases are special because the sentence actually imposed provides the only available yardstick by which to judge compliance with the command of the Sixth Amendment. But that unique aspect of the cases does not speak to the aggregation question. Having determined that the defendants in Codispoti were sentenced to no more than six months for any individual contempt, it would follow from the rule the Court announces today that a jury trial was unnecessary. Yet we reversed and remanded, holding that "each contemnor was tried for what was equivalent to a serious offense and was [therefore] entitled to a jury trial." 418 U. S., at 517 (emphasis added). [n.*]

Justice Kennedy reads a second contempt case, Taylor v. Hayes, 418 U.S. 488 (1974), as standing for the proposition that a judge may defeat the jury trial right by promising a short sentence. He is mistaken. The dispositive fact in Taylor was not that the prison term imposed was only six months but rather that the actual sentence, acting as a proxy for the legislative judgment, demonstrated that "the State itself has determined that the contempt is not so serious as to warrant more than a six month sentence." 418 U. S., at 496. In this case, by contrast, we have an explicit statutory expression of the legislative judgment that this prosecution is serious--the two offenses charged are punishable by a maximum prison sentence of 12 months.

All agree that a judge may not strip a defendant of the right to a jury trial for a serious crime by promising a sentence of six months or less. This is so because "[o]pprobrium attaches to conviction of those crimes regardless of the length of the actual sentence imposed," ante, at 5 (Kennedy, J., concurring in judgment). In my view, the same rule must apply to prosecutions involving multiple offenses which are serious by virtue of their aggregate possible sentence. I see no basis for assuming that the dishonor associated with multiple convictions for petty offenses is less than the dishonor associated with conviction of a single serious crime. Because the right attaches at the moment of prosecution, a judge may not deprive a defendant of a jury trial by making a pretrial determination that the crimes charged will not warrant a sentence exceeding six months.

Petitioner is entitled to a jury trial because he was charged with offenses carrying a statutory maximum prison sentence of more than six months. I therefore would reverse the judgment of the Court of Appeals and, for that reason, I respectfully dissent.


* The majority's speculation that the Court's holding in Codispoti was limited to criminal contempt cases, ante, at 6-7, is persuasively answered by Justice Kennedy. See ante, at 4 (opinion concurring in judgment).