William H. Rehnquist: We'll hear argument now in Number 97-6203, Nathaniel Jones v. The United States.
Quin Denvir: Mr. Chief Justice, and may it please the Court: The issues presented by Mr. Jones' case are, first, whether in selecting certain factors to increase the sentence from carjacking from 15 years maximum to 25 to life, Congress intended those factors be considered only at the time of sentencing under a reduced standard of proof, or did they... Congress intend that they be elements of an offense which would have to be pled and proved beyond a reasonable doubt to a jury. We believe that the proper interpretation is that these are offense elements. If the Court should decide otherwise, then the Court would have to face the constitutionality of treating these types of factors only as sentencing factors.
Anthony M. Kennedy: Has the term elements been used or defined by this Court in a decision, or a series of decisions, or is it... is the term we get from the common law which is a summary of what the actus reis is?
Quin Denvir: I don't think it is... has been defined. It may have been defined in Winship, when the Court held that the prosecution had to prove beyond a reasonable doubt all the facts that constituted the offense with which... of which the defendant is charged. That may have been the closest to a definition, but I don't think there's any definitive definition, at least that I'm aware of.
Anthony M. Kennedy: And I don't recall that that used the term elements, although it might have. It's a term that's been around since the ancient common law, I suppose. I'm just not sure that we have ever used it as the pivotal point for decisions or for formulating rules.
Quin Denvir: That may be correct, Your Honor. I think what... as I say, the Court talked about facts necessary to constitute the offense with which someone is charged. On the other hand, in McMillan for the first time the Court did use the term sentencing factors, and that appears to be a term that the Court has said can be proved at... to the judge only under reduced standard of proof and perhaps by a lesser form of evidence that--
Anthony M. Kennedy: So in that sense it's almost conclusory.
Quin Denvir: --It's almost... I think it's the reverse of the sentencing factor. We've argued it's either an element of the offense, an element of an aggravated offense, should be deemed an element of the offense, but I think the major point we believe is that it has to be alleged in the indictment and it has to be proved to a jury beyond a reasonable doubt.
Sandra Day O'Connor: Well, the Federal sentencing scheme has a whole array of factors that the sentencer takes into consideration after the conviction for the crime, doesn't it?
Quin Denvir: It does, Your Honor, and--
Sandra Day O'Connor: And quantity of drugs being one of them, and I guess if we were to adopt your position that would be unconstitutional.
Quin Denvir: --Well, Your Honor, I think our position is that you have to look to the statute and see whether Congress has identified a particular factor of any kind, and has used that or made that the basis for an increased sentencing range. I think a separate question which we don't--
Sandra Day O'Connor: So if Congress has spoken to the issue, then we have to treat it as an element of the crime?
Quin Denvir: --Well, Your Honor, I think the question that the Court posed in Almendarez-Torres was, what was Congress' intent? Was it intended to be merely a sentencing factor or not?
Sandra Day O'Connor: I'm glad you brought up the case, because I would have thought that might govern the resolution of this case.
Quin Denvir: On the statutory question, Your Honor, I think we have a much different statute and we have a much stronger argument that these were not meant to be sentencing factors. On the constitutional question, we don't believe that Almendarez-Torres resolves that, because we believe that the Court stressed so strongly in Almendarez-Torres the fact that what Congress had selected to trigger the increase in sentence was recidivism, and the Court said in both the constitutional and statutory parts of it that recidivism has been as traditional a sentencing factor as ever, and has been--
Sandra Day O'Connor: Well, so has injury to a victim. My goodness, talk about traditional. I was a trial judge at one time, and gee, I thought presentence reports frequently talked about the extent of the injury to the victim--
Quin Denvir: --I think the--
Sandra Day O'Connor: --and that that was a sentencing factor, very traditionally.
Quin Denvir: --It has been that, but it has not been limited to sentencing. I think that was the point that the Court seemed to make in Almendarez-Torres.
William H. Rehnquist: Well, so far as the increase in sentencing is concerned as a result of finding these factors, this isn't as great as Almendarez-Torres.
Quin Denvir: You mean the amount of the increase?
William H. Rehnquist: Yes.
Quin Denvir: Well, it would be if the death had resulted as a serious bodily injury.
William H. Rehnquist: Yes, but that were not... that wasn't the case here.
Quin Denvir: No, that's correct, but the actual increase is not as great. But I think, if I could go back to Justice O'Connor's question, I think--
Antonin Scalia: But death, it would be appropriate to take account of death in determining whether it's a sentencing factor or an element.
Quin Denvir: --Well, we believe, and I believe--
Antonin Scalia: I mean, for purposes of interpreting the statute--
Quin Denvir: --That's correct.
Antonin Scalia: --death would be relevant.
Quin Denvir: I don't believe that the Gov... I think the Government and we agree that there's no distinction between serious bodily injury resulting, and death resulting, at least in terms of interpreting the statute, that they're either both elements of the offense or something of that nature, the opposite of a sentencing factor, or they are sentencing factors. But I think that the key point in Almendarez-Torres, at least it appeared from what the Court wrote, was that the recidivism factor of prior convictions had always been limited to sentencing. It had never been used as an element of the offense.
Stephen G. Breyer: It has. It's been... it was an element of the offense in the possession with... you know, felon in possession.
Quin Denvir: Yes, Your Honor. I was going to say that. That's the only occasion, and I think that what the opinion--
Stephen G. Breyer: That's pretty important. Sometimes it was used the one way, sometimes used the other way, felon in possession.
Quin Denvir: --Well, I think that's the only time it was used, Your Honor, and as I read the opinion, and the Court made a point that it had never been used as an element of an offense where the conduct was already illegal. The Court said that twice, made that point, acknowledged the unusual situation of--
Antonin Scalia: In Federal statutes?
Quin Denvir: --I'm sorry, Your Honor.
Antonin Scalia: Talking about in the Federal criminal code, or--
Quin Denvir: This was the point that the Court made, that Congress had not done that.
Antonin Scalia: --That Congress hadn't done it?
Quin Denvir: Congress had not made recidivism a... that was the point the majority made twice, so we think that that's quite different here, because what you find is that Congress clearly has made serious bodily injury an element of several offenses which we have cited, and in fact that the States, who have traditionally dealt with robbery, have almost invariably treated serious bodily injury as an element of the offense, or at least something that must be pled and proved to the jury beyond a reasonable doubt.
Stephen G. Breyer: I mean, I think you're absolutely right. I think that the recidivism is, if you like, the extreme. It's at the extreme. But now the question is, all right, do you have a rule that just governs the extreme, or is it a rule that governs... maybe in the statutory interpretation this is a fortiori against you from Almendarez-Torres, that if you reach the constitutional question, then I guess you have to say, well, is it an extreme that only recidivism or is it somewhat less?
Quin Denvir: I think--
Stephen G. Breyer: Which is asking us to narrow Almendarez-Torres away and make it disappear.
Quin Denvir: --No, Your Honor. I think if you look at In re Winship and you look at Mullaney v. Wilbur you have the basic idea that a fact which is an element of the crime, which is necessary to constitute the crime, must be proved beyond a reasonable doubt.
William H. Rehnquist: Well, we've come a long way from Mullaney v. Wilbur.
Quin Denvir: I think that's--
William H. Rehnquist: Patterson... yes.
Quin Denvir: --I think it has, Your Honor, and as I understand it the Court in McMillan has said if it is merely a fact which restrains the sentencer's discretion within the statutory range, that it need not go to a jury, and then in Almendarez-Torres the Court said, if it is a recidivist factor which increases the statutory range, it need not go to the jury. But--
Stephen G. Breyer: Let me ask you the question, I think in my own mind only... I'm only speaking for myself, but I would say that at the heart of this was... at least the thought in my own mind that since, let's say 1,000 years... that's an exaggeration... a couple of hundred years, we have statutes that define crimes, and we have judges that assert punishment under the statute. And when they assert punishment, sometimes it's a little punishment and sometimes a bigger punishment, and you can look into it scientifically with the aid of search and find out what in general bigger or littler turns on, and when we find that out we find certain factors, like how much drug there was, like whether a person was hurt, like whether there was a recidivist, and that turns out to be true regardless of what the judge says. Now, suddenly, if you decide to write some of that into law, either in the form of statutory... of guidelines or statutes, does that suddenly become unconstitutional, the effort to regularize what happened in the past by saying explicitly that those factors that did, in fact, govern punishment in the past now will be presumptively, or sometimes in statutes more than presumptively, grounds for increasing or diminishing a sentence? What is it about that effort to regularize that should suddenly constitutionalize procedural requirements that were not there when this very same thing went on under the cloak of darkness because the judge didn't say what was going on?
Quin Denvir: --Well, Your Honor--
Stephen G. Breyer: That's what in my mind is lying at the heart of this and, of course, my answer in Almendarez-Torres is, except in extreme cases the Constitution does permit Congress and the Commission to regularize what previously happened silently, or without understanding, or... et cetera. That, to be honest, was what my thought was.
Quin Denvir: --I understand that, Your Honor, and I think it partly goes to what is the definition of a criminal offense and what conduct is ascribed to a violation of that, and I'd like to give you a example of, if what you say is correct, what could happen, and I don't... this was really... was envisioned by the dissenting justices in the Monge case. But we have 18 U.S. Code section 247. It says that someone who intentionally defaces real property, or intentionally obstructs a person in the enjoyment of their religious freedom, is... shall be punished as in subsection (d). Subsection (d) says that if death results, or if the acts include kidnapping or intent to kidnap, you can receive life or death. If bodily injury results, or... and other things, it can be 40 years. If it's bodily injury under other circumstances it can be 20 years, and in any other case, it is 1 year or a fine. Now, the Solicitor General's position is, and I think the position that would follow from what you've said is that the jury would only determine whether there was this intentional defacing real property, or interference with religious rights, and then... which would only trigger a fine or a 1-year sentence, but the judge then would make all of these critical findings which would really determine this person's deprivation of liberty--
Antonin Scalia: Mr. Denvir, why do you accept Justice Breyer's hypothesis that this has been uniformly the practice in the past? Have you ever heard of a hanging judge?
Quin Denvir: --Certainly, Your Honor, and--
Antonin Scalia: Which was a judge which would give the maximum. If you came up before him, you would get the max, period, and that happened sometimes, didn't it?
Quin Denvir: --It certainly did.
Antonin Scalia: So when you committed a particular crime, you knew that you ran a risk of getting the max.
Quin Denvir: That's correct.
Antonin Scalia: Absolutely, depending on who... what judge happened to get your case, and that's not the case under these statutes, is it?
Quin Denvir: No, it isn't at all, and it raises the possibility in this case, for instance, if Mr. Jones had pled guilty to the carjacking as charged, and during the time between his guilty plea and sentencing the person had died, he would have just gone from 15 years to in this case a potential sentence of life imprisonment. But I think the other thing in response to Justice Breyer's question is, I don't think you can... you can really quantify what judges have done in the past, because judges sometimes don't express all that. But I think the key point is, we've always thought, at least In re Winship says that, that a jury is the most reliable determiner of these basic facts as to what a person did that was wrong, and what exactly will trigger the potential deprivation of liberty that he or she faces, and in this particular case, the serious bodily injury resulting factor, a factor that only arose at the time of sentencing, in effect increased the sentence that Mr. Jones was facing by two-thirds.
William H. Rehnquist: Well, would our system be any better off if we went... if we repealed the Sentencing Guidelines and went back to the situation where the judges didn't say what they were taking into consideration, but two people would end up in Leavenworth convicted of the same crime, one was committed for 2 years and the other was committed for 20 years? When Congress tried to regularize that, have they made it subject to a lot of constitutional objections that, as Justice Breyer says, the process wasn't subject to before because no one explained their reasons?
Quin Denvir: Well, Your Honor, I think that once again we are not challenging the fact that Congress can pick out particular factors that will restrict the sentencing authority's discretion within the statutory range. What we have here, and which we think is critical, is, you have the definition of a criminal offense and the attaching of potential penalties by Congress, and we think at that point those facts that trigger that increase, all the way up to death or life, are facts that should be determined by a jury, because that's the most reliable way it should be done.
Sandra Day O'Connor: But that was Almendarez-Torres.
Quin Denvir: Your Honor--
Sandra Day O'Connor: I mean, those were facts that were not proven in the crime-in-chief, and it increased the potential maximum sentence.
Quin Denvir: --They are facts of that nature, but I think what was pointed out in Almendarez-Torres is that the fact of a prior conviction first of all is not often disputed. Number 2, it has been the subject of a prior proceeding where you had the kind of reliable fact-finding--
Sandra Day O'Connor: Well, neither is it often disputed whether the victim died or didn't die.
Quin Denvir: --Well--
Sandra Day O'Connor: I mean, he did or he didn't.
Quin Denvir: --Well, it may be as to whether that death resulted from this crime, and certainly in a case like we have here there is certainly a substantial question as to whether this was serious bodily injury as defined by the statute. But these are traditional components of the prohibited transaction that juries make factual findings on under a higher standard because we want that reliability, we want that public confidence in the soundness of the decision. That's why the elements of the crime are ascribed to the jury--
Sandra Day O'Connor: But not in a State, for example, where the sentencing is done by the judge, not the jury. It is typical that a judge is going to be considering such things as the prior bad acts of the defendant, and the extent of injury to the victim. I mean, those are traditional.
Quin Denvir: --And Your Honor, we have no quarrel with that, whether it's done under a sentencing guideline-type scheme, as we have in the Federal courts, or under another scheme, but the fact of the matter is, we're talking about the definition of the range of potential penalties. We're not talking about what determines the penalty within that range, and I think--
Antonin Scalia: It's optional for those judges, isn't it? I mean, they may, and may perhaps ordinarily do, impose a significantly higher penalty because of bodily injury, but they don't have to, do they?
Quin Denvir: --They don't have to, and they--
Antonin Scalia: And they can still impose the minimum.
Quin Denvir: --Right, and they can determine--
Antonin Scalia: Whereas under this law they have no option. They are bound to impose the greater penalty, aren't they?
Quin Denvir: --They are bound to look at an increased range of 25 years, based on that finding.
Anthony M. Kennedy: Well, so is your position that any time a judge is bound to make a particular minimum sentence, that the Constitution requires that to be shown as an element of the crime?
Quin Denvir: Again, Your Honor, I think that's the McMillan case, and the Court has said that if Congress or the legislator singles out a factor which will either control or guide the discretion of the sentencing authority within the statutory range of punishment, that that does not raise these concerns, but this is a different matter.
Sandra Day O'Connor: Well, under this statute... under this statute if serious bodily injury results then the defendant will be sentenced to not more than 25 years. It doesn't fix it at--
Quin Denvir: It does not fix it at 20, but it exposes him.
Sandra Day O'Connor: --It just exposes him to a broader range of discretion by the judge.
Quin Denvir: Based on a factual finding that was not made by a jury, it was not made beyond a reasonable doubt, and it was not subject to the traditional safeguards.
Sandra Day O'Connor: The same thing can in essence be true of a judge who says, well, I'm going to give a higher sentence because I happen to have determined on a preponderance that you've been previously convicted, or because the victim suffered serious injury, or because there was a very large quantity of drugs involved here.
Quin Denvir: That's correct, Your Honor, and the only case that the Court has decided in that range is the recidivism question, and the Court selected certain factors about that that apparently were critical. One was that traditionally recidivism prior convictions had been limited to sentencing, had not been used as elements. The second was, they were very seldom disputed. The third thing was that they were easily verifiable. The fourth thing was that the prior conviction had been the subject of reliable fact-finding either by a jury trial or an informed waiver of that trial, and all those factors are really important. The other thing that the Court cited was the fact that the defendant could suffer from having that prior conviction brought before the trier of fact jury, and that... as another reason. None of those apply when you're talking about a particular part of the criminal conduct that has been singled out.
William H. Rehnquist: Don't you think the defendant could suffer by having the fact of serious bodily injury or death being brought before the jury?
Quin Denvir: Your Honor, first of all, in the carjacking statute it is likely that will come in anyway, because the Government will try to use it to show that the taking was by force or... force and violence or by intimidation, so it's already going to go before the jury. If a particular defendant wants to keep that out, he always has the opportunity to seek a bifurcation on that issue, or to stipulate to the issue, but we think the defendant should be able to make the choice as to whether they will have the jury hear these and make a reliable fact-finding--
William H. Rehnquist: If that's true with respect to bodily injury it's also true of a prior conviction.
Quin Denvir: --It is, Your Honor, except for the fact that that's seldom disputed, and generally it has been found reliably in the past, where serious bodily injury is a brand-new issue and should be found under this higher standard by a more reliable fact-finder.
William H. Rehnquist: But in the Old Chief case it was disputed as just what should be the form of presenting the prior conviction to the jury.
Quin Denvir: That's correct, and there would be ways, perhaps under Old Chief or by seeking bifurcation, that a defendant who did not want this information to go before the jury could keep it out, if the Government was not already seeking to bring it in to show force and violence or intimidation, which are elements of the statute.
John Paul Stevens: Other than in the death penalty context, are you aware of any case where elements of the crime are bifurcated, and where the Constitution requires two trials?
Quin Denvir: I'm not sure that the Constitution require, but I think a court would have that... the discretion to bifurcate it in the proper case.
John Paul Stevens: Would you have special verdicts in this-- --They used to do it with some regularity with respect to recidivism, didn't they?
Quin Denvir: With the prior convictions. In the States at least they used to routinely bifurcate--
John Paul Stevens: Would you have special verdicts under this statute under your reading?
Quin Denvir: --Your Honor, I don't believe it would require it. I think all it would require that the fact of serious bodily injury resulting would be added as to one of the elements that the jury must find in order to convict the defendant of that particular crime, just like possession of a weapon.
John Paul Stevens: Well, then you submit alternate counts to the jury?
Quin Denvir: It may be possible on any given case that you could have a lesser-included offense, which would be the simple case of carjacking, which happens in bank robbery statutes. We have armed bank robbery. We have bank robbery. Those are sometimes both submitted to the jury, and that could happen, I would think, in this case.
Stephen G. Breyer: I mean, I've never heard of bifurcating a trial... maybe it exists... where it's an element of the offense, the injury. I mean-- Well-- --You've heard of that? Maybe... all right, It might be rare, but that--
Quin Denvir: --It has been done--
Stephen G. Breyer: --Okay.
Quin Denvir: --with prior convictions where--
Stephen G. Breyer: Prior convictions, yes.
Quin Denvir: --That's correct.
Stephen G. Breyer: --obviously, if this is an element of the offense, I don't know how you'd bifurcate it, but--
Quin Denvir: That--
Stephen G. Breyer: --maybe you would. My question, which is related to that, is, imagine... I might be misremembering, but it seems in my youth in California there was something called the California Adult Authority, and it was fairly common to write a criminal statute somewhat analogous to the one we have here that would have said the following. The penalty for possessing a firearm, blah, blah, blah... you know, possessing a firearm presence, is life, period, up to life, and then it would be up to some prison authorities to decide whether it was 1 year, 5 years, 10 years... does that ring a bell--
Quin Denvir: --Certainly it does.
Stephen G. Breyer: --that there were systems like that? Okay.
Quin Denvir: It's an indeterminate sentencing law.
Stephen G. Breyer: Now... now... an indeterminate sentencing. Now, Congress in its wisdom afterwards thinks that's a bad system. It's too subjective. So what we want to do is regularize it. Now, you've said, suppose I'm in Congress trying to write this. I think, I want to do the following. I want to put the person away for life, okay, if he kills somebody, but if he doesn't, he just has bodily injury, I think he should only go away for not more than 25 years, and if he doesn't do that I think not more than 10. Now, you've suggested there's a way of writing that statute where you don't have to prove all those as elements of the offense, although here you think you do. What's that way of getting my legislative result where I just want to direct the sentencing authority?
Quin Denvir: I think--
Stephen G. Breyer: How would I write that statute, in your opinion, that would be different from the way this one was written?
Quin Denvir: --I think... I think if a statute was passed which provided that carjacking would control up to life, and if the statute also said that there was a determining, unless there was serious bodily injury, it couldn't be more than 15 years, and something of that nature, that would raise different questions than are presented here. The Court in Almendarez-Torres reserved the question, the question presented there, whether the role of a particular factor within the statutory authority, could be so great that it would require greater constitutional safeguards.
Stephen G. Breyer: I'm... but what I didn't get, I'm not thinking of Almendarez-Torres. I'm not thinking of any case. I only want your opinion. I am a legislator. I want to control sentencing by statute, as I just said. Now, how do I write that statute so I'm instructing the sentencer, not so I'm creating three new offenses? How, in your opinion, do I write it? You know how I'd write it? I'd write it the way this one's written, but you have a different opinion of that, and so I want to know how to do it.
Quin Denvir: I think, as I say, I... to accomplish what you wanted, but it raises different questions in here, than the statute we have here, it could be provided that carjacking carries up to a life sentence, and that... but you cannot sentence for more than 15 years unless there's serious bodily injury, and you can't go for more than 25 years unless there is death resulting. That would be a way to write--
Antonin Scalia: That would be okay?
Quin Denvir: --No, I don't think that would be okay. The question was--
Antonin Scalia: I thought your answer was going to be that the legislature can't do that.
Quin Denvir: --I don't think they can, Your Honor.
Antonin Scalia: The legislature, if it wants to leave it up to the judges, I mean, that's the price of having indeterminate sentences and allowing somebody to be sentenced anywhere from 1 year to life. The price is, you have to leave it up to the judge, but if you want to exercise control over it, I thought it was your position, you have to make it an element of the crime.
Quin Denvir: That's our basic position, Your Honor.
Antonin Scalia: All you have to do--
Quin Denvir: I was trying to respond to the California--
John Paul Stevens: --All you have to do is say, if you have an aggravating circumstance of that significance, you have to have it found by the jury.
Quin Denvir: --That--
John Paul Stevens: It's a very simple statute to write. It's a question of whether you want that kind of a statute that the judge has a rein to make all these findings that normally are made by juries.
Quin Denvir: --Well, our position is, the statute that's before this Court, which parallels, as I say, this section 247, takes this... takes certain factors and says to a defendant, if those factors are found to be true, then you will look at an additional 10 years, or perhaps all the way to life, or now, under the amendments, to death. We believe that those factors which are components of the crime, the prohibited transaction, must be alleged in the indictment, must be submitted to a jury, and must be proved beyond a reasonable doubt.
Anthony M. Kennedy: Correct me if I'm wrong, and I may be wrong. I thought it was more or less an article of faith for the criminal defense bar that they want general verdicts so that the jury can consider all of the circumstances of the crime in one verdict before it makes its conclusion. Now, you seem to be going contrary to that.
Quin Denvir: No, Your Honor. What we want is, we want the elements of the offense that have to be proved in order to deprive our clients of liberty, that they should be set forth... presented to a grand jury, set forth in an indictment, submitted to a jury under a general instruction as to elements, and proved beyond a reasonable doubt before our clients face that additional penalty. That's what we want.
Anthony M. Kennedy: It seems to me necessarily you're going to want special verdicts and/or bifurcated trials.
Quin Denvir: I really don't think special verdicts are required. I think it's just a question of including it in the elements of the offense. It may also then have a lesser included in any given case. But that's done all the time in Federal court. The bank robbery statutes are done that way. In fact, the Court has a case along those lines coming up about lesser includeds. If I could reserve my time.
William H. Rehnquist: Very well, Mr. Denvir. Mr. DuMont, we'll hear from you.
Edward C. DuMont: Thank you, Mr. Chief Justice, and may it please the Court: In our view, Congress intended serious bodily injury to be a sentencing factor, statutory sentencing factor under section 2119, and nothing in the Constitution requires that it be treated as an element of the offense. Let me pause for a moment in the language and structure of the statute. The initial paragraph, section 2119, as it applies here, sets out exactly what you would expect from a Federal carjacking offense, taking a car that is moved in commerce, in the person or presence of another, possessing a firearm, force and violence... it's a very standard robbery offense. That initial paragraph ends with the word shall, followed by a dash, leaving the reader to think, all right, now I'm going to find out about penalties, and then you have three numbered clauses that follow that that do deal with penalties. One is for a default penalty of up to 15 years, and then two progressively higher sentences that are authorized maximum sentences that are authorized if certain findings are made. In our view, the natural and plain construction of that language is that these are statutory sentencing factors, and that's what the courts below have held.
Sandra Day O'Connor: Are there due process limits at all on what Congress can treat as a sentencing factor as opposed to an element?
Edward C. DuMont: The Court has always suggested that there are such limits, and we don't oppose that. I'm not aware of any statute that has been struck down on that ground. I think one reason for that is suggested, in fact, by Justice Stevens' dissent in McMillan, which is that there are some real-world constraints here. Legislatures don't pass statutes that would come very close to the line of allowing, as the metaphor goes, the tail of sentencing to wag the dog of the substantive offense.
Antonin Scalia: This one reads pretty much like that to me, and what about the defacing of property statute that your colleague suggested?
Edward C. DuMont: Well, I--
Antonin Scalia: It's an offense of defacing property.
Edward C. DuMont: --I think that--
Antonin Scalia: If nothing else happens, punished by 1 year. If there's physical injury, 30 years. If there's a death, life, and whether there's physical injury, or whether there's death, is taken away from the jury and your right to jury trial does not exist for those. Is that a problem?
Edward C. DuMont: --Well, I think first of all that's in the civil rights sections of the statutes, the statutes intended to address defacement of religious property for the reasons of race or creed. It's a very serious offense. Congress was responding simply to some known problems.
Antonin Scalia: So serious you get 1 year for it.
Edward C. DuMont: So--
Antonin Scalia: Unless somebody dies, in which case you get life, and you don't get a jury trial as to whether anybody has died.
John Paul Stevens: Yes, and you can commit it by just throwing a bucket of paint on a wall. That would do it.
Edward C. DuMont: --Well, that's right, but I think the fundamental question, then... and there are... one can multiply the examples here. The assault statute, for instance, that is a simple assault, but if someone dies there could be life imprisonment. The examples are there. I think what troubles us about those examples when we hear them is a notion of proportionality, that it would be disproportionate to send someone to jail for life, for instance, when the offense of conviction is merely a defacement of property or a simple assault. I think that would be an interesting and, perhaps, difficult sentencing--
William H. Rehnquist: It's the piling on of, you know, on top of a 1-year sentence a 20-year sentence. The... it... to me it's the disproportion between the sentence that is piled on and the initial sentence.
Edward C. DuMont: --Well--
William H. Rehnquist: Which I don't think you have here.
Edward C. DuMont: --We certainly don't have it here, and I think the question in those cases is always going to be, well, under a sort of proportionality analysis, could Congress pass this statute and simply say--
John Paul Stevens: It's really an Eighth Amendment issue, I guess.
Edward C. DuMont: --it's defacement of property and the penalty is life, and as Justice Breyer was suggesting, leave it up to the judge. Would we have a problem with that? In individual cases, we might. If a death was found we might not have a problem with the proportionality there, and I think it really is the same constitutional analysis. What it is not is a due process problem, with Congress' being able to define what it intends to be elements and what it intends to be--
Ruth Bader Ginsburg: Mr. DuMont-- --Well, in your-- --in the context of this case, let's take the Rivera situation, where Congress said to the First Circuit, you got it wrong, and rape is included in serious bodily injuries, so as you read this statute carjacking, and there's an allegation that a rape took place, and that's disputed, and yet the person could be tried by the jury for the carjacking part, the judge decides whether the rape occurred or not, and that would be... that's the way the statute would work. Do I understand you correctly?
Edward C. DuMont: --That's right.
Ruth Bader Ginsburg: So you would have by a preponderance of the evidence 10 years added on for the rape by the judge.
Edward C. DuMont: I think that's absolutely right, and I think it's important to point out that that's exactly what the result would be if this statute said, as it might very well, here are the elements, the penalty is life, now go to the guidelines, and Congress has, of course, mandated that district judges obey the guidelines.
Antonin Scalia: It wouldn't necessarily be that. It would depend on what the sentencing authority decided to do. If you left it entirely to the judge, he might tack on 10 years, but he wouldn't have to. If you leave it up to the Sentencing Commission, they might tack on 10 years, but they don't have to. There's a big difference between Congress prescribing that you must do it this way, and Congress taking a chance that somebody, whether it be the individual judge or the Sentencing Commission, will do it that way. Isn't that the difference between an element and something that isn't an element?
Edward C. DuMont: Well, I think that is the interesting argument, and our answer to that is no. Congress can do it either way. To us it does not make sense to say that there are many options Congress has. It can set a determinate sentence. It could have said, for every carjacking, the sentence is 40 years, period. We know from Chapman and other cases that would be fine. It could say... no discretion to anybody. It could say, apparently, carjacking is this, and the penalty is up to life. The judge can do whatever he wants to and, subject to some very lax appellate check, there is no... there's plenary discretion. We also know from any number of recent cases that Congress can commit this issue to the Sentencing Commission. It can say, all right, the penalty is life. The Sentencing Commission now may exercise its discretion to actually impose quite narrow bounds on the discretion of the trial judge, and that is perfectly constitutional, even if the same conduct, for instance, was not charged, or was charged and the defendant was acquitted. It seems to us quite anomalous to say that as a constitutional matter Congress may do any of those things, but what it may not do is direct the exercise of that discretion, the sentencing discretion itself, in the statute. That would seem to us a very strange world, where it can delegate this authority to the Sentencing Commission, but it can't exercise the authority itself.
Antonin Scalia: Can you tell us-- --There's a world of difference between-- --Can you tell us what Congress... go ahead. --world of difference between letting somebody else do something and requiring that somebody else do something. The latter is lawmaking, and that's prescribing the elements of the crime. I mean, at least that that--
Sandra Day O'Connor: --How does this statute--
Antonin Scalia: --that is open to discussion that that's prescribing the elements of the crime, but where you just leave it to the judge you have no control over it, or the sentencing.
Sandra Day O'Connor: How does this statute require it? I'm confused. I thought it just said, may give up to 25 years.
Edward C. DuMont: That's absolutely right. This statute sets some statutory maxima. It says nothing about... it's as though you had the guidelines but with the possibility of downward departure but not the possibility of upward departure. All Congress has done here, as opposed to a guidelines system, is to give defendants an absolute maximum under certain circumstances, whereas under the guidelines actually they wouldn't have that. They would have always the possibility the judge would choose to upward depart, and they could go up to life, so if we're talking about fundamental fairness to the defendants here, it seems to us this scheme is much more protective of the defendant's rights than is a scheme that leaves everything up to the Sentencing Commission or to the sentencing judge, and it would be surpassingly odd for there to be a due process problem.
John Paul Stevens: May I ask, if the statute said it may increase... now it says if the judge makes such finding. If some third party suggests that this person may have done this, then the statute, the maximum should go up. I mean, you don't even have proof beyond a reasonable... by a preponderance, but just a suspicion of... would that be constitutional to allow that to increase the maximum? Would that raise a due process question?
Edward C. DuMont: It's a finding at sentencing, but by some very low standard.
John Paul Stevens: The judge does the sentencing. He says, if someone reports to the judge that he thinks this person has injured someone very seriously, the maximum may be increased to 25... a certain amount. Would that be permissible?
Edward C. DuMont: I've two answers. I think it might be a pretty accurate reflection of some things that happened under an indeterminate system, but as to whether, if we knew that was what was happening if that would be a problem--
John Paul Stevens: No, it's not an indeterminate system. It increases the maximum. He may do it if certain facts come to his attention by an ex parte submission, or something like that.
Edward C. DuMont: --Well, I think the standard of proof at sentencing can raise a due process question, yes. I think--
John Paul Stevens: You think the standard of preponderance of evidence is mandated by the Due Process Clause? In other words, is... they now require the judge to make findings. What if they didn't require the finding and just said, suspicion is enough?
Edward C. DuMont: --All the Court has ever said is--
John Paul Stevens: I know we have... what do you think about that? Do you think it would raise a due process concern?
Edward C. DuMont: --I think it would raise some concerns if you were allowed to sentence on the basis of suspicion, but on the other hand--
John Paul Stevens: The difference between suspicion and preponderance raises concerns, but the difference between preponderance and proof beyond a reasonable doubt does not?
Edward C. DuMont: --Well, and there are cases that say that clear and convincing evidence is a good place to stop in between. I agree that it's a very difficult place to draw lines.
Stephen G. Breyer: Is that an open question?
Edward C. DuMont: That is an open question.
Stephen G. Breyer: I mean, it's an open question whether this... whether you have to have, in the sentencing factor, a preponderance, clear and convincing, beyond reasonable doubt. This Court's never decided that.
Edward C. DuMont: This Court has specifically reserved the question.
Stephen G. Breyer: All right, and so is that a matter of constitutional law, a matter of guideline law, a matter of the statutes under the guideline... what is it a matter of?
Edward C. DuMont: It could be any. I mean, accepted practice under the guidelines is that preponderance is not only enough, but required. It could be a constitutional question.
William H. Rehnquist: In McMillan, didn't we say a preponderance was enough on the facts of that case?
Edward C. DuMont: Yes, absolutely, and that's always been the standard, and that is sufficient, and no one has tried to go below that, so--
John Paul Stevens: You see, my point is that when you use these indeterminate sentencing examples where the judge had total discretion, the judge then could act on ex parte submissions that were purely suspicion, and you're saying that because that was permissible in indeterminate sentencing, when you have a regular system with statutorily required increases, you can still follow the same basic principle.
Edward C. DuMont: --Well--
John Paul Stevens: It seems to me it doesn't follow at all.
Edward C. DuMont: --I think that is the logic of many of the sentencing cases. I mean, that argument has been played out in the context of the Sentencing Guidelines, and the argument has been made that now that we know what judges are doing under the Sentencing Guidelines there should be constitutional consequences, but the Court has rejected that in Watts and Witte, so in our view that question is settled.
Anthony M. Kennedy: Can you tell me, what is your formulation for what must be submitted to the jury in a criminal case?
Edward C. DuMont: Our formulation is that... and this is going to be a little unsatisfactory, but our formulation is that the elements of proof beyond a reasonable doubt of each of the elements of the offense, as defined by the legislature, must be submitted to the jury.
Anthony M. Kennedy: So you use the term elements, which is what your adversary uses, and it's just a question of our parsing the meaning of the term, elements?
Edward C. DuMont: Well, I think not, because what the Court has said... and the case I would point you to in response to, I believe it was your first question of the afternoon, is perhaps Patterson v. New York, which does talk in these terms. It was talking about a background where the argument had been made much like the argument here, that anything that... any factor that we know is going to substantially increase the sentence must be an element, or must be proved beyond a reasonable doubt, and the Court says no, the State here has defined these to be the elements of murder, I think it was, and that is all that has to be proved to the jury beyond a reasonable doubt, and that is our working definition is, what the legislature defines as an element of the offense necessary to conviction is an element. Now, the Court has reserved whether there are situations in which the legislature might go so far, either in attempting to presume guilt of an element or in attempting to design a system--
Anthony M. Kennedy: How do I know what's an element and what isn't an element?
Edward C. DuMont: --In the first instance you know it by looking at the statute and seeing what Congress or the State legislature has defined as an element, and in Congress' case that's particularly true, because of course there's no common law background to fall back on. We have only the statutory--
Anthony M. Kennedy: Only because Congress has never used the term element. Maybe I'm wrong. Maybe it has, but--
Edward C. DuMont: --Well, it is done against a long practice, so I think what you have in the elements of offense is something like you have here. You have a statute that says, whoever. It lists certain actions or, and usually a state of mind, then it says shall, and gives you a set of punishments. I think that's a very good indication that what comes in between the whoever and the shall is an element that has to be proved to the jury in order to establish guilt of the crime. Our submission on that fundamentally is, it is whatever... the elements of a crime are what the legislature says they are, subject to some--
Ruth Bader Ginsburg: --Is there any indication that Congress knew when it was drafting, say, the robbery statute as opposed to the carjacking, that in the one case it was robbery, the serious bodily injury would go to the jury, and the other, it would go to the judge? You say it's a matter of what Congress intended. I read your brief and you say, well, the way the robbery statute is written, serious bodily injury would go to the jury, right, but the way the carjacking statute is, it would go to the judge. Is there any indication that Congress... it seems to me it doesn't make a whole lot of sense to distinguish those two.
Edward C. DuMont: --Well, I think there has been something of a paradigm shift over the last 40 years if you want to look at the way statutes have developed, and I think we think slightly differently and more clearly now about some of these issues. We are now--
Antonin Scalia: No jury trial now, right--
Edward C. DuMont: --We're working on that.
Antonin Scalia: --as opposed to 40 years ago?
Edward C. DuMont: We're working on that. What you have now, 19... 2119 was passed in 1992, well into the guidelines era, so it seems to us very likely, in fact it seems to us clear that Congress was thinking in terms of elements of an offense, and then sentencing factors, jury, judge. The analysis was somewhat less clear, say, 40 or 50 years ago, and I think when you look at something like the bank robbery statute, all of the cases under those statutes have always proceeded on the assumption that the question is, lesser included offense, greater offense, separate offenses in the double jeopardy sense, or one offense in the double jeopardy sense. And the conclusion there has been that Congress, when they set out three separately subdivided offenses, each starting with the whoever language, each having elements, each having a shall, each having a separate penalty, that Congress intended to create three different penalty... three different substantive offenses, in the sense that we are now talking about, and we--
Ruth Bader Ginsburg: There's the question of the age of the statute, and you're saying, maybe if the bank robbery statute were passed today it would be just like the carjacking statute.
Edward C. DuMont: --I think it might be written differently, that's all, or we would have a different indication. If it were written the way it is written now, we would submit it should still be interpreted the way we would say it is. There are three separate statutory offenses and the additional elements and aggravated offenses under the bank robbery statute, we've never argued that they don't have to be proved to the jury. We think they do.
Antonin Scalia: Mr. DuMont, I assume if you have a... you know, a crime that has a 10-year penalty, 10 years in prison, now, that's serious enough that you need a jury trial, I assume. That's all it says, just, you know, burglary, 10 years. But if you define a crime as defacing a religious building, or something like that, and provide 10 years for that, and then 20 years, another 10 years for some other sentencing factor that's put into that, you don't need a jury, and maybe even 20 years. That's not disproportionate yet, is it? I don't know at what point you say it becomes disproportionate. Is increasing it from 10 to 20 disproportionate yet?
Edward C. DuMont: I--
Antonin Scalia: You don't know. And then from 20 to 30 for some other sentencing factor. Why would the people who cared so much about the right to trial by jury, why would they think it unimportant that in the one context you should have a jury determine that you deserve that 10 years, but so long as Congress phrases it as a sentencing factor, we don't care about a jury? I mean, I'm trying to come up with some interpretation of the jury guarantee that makes sense, and that doesn't make any sense to me.
Edward C. DuMont: --Well, I can appreciate that effort, but we would be trying to come up... if we went the other way, if we went back to a Mullaney system, then it seems to me we would be trying to come up in a long series of cases with some limits on this theory of, well then, what is going to be an element? What increases punishment sufficiently so we're now going to call it an element? Whereas, it is not only consonant with tradition but much simpler and clearer to say, Congress defines the elements of the offense, there are certain, perhaps a number of checks on that, but if Congress has defined an offense and then provided for a maximum sentence, as in this case of life, there's nothing wrong with it then saying, here are some intermediate stopping points as a matter of sentencing, and we are directing sentencing judges, in applying this statute, to stop at those points.
Anthony M. Kennedy: Well, you have a constitutional right to a jury trial to be... where the jury, not the judge, determines if a person is a bad man, but if the question is whether he's a very bad man, that goes to the judge? I mean, is that where we are?
Edward C. DuMont: Well, you know, there are always... again, there are other constitutional principles that may supervene here. There is a vagueness principle, which has usually served to protect us from crimes that either don't give notice of what they prohibit, or are invitations to arbitrary enforcement. So if I understand the question, that it's like Justice Scalia's hypothetical in his dissent in Monge, that we're talking about a... it is unlawful to willfully cause injury, knowingly cause injury to another, and everything else is a sentencing factor, it seems to me that would be quite vulnerable to challenge on vagueness grounds. It's not, it seems to me, very vulnerable to challenge on the ground that the legislature doesn't have the right to make knowingly causing injury to another a criminal offense.
John Paul Stevens: But you're opponent is arguing--
Anthony M. Kennedy: --I guess we're trying to ask for the rationale of the jury trial or guarantee, and then to square it with the results that we're asked to reach here.
Edward C. DuMont: Well, I think the jury trial guarantee is a central guarantee which ensures that once Congress has defined an offense, you may not be punished for that offense until a jury of your peers has found that you have in fact engaged in conduct which satisfies each of the elements of that offense. I know that may not be satisfactory. I don't know any other way, any other terminology to--
John Paul Stevens: But you made the point, and your opponent made the same point, that one of the things at stake here is the notice. Your notice in the indictment need not specify that which will subject him to the much longer penalty, the bodily injury, for example.
Edward C. DuMont: --Well, that's right, and that's exactly what would be true... I--
John Paul Stevens: It seems to me that you--
Edward C. DuMont: --hate to keep coming back to this, but it is exactly what would be true if Congress had instead given less guidance in the statute, and had simply set a high maximum, which would have been perfectly appropriate for a very serious, violent crime like this, and then you'd have a lot of guidelines, mandatory guidelines under the Sentencing Commission's rules--
John Paul Stevens: --But, see, there are three things at issue. There's the fair notice issue, which is very important, there's who shall make the decision if the person normally wants a jury, and by what standard of proof, and in your view, none of those is constitutionally mandated.
Edward C. DuMont: --Well, I think fair notice... fair notice of what you've been charged with and what the Government has to prove to convict you is certainly mandated, but here they--
John Paul Stevens: No, but all you have to be... you don't have to be... give notice that they claim you caused serious bodily harm. You don't have to give that notice.
Edward C. DuMont: --No, nor do you have to give notice of any other sentencing factor in any normal case. I mean, if you have a kidnapping statute, and the range on the statute is zero to life, the Government is under no obligation to give notice about particular things that might urge the judge at sentencing. It's never been part of our traditions that that is a right that you can invoke at the indictment stage, so I don't know what the difference is here simply because Congress has made certain sentencing factors more obvious on the face of the statute. In fact, you've given more notice to the defendant, because the defendant was there at the crime and presumably knows whether there was a question of bodily injury or death, and therefore has more notice on the face of the statute of what the possible intermediate sentence is.
William H. Rehnquist: The defendant's attorney certainly has notice that this is going to be a factor considered at sentencing in a way that he might not at the other... in the old type of hearing.
Edward C. DuMont: That's absolutely right, and there was no question here of any lack of notice at any stage of the--
John Paul Stevens: How can you assume the defendant always knows what the Government thinks happened? Maybe it didn't happen the way the Government thought it did. Maybe there wasn't in fact serious bodily injury, he was injured by somebody else. I mean, the whole system is that you give the defendant notice of what the charges are so he can decide what to defend. You're saying he committed the crime, therefore he knows what the Government's going to charge.
Edward C. DuMont: --Well, at sentencing--
John Paul Stevens: That's what you said.
Edward C. DuMont: --At sentencing the whole principle is that you know in advance if... under the current system you actually know in advance, much more than you traditionally did, what the factors that are relevant are going to be and, in this instance, a question of serious bodily injury did arise between indictment and the sentencing, and the defendant had notice of that at sentencing, there was a sentencing proceeding in which the defendant was free to contest that, and the judge made a finding. So in terms of whether there has been due process here in any normal sense, I think there has been.
Ruth Bader Ginsburg: In the facts of this very case, the magistrate judge told him he was facing 15 years, and it was a little confused because, do I understand correctly he was not the one who actually administered the blow, it was his codefendant?
Edward C. DuMont: I believe that's correct.
Ruth Bader Ginsburg: So here was a magistrate judge who didn't accurately notify the defendant of what he faced. The magistrate judge says, it's 15 years.
Edward C. DuMont: That's true, and I misspoke. There was that notice issue. It seems to me that's a notice issue that went out of the case at the time the defendant decided to go to trial. If there had been a guilty plea, for instance, based in important part on that misinformation, that would have been a good ground, perhaps, for vacating the plea if it later turned out to have been wrong, but I don't know under what principle a defendant who was misinformed at the arraignment but then had counsel and was presumably aware of the contents of the statute, and went to trial and got a jury trial on all the elements of the offense, I don't... I think that notice issue simply washes out of the case.
Stephen G. Breyer: So ultimately there's no notice. I mean, notice isn't the problem. The defendant always gets notice either before the trial or before the sentencing.
Edward C. DuMont: That's right.
Stephen G. Breyer: All right. So if we call it a sentencing factor, the defendant gains one thing and loses two. He gains the right not to have it proved in the middle of his trial. He loses the ability to have it... the right to have it proved before a jury beyond a reasonable doubt. I think that's the practicalities of it, and if that's so, the question becomes, does Congress have authority to pick and choose which things it wants to make elements, and which things it wants to make sentencing factors.
Edward C. DuMont: Correct.
Stephen G. Breyer: And everybody seems to think there's some limit on that, and I take it you don't have a clear idea of how to phrase what that limit is. If you did, that's what I'm driving towards.
Edward C. DuMont: Well, the Court has given a variety of clues along the way. It certainly has clearly stated that a State or a legislature cannot define something as an element of the offense and then presume that it exists. If you are going to define something as an element of the offense, then you have to send it to the jury. That's one thing the Court has said. There is a question of fundamental fairness. There might be circumstances under which fundamental fairness would require, says the Court, that something be treated as an element. That is what the Court has said, and I cannot give you a good answer on how to give more content to that, except that we will probably know that we have a serious issue when one arises. I don't think that any such issue arises under this statute, because here we have a very serious, very violent offense, defined in wholly conventional terms. If you look at this, it is a robbery offense all the way up until the word shall. There is nothing unconventional about that offense, except perhaps that Congress added the element of possessing a firearm, which is an additional protection, and what you have below the shall are extremely conventional sentencing factors. Here's a basic sentence we think is appropriate. If, however, there's victim harm that rises to a serious bodily injury, then it's more serious. If there's victim harm that goes to death, it's very serious. There's nothing in that whole structure that we think remotely challenges whatever constitutional limits there may be on how Congress can define offenses, and that's, I'm afraid, the best I can do for you.
William H. Rehnquist: Mm-hmm, thanks.
Edward C. DuMont: If the Court has no further questions, thank you.
William H. Rehnquist: Thank you, Mr. DuMont. Mr. Denvir, you have 3 minutes remaining.
Quin Denvir: Thank you, Your Honor. I would like to address quickly, if I could, the statutory question, which we believe this statute should be construed as not setting forth sentencing factors. The Government's position is that, to identify three offenses in the text of the section, the statute's three penalty clauses would have to be read as alternative completions for the offense definition begun in the initial paragraph, and each completed alternative, taken as a whole, would then be read to define a separate criminal offense. We believe that's exactly what happened there, that if you take everything before the dash, you do not have a criminal offense. It does not say it's unlawful, it does not say it is prohibited, it does not say it will be punished in a certain way. It is only when you go past the dash to 1, 2, and 3 that you get alternative completions to that... to the introductory part, alternative offenses. But if the Court should not rule in our favor on the statutory construction question, on the constitutional question, I'd like to make one more try, if I could, on what I... what we believe is required. It appears that what the legislature does in enacting a criminal offense is, it tells the citizenry that if you engage in particular conduct, then you will be sentenced... you will potentially face a particular sentence, a certain loss of liberty, and then we know that behind that, behind the Constitution is the idea that those facts, that to establish that conduct which leads to that loss of liberty is something that goes to a jury and is proved beyond a reasonable doubt. We think that what the Court should hold is, if there's any fact that the legislature singles out from a transaction, from the citizen's conduct, whether it is an action, whether it is a mental state, or whether it's a result, that should be treated as an element of the offense, and it ought to go to a jury. A jury trial is not something that has to be avoided. A jury is... under our jurisprudence is supposed to be the most reliable determiner of that, and we would have a higher... this... the whole idea is kind of, if we can hide these as sentencing factors, we won't let a jury deal with them. That seems to me contrary to our Constitution, to the values that we have in proof beyond a reasonable doubt and jury trials, and I think what I've suggested to you would fit very easy. All it means is that there would be a different definition given to the jury and they would play their traditional role of making factual findings about the defendant that subjects that defendant to a particular punishment. I think that that is... that seems to me that's consonant with our Constitution and with those valued principles, and this trying to somehow say we can treat it differently, we can call it a sentencing factor, we can go over the standard, we can get the jury out of it, just is contrary to what we think criminal offenses are and what they mean to our citizens. They should know, if you do this, you will have a right to have a jury determine it, and if you... and if they find that you've engaged in that conduct, then you could be sentenced in this particular way.
William H. Rehnquist: Thank you, Mr. Denvir. The case is submitted.
Speaker: The honorable court is now adjourned until tomorrow at ten o'clock.