Warren E. Burger: Mr. Clagett, you may continue. You have 14 minutes remaining.
Brice M. Clagett: Mr. Chief Justice and may it please the Court. I have one or two things to say about each of the Solicitor General's four arguments. First, the alleged preclusion by California, he says if I understood him correctly that California holds only that if a state has no historic title and the Court must decide in the absence of such a title then the federal interests are stronger and would prevail. He disclaims as I understood in many argument that the federal interest would require overriding in a historic title because the shelf is in necessary appurtenance of federal constitutional powers. This fights in the face however of his other argument that even if the states had in historic title at the ratification of the Constitution they then lost it. They would lose it surely only if it was necessary for the federal government to have it, to protect its constitutional interest. And if it is thus necessary, how can Congress give it away. The Solicitor General, I submit cannot have it at both ways. If Congress was free to give part of the shelf to the states in 1953, then shelf ownership is not necessary to federal powers as he admits, and since it is not necessary then the Constitution would not have taken on historic state title away.
Warren E. Burger: This, in your view then it is not within the power of the sovereign to decide in what particular instances it might be necessary and in other instances that it could be yielded in part that that is not within the broad sovereign power.
Brice M. Clagett: Not in the event of an antecedent historic title Mr. Chief Justice. It seems to me that a title to property which was vested in a state before and at the time of the revolution could only be taken if there were some constitutional necessity for taking it.
Warren E. Burger: But Congress in passing that Act assumed and of course acted on the assumption that it had the title, did it not?
Brice M. Clagett: Yes, Your Honor and that's precisely why the Act has to be unconstitutional if Congress was wrong on that point. There's no dispute here as I understand it that if the states did have a vested title and property then the Outer Continental Shelf Act is unconstitutional. I take it the point concedes that. I might add that the Congress did its best to restore to the states all the title which it was then aware that the states had. Probably, because no valuable resources as of that time had been discovered in the Atlantic Ocean, nobody done his homework and nobody knew what the history was and the states were not then articulating their claim very well. So, Congress passed that Act under a misapprehension. It intended to and it thought it was restoring to the states all the title they had.
Potter Stewart: Which Act, the Outer Continental Shelf Act?
Brice M. Clagett: These are the -- both Acts taken together.
Potter Stewart: Both Acts taken together?
Brice M. Clagett: Yes.
Potter Stewart: Right.
Brice M. Clagett: I would add that there is no need for you to overrule the holding of California in order to decide for the states here. That holding of course was the California did not own the three-mile belt. If you hold in our favor on the basis of an historic title, then that holding would not apply to any state which might California lack such a title. To be sure, California and other states might renew their claim but the "equal footing" doctrine would require them to have the same amount of shelf as the Atlantic states. But the Court could well hold as it did in Alabama versus Texas quite clearly that the "equal footing" doctrine requires nothing of the kind. It does not require that every state own an equal amount of Continental Shelf any more that it requires that every state have its large of land territory as the State of Texas and the State of Alaska. I think I fail to make myself altogether clear yesterday as to the circumstances in which if the Court should decide in our favor, federal intervention in the shelf would require compensation to the states and the circumstances in which it would not. Now as I see at three possible situations. One, the federal government takes oil or there shelf resources owned by the states for its own use. That plainly would be a taking and would require compensation. Two, the federal government by treaty agrees with other nations that the Continental Shelf under exclusive American ownership is not as large as it is now considered to be. Thereby, cutting of state ownership as to some parts of it that would a federal act to adjusting boundaries or settling international law in the exercise of the foreign affairs power. It would not in my submission be a taking and it would not require compensation. I might add that the question of that question is wholly academic at least as to the foreseeable future because the whole tendency in international law and policy at the moment is to expand Continental Shelf rights not to cut them back. Three, the federal government in the interest either of national defense or for economic reasons tells the states that they must develop shelf resources faster or differently from what they are doing. The state’s retaining ownership and still receiving the revenues that would not be a taking quite clearly and would not require compensation anymore for example; than federal resource allocation during World War II did or any of the other kinds of paramount power that the federal government habitually assert especially in times of national emergency overall the resources of the country. It would be perfectly proper federal regulation thus a decision for the states here will in no way retire or hamper Continental Shelf exploitation or development if the national interest is found to require that. Next, as to the Solicitor General's argument that the states never acquired any property interest in the shelf, it is hard to respond to this because it was stated almost entirely in conclusory terms without reasons or facts. The Solicitor General did make one specific statement however. He said that the hundred-mile rule was recognized on only two occasions by -- and the Earl of Salisbury to the contrary. The hundred-mile rule was declared by among others the following eminent British authorities: William Welwood in 1613, Gerald Malynes in 1622, Thomas Neal in 1704, Sir Charles Hedges, Admiralty Judge and Secretary of State, in a formal legal opinion of 1713, and Josiah Burchett, Secretary of the Admiralty in 1720. Further proof is found in the Colonial Charters themselves beginning with the Charter of 1606 which created a hundred-mile territorial sea all up and down the coast of these very defendant states. As shown in our supplemental brief in detail and addition the overwhelming consensus of international law authority throughout the 17th and 18th centuries was in favor a hundred-mile territorial sea. Finally and perhaps conclusively, 13 leagues which is virtually identical to a hundred miles was the boundary asserted and enforced by Britain throughout the 17th and 18th centuries for its territorial sea and exclusive fishing rights in these very waters here under dispute in North America. As to -- that boundary was incorporated into the Treaty of Utrecht in 1713. But Britain regarded the 13 leagues applicable all up and down the coast of these states as well. The proof is our exhibit 327, in map volume 3 of our appendix which is the British copy the very -- British map used in the Peace Negotiations of Paris in 1782-83. That map shows the 13-league boundary drawn all the way down the coast of these defendants' states. I can only -- I have no time to discuss the Solicitor General's assertions about the Australia and Canadian cases. I can only say that we submit they are widely inaccurate. I can only beg to the Court to study pages 477 through 85 of our supplemental brief on that subject. Next, the Solicitor General contends its federal government would've succeeded to any Continental Shelf rights than in existence at independents or sometime around there. I can confess as I heard the Solicitor General was eloquent about the sovereignty of the First Continental Congress. I was wondering why we were not celebrating the bicentennial this year instead of waiting for some later wholly ancillary event. On the point of whether the states were ever fully sovereign, the key to understanding the events of that period we submit is that the states were regarded as identical to the United States not the United States being a distinct and separate national government in any sense. It was the United States of New Hampshire of Massachusetts, etcetera. The term was always spelled out in full in that fashion. Of course the states carried on foreign relations not only separately which they did to a quite considerable extent but primarily through their joint representatives. Congress was the states. Congress was made up of ambassadors from the states known as congressman. Every treaty that Congress made was made in the name of each one of the states enumerated separately. The nature of the confederation was exactly what the articles of confederation and carefully chosen language said it was a firm league of friendship. And it was universally recognized that the federal league or confederation was a group of several sovereign states which retain their full individual sovereignty that tell in -- who the international lawyers best known to the founding fathers expressly so stated. Chief Justice Marshall agreed as I have mentioned yesterday in Gibbons versus Ogden. He declared that the states "were sovereign, were completely independent and were connected with each other only by a league." There's nothing to the contrary in Penhallow versus Doane which merely holds that Congress had the power to erect an admiralty court with appellate jurisdiction from the state highest courts for the reason that the states and in particular New Hampshire, the state which was there contesting it had consented to it. There's not a word in the case of any inherent federal sovereignty derived from the crown or if any federal powers other than those granted by the states.
Potter Stewart: There is something to the contrary in the Curtiss-Wright opinion?
Brice M. Clagett: Yes, indeed, there is Your Honor.
Potter Stewart: Do you think that's wrong? You too?
Brice M. Clagett: Yes, sir. And of course it purports to cite Penhallow but as Julius Goebel said in his first volume of the history of this Court some slightly sloppy language in Penhallow was then used Curtiss-Wright to support, I forgot the exact words in utterly inadmissible version of historical events. Even if the Solicitor General were right about sovereignty, even if he were right which he isn't, the historical record and the decisions of this Court show beyond any question whatever that the United States was never regarded as acquiring any territory or property other than in right of one of the individual's states and nothing was ceded to the federal government but what was expressly ceded. The Constitution draws the sharpest possible distinction between the territory and property of the states which remain intact and the paramount rights of the federal government which were superimposed upon them, the ratification of the constitution transferred no territory and no property. Finally, as to the Solicitor General's claim that our Continental Shelf rights were destroyed by the three-mile limit. Our briefs and the testimony at the trial particularly that of Judge Philip Gesoff who is the world’s leading authority on the subject proved beyond the shadow of the doubt, that the Solicitor General’s argument is wrong. The three-mile limit applied only to surface waters never to the seabed. As this Court itself said in the second Louisiana case, maritime boundaries to different distances are recognized for different purposes. The United States never construed the three-mile limit as cutting off seabed rights. Wholly to the contrary in the bearing sea arbitration, the United States took it is a fundamental principle that the three-mile limit had no application to seabed rights. And the United States like every other nation asserted exclusive ownership of seabed resources beyond three miles wherever they existed and were exploitable as in the case of the Philippine Pearl Fisheries.
Potter Stewart: When was the three-mile limit association?
Brice M. Clagett: The three-mile limit was first mentioned by anyone as a boundary for neutrality purposes only by Thomas Jefferson in his letters to the ambassadors within in a year or two of 1790 and 1791. It was never applied to anything more than neutrality purposes for some decades thereafter and it was never applied to the seabed. Finally, I must say that we would of course like the opportunity to respond to whatever the Solicitor General may say about further proceedings on this paper he was going to file. We would therefore ask the Court to set a short time limit for his paper and one for our response.
Warren E. Burger: Thank you Mr. Clagett. When the Solicitor General and if he files a further proceedings, you'll have 10 days to respond to it. Thank you gentlemen. The case is submitted.


William H. Rehnquist: We'll hear argument now in Number 99-478, Charles C. Apprendi, Jr. v. New Jersey. Mr. O'Neill.
Joseph D. O'Neill: Mr. Chief Justice, and may it please the Court: This case is about the erosion of the jury by the New Jersey legislature. The statute at issue in this case violates the Fourteenth and Sixth Amendments by permitting the judge to consider or assess a defendant's mental state by a preponderance of the evidence and sentence that person to a term of up to double the time permitted upon conviction of the predicate crime. Here, petitioner pled guilty to three crimes, but was sentenced on four. In Jones v. the United States, this Court constructed a proposed test for constitutionality of the statute as to determine whether the statue creates a separate element of a crime or a sentencing factor. Any fact, other than prior conviction, which increases the maximum sentence, implicates constitutional protections of beyond a reasonable doubt, notice by--
Sandra Day O'Connor: Well, what do you do with the capital sentencing schemes in a State like Arizona, for example, where a person can be convicted of first degree murder and then the judge does the sentencing and is allowed to increase the sentence to a death penalty, set it at death, if it was done for, let's say, pecuniary gain, some factor that the judge determines, and this Court has upheld that kind of a scheme. Now, under your theory that, too, would be invalid if we were to accept what you've just been saying.
Joseph D. O'Neill: --I suggest not, Justice O'Connor, because my understanding of the statutes extant is that they... some of them provide for the death penalty, but that's the maximum, so in States such as those... I'm not intimately familiar with Arizona, but it is the States with which I am familiar, those penalties would be within the maximum and call for proof beyond a reasonable doubt to a jury before the judge sentences.
William H. Rehnquist: But in Arizona the jury simply finds a person guilty of first degree murder and leaves the option of life imprisonment, or death, to the judge, so that clearly the judge is imposing a sentence that was perhaps within the range the jury... but it could just as easily have been life.
Joseph D. O'Neill: I agree with that, Mr. Chief Justice. However, again, it's within the maximum provided by the statute that the jury knew about, presumably, before they found the defendant guilty beyond a reasonable doubt.
Sandra Day O'Connor: The jury is told and instructed, don't consider the sentence. That's not your job. It's up to the judge. Don't consider that. You just determine whether this person convicted... should be convicted of first degree murder.
Joseph D. O'Neill: Yes, Justice O'Connor. However, it's my understanding that a statute does provide for not only life, of course, but also, as you point out, death, but within the maximum sentence.
Antonin Scalia: Mr. O'Neill, of course, until our death penalty cases in the 1960's, had not the traditional practice been that a judge in a case where the sentence was up to and including death had the discretion to impose the death penalty or not, or the jury had the discretion to impose it or not?
Joseph D. O'Neill: Justice Scalia--
Antonin Scalia: Wasn't that the traditional rule against which the Sixth Amendment was adopted?
Joseph D. O'Neill: --It is, sir.
Antonin Scalia: And it was our jurisprudence that created the new factor that you could not impose the death penalty unless there were some special facts which had to be found, either by the judge or by the jury, that would justify it, so this is all a creation of this Court. It has nothing to do with what the Sixth Amendment meant when it was adopted, does it?
Joseph D. O'Neill: I agree with that, Justice Scalia.
Stephen G. Breyer: Maybe I can get at the same question that Justice O'Connor and the Chief Justice had in a slightly different way. Imagine that I'm in Congress and, as Member of Congress, I tell you the following. You're my drafter. I say, here's what I'd like to do. I'd like to write this criminal statute for bank robbery so that the sentencing works as follows, so that where the gun is loaded, there's a higher sentence. Where the gun isn't loaded, there's a lower sentence. That's how I want the sentencing to work. The crime is bank robbery, but I want these judges to be pretty uniform, and I want them all to give... you know, they have a bigger range where the gun's... you see, where the gun is loaded, and a lower range where it's not loaded. How do I draft it? Can I do it?
Joseph D. O'Neill: Justice Breyer, yes, that would constitutional so long as--
Stephen G. Breyer: How do I draft it? What do the words say? Let's imagine, you know, I want them to have up to 3 years if the gun isn't loaded, but up to 5 years if it is loaded.
Joseph D. O'Neill: --The sentence... the drafting goes something like this, in crude language, that the maximum penalty for commission of such-and-such crime is 5 years. However, if he then is convicted only of such-and-such, it is a maximum of 3 years.
Stephen G. Breyer: All right. Then if I can do that, then what will happen if you win this case is all that has to happen is that Congress goes back, redrafts all the drug laws, and in the meantime I guess we have new trials of everybody who's been convicted, but they just... it's just a drafting matter, is that right, that all they have to do is write the same thing, but instead of saying the thing goes from 3 to 5 years, 3-year max unloaded and 5-year max loaded, what they do is, they write 5-year max, period, but no more than 3 if it's unloaded. It's just drafting. Is that what it is?
Joseph D. O'Neill: Well, Justice Breyer, I think that Winship spoke in terms of formalism but prescribed against that, so--
Antonin Scalia: Excuse me. Are you saying that in that case, with that kind of a statute, you would concede that in order to get 5 years, in order to impose 5 years, you would not need a jury finding that the gun was loaded?
Joseph D. O'Neill: --No, I would not concede that, Justice Scalia. I would concede only--
Antonin Scalia: But that's the premise of the question, I thought.
Stephen G. Breyer: Yes, it is.
Joseph D. O'Neill: --Well then, I would--
Antonin Scalia: I didn't think you were--
Joseph D. O'Neill: --I would say only, Justice Scalia and Justice Breyer, that there would have to be the constitutional protections of proof beyond a reasonable doubt as to a jury.
Stephen G. Breyer: --Okay, so what you're saying is, I can't... if I'm Congress, I can't--
Joseph D. O'Neill: You can't, under those--
Speaker: --Fine.
Stephen G. Breyer: --prescribed circumstances. Fine. If I can't, my question would be, why not?
Joseph D. O'Neill: Because the constitutional safeguards of beyond a reasonable doubt, and to a jury, are paramount.
Stephen G. Breyer: I've got that point. Now my... I'm trying to get you down a little line of questioning here, and then I'd say if that's true, then I guess exactly the same thing is true of the Sentencing Commission does the 3-5 year business, and again I'd say exactly the same is true if a judge does it, which brings us back to Justice O'Connor. Now, how... I mean, on that line that you've just taken, if I agree with you, I guess I'm holding the Sentencing Commission unconstitutional and, indeed, I guess I'm holding as well unconstitutional the situation where a judge says, defendant, I've looked at the presentence report. It says your gun was loaded. You can dispute it, but if the gun is loaded, 5 years. If it isn't, three. So you have three situations, judge, Sentencing Commission, Congress. You've said Congress can do it... cannot do it. Can the commission? Can a judge?
Joseph D. O'Neill: Well, Justice Breyer, in response to that question, I would say this. If I can use the analogy in the Federal statutes in reference to drug... drugs as to quantity and quality. Now, I have a fallback position, and that is this, that if the test were something like this, if the maximum sentence is increased and there is required an assessment of the mental state of the defendant, then I think the quality and quantity problems with the drug statute would not be affected. I respectfully suggest, Justice Breyer, that the Federal sentencing guidelines would not be impacted by the proposed standard, proposed by this Court in Jones.
Ruth Bader Ginsburg: Mr. O'Neill, I assume you're saying that as long as it's within the upper range that is specified by the legislature, but if you will, instead of engaging in things that you may be less familiar with, let's look at the very statute that you're dealing with, and there are seven factors that would lead to this doubling of the penalty, and the racial/gender animus is just one of them. In that list of seven, which ones are not encompassed within your constitutional objection? Which one... even if you won this case, which one, if any, could remain as the New Jersey legislature set it up?
Joseph D. O'Neill: Justice Ginsburg, I would say that the way it's set up, all of them would remain.
Ruth Bader Ginsburg: Well, not this one.
Joseph D. O'Neill: Not this one.
Antonin Scalia: Wait, I don't understand. All of them... they're all valid except this one?
Joseph D. O'Neill: Well, if we're saying in terms of the question, Justice Ginsburg and Justice Scalia, that if we're talking about race, color, gender, handicap, religion, sexual orientation, or ethnicity, then I think all of them require the same constitutional guidelines.
Ruth Bader Ginsburg: Well then, but what about another one that operates in the same way, is used or was in possession of a stolen motor vehicle? That would be found by the judge on a preponderance, not beyond a reasonable doubt, and yield for the defendant the same thing.
Joseph D. O'Neill: If there's a presumption that the underlying crime was found to be violated by the defendant beyond a reasonable doubt to a jury, yes, because it would be within the maximum sentence.
Antonin Scalia: I don't understand that. I don't understand your answer. Would a jury have to find beyond a reasonable doubt that a car was used?
Joseph D. O'Neill: Yes, Justice Scalia.
Ruth Bader Ginsburg: But not under the statute. The statute sets it up the jury finds assault or whatever is the underlying crime, and then the judge, under subsection (f), the one immediately following subsection (e), your subsection, the judge is instructed that if this crime, this assault was committed and the defendant was at the time in possession of a stolen motor vehicle, then we get kicked up from 5 to 10, to 10 to 20. So I'm asking you to concentrate on the very next section of the same statute and tell me, you said... you said there was a distinction between the two, and I don't understand why the one would have to go to the jury and the other would not.
Joseph D. O'Neill: Well, perhaps I didn't state my position clearly enough. My position is this, Justice Ginsburg, that whenever there is a question of fact which raises the maximum sentence the defendant faces, that requires a constitutional safeguards of beyond a reasonable doubt, and prove to a jury, as well as fair notice.
Ruth Bader Ginsburg: Well, suppose that the question of fact is whether the defendant used or was in possession of a stolen motor vehicle?
Joseph D. O'Neill: I would say that it's a fact that's a jury question.
William H. Rehnquist: Well, what about McMillan v. Pennsylvania, where you're talking about crime done with possession of a gun?
Joseph D. O'Neill: Well, that's a question, Chief Justice, that's easily ascertainable as it is the issue of prior conviction, Almendarez-Torres.
William H. Rehnquist: Well, and wouldn't possession of a motor vehicle, a stolen motor... be equally easily found out?
Joseph D. O'Neill: Most respectfully, Chief Justice, I don't think so. I think the issue as to whether possession of a stolen motor vehicle occurred or not is subject to some variables to which the possession of a firearm for an unlawful purpose is not. Also--
Sandra Day O'Connor: Why not? I mean, that's a fact question, possession of a firearm for an unlawful purpose.
Joseph D. O'Neill: --Well--
Sandra Day O'Connor: There you are.
Joseph D. O'Neill: --Justice O'Connor... I'm sorry.
Sandra Day O'Connor: Total fact-based issue.
Joseph D. O'Neill: Justice O'Connor, it seems to me that in McMillan, it was simple. It was objective. There was no question. There was a shooting of a couple of people involved--
Sandra Day O'Connor: But there's no logical distinction. I don't see how you can draw that distinction at all.
John Paul Stevens: Well, McMillan, they didn't raise the maximum sentence, either. It was within the maximum.
Joseph D. O'Neill: --They did not raise the maximum sentence--
David H. Souter: Yes.
Joseph D. O'Neill: --in McMillan.
David H. Souter: Yes. Right, but--
Joseph D. O'Neill: They required only a sentence within the minimum.
Sandra Day O'Connor: --But that gets you right back to Justice Breyer's drafting question. If the legislature were to start with the higher sentence and then say, but if no gun is used, 3 years, otherwise, 5, that ought to be all right. I mean, that's the way you're articulating the test.
Joseph D. O'Neill: Yes. I agree with that, Justice O'Connor.
David H. Souter: But I think, Mr. O'Neill--
Antonin Scalia: --You said it was not all right.
Joseph D. O'Neill: But I--
Antonin Scalia: Are you going back on that now?
Joseph D. O'Neill: --I say this, Justice Scalia, that all of these requirements must be within the constitutional limits as set forth in cases like Patterson v. New York. There is a limit to which the legislatures can go.
Antonin Scalia: Well, what's your answer to Justice Breyer's question? Just switching it from an affirmative to a negative, does that make the difference? Not... if you find the fact you get more, but if you don't find the fact you get less. Does that make the difference?
Joseph D. O'Neill: Yes. There's a question of formalism, I think, implied in Justice Breyer's question. I think that that's been prescribed by this Court previously.
Antonin Scalia: Oh, well, we're not really arguing about very much, then.
John Paul Stevens: I-- --Of course, how would that example apply to a case like this? I mean, we're talking about all sorts of different cases, but here the extra fact to be proved was a specific kind of intent. How can you write a statute that would make that a defense? I didn't have that intent? I mean, those examples just don't fit this case.
Joseph D. O'Neill: Yes.
John Paul Stevens: We should really try to decide what to do with this case, it seems to me.
Joseph D. O'Neill: I agree with that, Justice Stevens. I do.
Stephen G. Breyer: Well, I'd like to ask one hypothetical.
Anthony M. Kennedy: Just tell me what the rule was at the common law. Two people tried with kidnapping. One of the kidnappers tormented the victims, threatened them, pushed them around. The other was rather passive. They're both simply tried with kidnapping. At sentencing, the judge said, now, you, defendant A, caused much more torment and grief and suffering. I'm giving you life. You, defendant B, were rather passive. I'm giving you 20 years. Anything wrong with that at common law?
Joseph D. O'Neill: If life is within the maximum sentence, no, there's nothing wrong with it.
Anthony M. Kennedy: Okay. Now, suppose the legislature specifies that if torment is called... is caused, it would be life, and if not, 20 years, then there's a constitutional requirement?
Joseph D. O'Neill: I think so. I think the jury--
Anthony M. Kennedy: But then you can't say, as you did at the outset, that Congress is eroding the jury sentencing. It seems hard to erode the jury sentencing when all Congress has done is provide some... or the legislature has done is to provide some guidance to its judgment... judges in sentencing.
Joseph D. O'Neill: --Well, it seems to me that the statute at issue does violate the Fourteenth and Sixth Amendments because, by a mere preponderance of the evidence, and I suggest it should be by proof beyond a reasonable doubt, it permits a defendant to assess a mental state of the defendant and submit that person to a sentence of up to double that required in the predicate crime.
William H. Rehnquist: What if it were proof beyond a reasonable doubt, but to be... the fact to be found by a judge, rather than a jury?
Joseph D. O'Neill: That might very well be found by your Court to be constitutional. However, I really believe that that's not enough. A jury question is involved here.
Antonin Scalia: Why would that be okay? I don't understand that.
Joseph D. O'Neill: Well, because--
Antonin Scalia: I mean--
Joseph D. O'Neill: --it satisfies the constitutional test of--
Antonin Scalia: --Because we're illogical or something? I mean--
Speaker: [Laughter]
David H. Souter: No, aren't you resting on the distinction that is inherent in McMillan?
Joseph D. O'Neill: --I am.
David H. Souter: Yes, because--
Joseph D. O'Neill: Yes, Justice Souter.
David H. Souter: --you... depending on whether you are raising the jury issue or the due process notice/reasonable doubt issue, you may get different results in different cases, and McMillan is an example, I suppose.
Joseph D. O'Neill: Yes. As long as it's within the maximum, not outside the maximum.
Stephen G. Breyer: Is... when you said mental state, isn't this motive a mental state that is primarily... motive is a mental state that's primarily used for sentencing. I couldn't think of a single statute where motive is actually an element of the crime. Intent is a motive of the crime. Sometimes intent does give you a motive, but motive itself, he did it out of hatred, he did it out of revenge, he did it out of race hatred, he did it because the person killed his father, all those are backward-looking, or emotional motives. I've never... can't think of a single statute where that's an element of a crime. I mean, of course, there are other States that have made it in this instance, but isn't it a traditionally sentencing factor?
Joseph D. O'Neill: It is, Justice Breyer. However, there are cases... there have been cases arising out of this Court, like Haupt v. United States, where motive was found to be a necessary ingredient of a crime charged, but traditionally I agree with Your... Justice Breyer that traditionally motive is a sentencing factor.
Antonin Scalia: It's a discretionary sentencing factor, though, traditionally, isn't it?
Joseph D. O'Neill: Yes, Justice Scalia.
Antonin Scalia: It's up to the judge. If he wants to take motive into account, he may, and if he doesn't want to, he need not, and the defendant who has the motive is subject to up to 50 years, and the defendant who does not have the motive is subject up to 50 years. Isn't that correct?
Joseph D. O'Neill: It certainly is, Justice Scalia.
Antonin Scalia: So why... what... I don't... what difference does it make whether it's a traditional sentencing factor?
Joseph D. O'Neill: Well, I don't think it makes any difference, because I think while a lot cases have distinguished between motive as opposed to purpose, intent, mens rea, mental state--
Ruth Bader Ginsburg: But may I stop you there, Mr. O'Neill, because you seem to be conceding that this is a sentencing factor, and then not traditional, but I'm looking at the words of the statute. It doesn't say motive. It says, with a purpose to intimidate, and it seems to me there are many criminal statutes, burglary statutes, for example, that use those words, with a purpose to, and the jury has to find that purpose. So why are you conceding that this is ordinarily for the judge and with a purpose... in answer to Justice Breyer, who said there are no statutes that make this... that this is extraordinary, but with a purpose to, it seems to me is in a number of statutes.
Joseph D. O'Neill: Justice Ginsburg, I'm not, most respectfully, conceding that. All I'm saying is this, that while the statute in New Jersey uses the term, purpose, it could have used motive. It did not. It used the term, purpose. To me, they are... they should be considered, whether it's motive, purpose, in this particular statute the same, although traditionally I agree that we're talking about modus, motive, we're talking about mens rea, we're talking about intent, mental state... they're all the same. Some people have said in their opinion, some jurists, that motive is different, but here I don't think it makes a difference. What's important here is that there is a sentence to a much... or a... an exposure to a much higher or stiffer sentence if there is proof that a person committed a crime with a purpose to intimidate because of race. That requires--
Ruth Bader Ginsburg: --How about for the purpose of pecuniary gain? That's another one on this laundry list that kicks you up into the next sentencing--
Joseph D. O'Neill: --Yes, against person or property I think the statute says, Justice Ginsburg. --Yes.
Ruth Bader Ginsburg: But isn't that... wouldn't at least that one have to be decided the same way as this one?
Joseph D. O'Neill: Oh, I think so, yes.
Ruth Bader Ginsburg: I thought you told me that all the other ones would stand except this one, on your argument.
Joseph D. O'Neill: Well, I did say that, but I guess I was confining my consideration to the facts and the law in this case, which have to do with purpose to intimidate an individual because of race.
Ruth Bader Ginsburg: So I take it now, on rethinking, you have concluded that some on this list would have to go the same way, and that maybe for pecuniary gain is one of them.
Joseph D. O'Neill: I think so.
Stephen G. Breyer: In terms of the basic fairness of it... and I think Justice Ginsburg had a good point, actually.
Speaker: This is written in terms of purpose, so whether it's intent, or purpose, or motive, treat them the same.
Stephen G. Breyer: But you've represented clients, I take it, where sometimes perhaps in your career you had a tough choice. You wanted to say, well, the client was in Chicago, but just in case he wasn't, I want to tell you it was only 300 grams of drugs and not 400. Now, that... the client sometimes is in an awkward situation with that kind of... and why is it fundamentally unfair for Congress, or a legislature, to say, look, race hatred is very emotional... very emotional... and you inject that into the trial, and suddenly you'll discover people being very emotional about the conclusion. We think it's fairer for defendants, as well as for victims, to take that issue out and make it a sentencing factor for the judge. Is that fundamentally unfair to make that decision?
Joseph D. O'Neill: Yes, Justice Breyer.
Stephen G. Breyer: Because?
Joseph D. O'Neill: Absolutely.
Stephen G. Breyer: And if it is fundamentally unfair, I guess it's just as fundamentally unfair if the Sentencing Commission makes it. In fact, it's worse, because it's not just a maximum, it's a minimum, or the sentence you're really going to get, and I guess it's even worse when a judge does it, on his own.
Joseph D. O'Neill: Well, so long as the statute does not provide for an increase in the maximum sentence, then I think it's okay to have a mandatory minimum sentence, as in McMillan.
Speaker: You should actually be grateful for this--
Stephen G. Breyer: --You see, that's what's actually bothering me, because a mandatory minimum is much worse for defendants than an increase in the maximum. It's much worse, and a sentencing guideline which says, do it in the ordinary case, is much tougher on defendants than just increasing the statutory maximum. We both know that. And therefore, why, in terms of fairness, do you say the Constitution prevents the increase of the statutory max, not the minimum mandatory, which is much worse, and not the sentencing guideline, and not the judge doing it on his own?
Joseph D. O'Neill: Justice Breyer, I say this, that I don't concede that it's necessarily worse to have a mandatory minimum. I think it's... it can be, it cannot be, but I think really it's much worse to be exposed to a term of imprisonment significantly greater than that which you faced at the time you pleaded to the indictment.
Antonin Scalia: Mr. O'Neill, I thought we were discussing the meaning of the Sixth Amendment, not the philosophical question of which is worse than something else, and I thought you were resting primarily upon the unbroken tradition of the Sixth Amendment that if you are liable for an increased penalty, the fact that makes you liable for that increased penalty has to be found by the jury.
Joseph D. O'Neill: That's precisely my position.
Antonin Scalia: So--
Joseph D. O'Neill: That's my bedrock position, Justice--
Antonin Scalia: --whatever the philosophical pros and cons of that may be, your argument is, that's what the Sixth Amendment meant. That's what its tradition has been throughout its history.
Joseph D. O'Neill: --Well put. That's exactly my position, Justice Scalia. [Laughter] Thank you.
Anthony M. Kennedy: But you agreed--
William H. Rehnquist: --Shall we charge Justice Scalia's question to your time?
Speaker: [Laughter]
Anthony M. Kennedy: But you agreed with me that under the common law and the kidnapping hypothetical the judge would have the discretion to sentence the defendant who caused torment to the victims much more severely than the other defendant. You agreed with that.
Joseph D. O'Neill: So long as it's within the maximum, not extended beyond the maximum, Justice--
Ruth Bader Ginsburg: So all you're doing--
John Paul Stevens: --You wouldn't agree if there was--
Anthony M. Kennedy: --All you're doing is saying that the legislature cannot prescribe what judges will do. That's what you're saying.
Joseph D. O'Neill: --Well, within constitutional limits they can. That's the State's rights, to define crimes and punishments, but only within constitutional limits. 0....
William H. Rehnquist: You can argue all by yourself, without any questions.
Speaker: [Laughter]
Joseph D. O'Neill: Well, it would seem to me, Mr. Chief Justice, that the words of the statute, with purpose to intimidate, are the very essence of the statute in question here, and purpose intent has to be an ingredient of the crime, and when purpose or intent is an ingredient of a crime, its existence is a question of fact. That is a jury question. A purpose, a question of purpose or intent can never be ruled as a question of law, but it always must be submitted to the jury, and the jury... the New Jersey statute here is unconstitutional because it takes from the defendant the constitutional rights to proof beyond a reasonable doubt to a jury after fair notice, and it takes from the jury the very essence of its existence, which is that as a fact-finder and, finally, it seems to me that if a person is stigmatized by conviction as a racist, that should be rendered by the broadest cross-section of the community, which is the jury.
Ruth Bader Ginsburg: I take it, Mr. O'Neill, that you would, on your reasoning, also find New Jersey's harassment statute unconstitutional because it does the same thing. It says a person who commits this crime, if he acted with a purpose to intimidate because of race, color, religion, et cetera.
Joseph D. O'Neill: Well, Justice Ginsburg, it's interesting to me to note that for that lesser crime in New Jersey, either sexual harassment involving race or racial assault, that the stringent requirements are much more severe, because it... the statute requires proof beyond a reasonable doubt to a jury on those minor crimes, whereas this major crime, this very serious crime, it doesn't.
Ruth Bader Ginsburg: I don't see that. The section that I'm looking at is set up... uses the same words as the section that we're dealing with here.
Antonin Scalia: Where is this? Is this in the papers somewhere?
Ruth Bader Ginsburg: This is the racial harassment statute for which this person was indicted, but he didn't plead to that, is that correct?
Joseph D. O'Neill: Yes, Justice Ginsburg.
Antonin Scalia: I don't know what we're talking about here.
Ruth Bader Ginsburg: There's another statute in New Jersey... I'll give this to Justice Scalia.
Joseph D. O'Neill: Do you want me to address that, Justice Scalia?
Antonin Scalia: I haven't read it before.
Ruth Bader Ginsburg: It... I assume it would go the same way because the words are the same, but--
Joseph D. O'Neill: Yes.
John Paul Stevens: --But who has to make the finding of harassment under that other statute, the jury?
Joseph D. O'Neill: The jury... the jury, Justice Stevens.
John Paul Stevens: Well then, that's totally consistent with your position.
Joseph D. O'Neill: It certainly is, Justice Stevens.
Ruth Bader Ginsburg: That's not what the statute says.
Joseph D. O'Neill: Well, my point here, to respond to Justice Scalia's point last, is that when you have a charge, indictable charge in New Jersey for racial assault or racial harassment, the proofs required are beyond a reasonable doubt to a jury, unlike in the case at bar in Apprendi, where you'd have a situation where you only have to prove by a preponderance to a sentencing judge that there's a violation of purpose with intent to intimidate because of race. That's the difference. They have a higher standard of proof for a lesser crime in New Jersey than they have for the much stiffer crime, lesser proof, preponderance. That's unconstitutional, I respectfully suggest.
William H. Rehnquist: Do you wish to reserve the balance--
Joseph D. O'Neill: I would--
William H. Rehnquist: --of your time?
Joseph D. O'Neill: --Thank you, Mr. Chief Justice.
William H. Rehnquist: Very well, Mr. O'Neill. Mr.... Ms. Gochman, we'll hear from you.
Lisa S. Gochman: Mr. Chief Justice, and may it please the Court: The New Jersey legislature has made clear, and the New Jersey supreme court has confirmed, that the extended term provision of the hate crime statute which addresses motive is a sentencing factor, and not an element of the predicate offense. Motive, as this Court has recognized over 100 years ago, may be probative of guilt, but it is not essential to a conviction unless the legislature chooses to include it as an element of a particular offense.
Antonin Scalia: So I suppose that means that the New Jersey legislature could provide for first degree murder is murder with malice aforethought, and could provide the death penalty for that crime, and could leave it up to a judge to decide whether there was malice aforethought, and to decide that just by a preponderance of the evidence?
Lisa S. Gochman: Respectfully, malice aforethought is not the same as motive. Malice aforethought is that yes, you intended to commit this crime, but even with malice aforethought, the prosecution does not need to prove the defendant's motive, why did he want to commit the crime. He may have wanted to kill somebody because he owed him money, because he made some sort of unwarranted advances. But malice aforethought has always been deemed intention, and part of mens rea, and it's different from motive. Motive goes to the underlying reason. In this case, for example, the defense, by its plea of guilty, satisfied the elements of New Jersey's possession of a weapon for an unlawful purpose.
William H. Rehnquist: Traditionally, as I understand the common law, there was no inquiry into motive. It was just intent.
Lisa S. Gochman: That's correct.
William H. Rehnquist: The motive didn't make any difference.
Lisa S. Gochman: That's correct, so malice--
Antonin Scalia: What about an espionage prosecution? Someone has stolen papers, highly secret papers from the Defense Department. It is treason punishable by death if the reason they were taken was to give them over to a foreign power--
Lisa S. Gochman: --If Congress--
Antonin Scalia: --that is hostile to the United States.
Lisa S. Gochman: --If Congress chose to make that motive an element of that particular crime, then yes, that would have to go to the jury.
Antonin Scalia: No, if... Congress... no, I... Congress chooses not to make it an element. Congress just says, anyone who takes papers from the Defense Department that are classified secret is guilty of an offense, 10 years in prison. However, if the purpose of taking them is to give them over to a foreign power hostile to the United States, the death penalty, and the latter question will be decided by a judge on the basis of whether it's more likely than not. You know, it's a close question, but on balance I think it's more likely than not that he should get the death penalty.
Lisa S. Gochman: Under this Court's capital--
Antonin Scalia: That would be okay?
Lisa S. Gochman: --Under this Court's capital jurisprudence, that would be permissible--
Antonin Scalia: Well--
Lisa S. Gochman: --so long as the jury finds beyond a reasonable doubt the elements of the predicate offense. It then goes to the judge to determine the aggravating factors, including--
Antonin Scalia: --That doesn't shock you, that outcome at all? I mean, that seems to you in accord with our traditions of jury trial and proof beyond a reasonable doubt?
Lisa S. Gochman: --That's in accord with this Court's jurisprudence on death penalty cases.
Antonin Scalia: Death penalty cases are cases apart. I mean, death penalty cases are not in accord with our jurisprudence on anything else, and to... you know, to decide this case on the basis of death penalty cases would be extraordinary.
Lisa S. Gochman: Well, respectfully, Your Honor, if a judge can increase a defendant's sentence from life imprisonment to death based on aggravating factors, and that's constitutional under the Sixth and Fourteenth Amendments, then certainly it would be constitutional to increase the petitioner's sentence by a mere 2 years on a noncapital offense. It's the same... we're dealing with the same constitutional amendments and the same clauses.
John Paul Stevens: No, but the difference is, as Justice Scalia, I guess, has already pointed out, that in the one case the legislature has authorized the death penalty for the facts found by the jury, not in his case.
Lisa S. Gochman: Well, it would be the same thing. The legislature has authorized a higher sentence when the judge makes a--
John Paul Stevens: But only... but in his example, if the additional fact is found by a preponderance of the evidence by a judge, and that can make the difference, in your view, between a 10-year sentence and a life sentence.
Lisa S. Gochman: --It may be disproportionate under another constitutional framework, but it's not unconstitutional within this particular framework of the Sixth Amendment that we're dealing with here. Perhaps it's disproportionate, but this Court said--
John Paul Stevens: What if a legislature had a statute that authorized a crime called wrongdoing, just prove anything wrong, and then it had a... and the jury has to find the wrong, but then the judge is directed to impose a whole range of sentences, depending on what the wrong is, and he has to do it just by a preponderance of the evidence. I suppose that would be perfectly okay.
Lisa S. Gochman: --No. That would probably go way too far. That would be too extreme. It's very vague. It's very overbroad. It wouldn't give notice to criminal defendants of exactly what their conduct was, what the requisite mens rea was.
John Paul Stevens: Well, they could perhaps have a checklist of 95 different things that would qualify as wrongdoing. Any one of those is found, then you turn over the matter to the judge, and from there on it's up to the judge on the basis of the preponderance of the evidence, and no jury required.
Lisa S. Gochman: Well, we're not suggesting at all that we can take away from the prosecutor's burden to prove mens rea beyond a reasonable doubt, or any of the traditional elements of traditional offenses. That's not at all what we're arguing here, so that that hypothetical would, of course--
Sandra Day O'Connor: Well, what is the constitutional line, in your view, about what can be an element, and what can be a sentencing factor? What's the line?
Lisa S. Gochman: --Well, in common law, elements of the offense had to be the mens rea, the actus reis, and the causation, and at least in New Jersey grading provisions are by legislative grace, not by constitutional prerogative, so that you look to the common law, see what the bedrock elements of those particular crimes were, and when the prosecution starts to shift the burden of proof to the defendant, or when the legislature crafts a statute that includes presumptions of guilt, then, of course, we're going too far, but that's--
Antonin Scalia: But there were all sorts of mens rea. You speak of mens rea as though it's one single, narrow thing. There were different mens rea for different crimes, and all that is going on here is that the New Jersey legislature has defined a special mens rea for this crime that gets a higher penalty, namely, among the other mental dispositions, there has to be the mental disposition of committing this crime because of hostility on the basis of race, or whatever the other factors are. That's mens rea.
Lisa S. Gochman: --The crime to which defendant pleaded guilty is possession of a weapon for an unlawful purpose, and it already has a mens rea element and that is, petitioner's purpose, or conscious objective, was to use the firearm against the person or property of another, and he satisfied that element of the offense when he pleaded guilty and said that he fired his rifle into the house of the Fowlkes family in order to scare them. That was all that the prosecution had to prove in order to find this defendant guilty of--
Antonin Scalia: And then New Jersey has added an additional mens rea element and it says, if there's this additional one, this additional mental disposition, we're going to give you a higher penalty, but this second one, we're not going to let it go to the jury. We're going to let the judge find it by a preponderance.
Lisa S. Gochman: --Well, our position--
Antonin Scalia: It's still mens rea. I don't see how you can, you know, single out some things that you can play with this way and other ones that you can't on the basis of some distinction between mens rea and other things.
Lisa S. Gochman: --Two answers to that, Your Honor. First of all, our position is, is that it's not mens rea. Motive is a sentencing factor that does not have to be proved to the jury beyond a reasonable doubt in any prosecution unless the legislature chooses to make it an element of the offense.
Antonin Scalia: And if it makes it an element of defense, its mens rea.
Lisa S. Gochman: No, it's not mens rea.
Antonin Scalia: Oh, it's still a--
Lisa S. Gochman: It's an additional aggravating factor that, by legislative grace, the legislature has required the prosecution to prove.
Antonin Scalia: --Would you call it actus reus?
Lisa S. Gochman: It's not actus reus, it's--
Antonin Scalia: It's neither actus reus, nor mens rea, it's some--
Lisa S. Gochman: --Well, even to the extent, if this Court wants--
Antonin Scalia: --some third thing that we never heard of before.
Lisa S. Gochman: --If this Court wants... well, Your Honor, in Pointer v. United States back in 1894, I believe it was, this Court held that motive is never an essential element of the crime, and that was murder in that particular case.
David H. Souter: Well, it has, but hasn't it also been the case traditionally that motive... and let's just stick to motive for a minute... has never had the significance that it has under the New Jersey statute. The motive, so far as I know, has never traditionally been the difference between 10 and 20 years and if, therefore, the motive is not part of the definition of the crime, and it does not go to the permissible sentence, the law in effect sort of shrugged and said, so what, it's not that important to anything that is essential in the constitutional structure. But New Jersey has chosen to give it a very different role, and therefore I don't see why the traditional shrug about motive has any relevance today.
Lisa S. Gochman: There are several types of motive that are used in capital juris... in capital sentencing schemes, including--
David H. Souter: Well, may I interrupt you just... your answer just for a second. Is... am I correct that this tradition of shrugging at the motive grows out of a tradition in which the motive does not determine the maximum sentence?
John Paul Stevens: Is that historically true?
David H. Souter: I've been assuming it is.
Lisa S. Gochman: --But under death penalty schemes it can be used to increase the sentence to death.
Antonin Scalia: You said traditionally. Death penalty schemes are a creation of the last 20 years.
Lisa S. Gochman: Well--
Antonin Scalia: I don't consider that much of a tradition.
Lisa S. Gochman: --If the tradition is that sentencing judges had wide discretion in a wide range of statutory... or not statutory, but maximum sentences, then certainly motive--
David H. Souter: Within maximum sentences set by the legislature, or, in an earlier day, under common law crimes. We don't have common law crimes any more, so that to the extent that we have a traditional analogy, I have been assuming that that analogy involved cases in which the motive did not affect the maximum penalty, and I'm right about that, am I not?
Lisa S. Gochman: --I believe that you are.
David H. Souter: Okay.
Lisa S. Gochman: But at that point also judges had wide ranges and could impose a sentence up to life imprisonment based on a person's bad motive, just as the same that a judge could give a lesser sentence--
David H. Souter: Well, they had whatever range the legislature specified, but the range did not increase depending on whether there was a finding of motive or not a finding of motive. The judge simply exercised discretion within the range.
Lisa S. Gochman: --Right, and now what the legislature is doing is simply giving greater guidance to sentencing courts in how to--
David H. Souter: Well, it's doing a lot more than giving guidance. It's increasing the penalty.
Lisa S. Gochman: --When you look at the New Jersey sentencing code... elements of the offenses and the substantive crimes are found in the first part of the New Jersey Criminal Code. Sentencing provisions are in the latter part, so that when a defendant is charged in an indictment and he's given a... he's told what particular offense he has... he's charged with, he then has to go to the sentencing section to find out what types of sentences he may be eligible for. He may be eligible for mandatory minimum sentences, mandatory increasements, or extended terms, so it's... you have to look--
David H. Souter: What is... I'm not getting the drift of the argument. What difference does this make?
Lisa S. Gochman: --That when defendant was charged with possession of a weapon for an unlawful purpose, it was not necessarily under the New Jersey code that all he was going to get at the end of this prosecution was a maximum of 10 years.
David H. Souter: He knows that. He says, I might get 20 years, depending on a certain finding, and that's why I have a right to a jury trial. That's his point.
Lisa S. Gochman: But there are other facts as well that a sentencing court can take into consideration. For example--
David H. Souter: He recognizes that, too, but he says, those facts do not increase the range of permissible sentence from 10 to 20 years, and therefore I accept the fact that under the traditional scheme, which we assume to be constitutional, the judge may find those facts within the range if they are not defined as elements.
Lisa S. Gochman: --In this Court's opinion in Almendarez-Torres v. United States, this Court held that an increase in sentence based on a traditional sentencing factor, there it was recidivism, was constitutionally permissible.
David H. Souter: It sure did, and the Court also emphasized about a half-a-dozen times that recidivism was in a unique place in sentencing jurisprudence. Almendarez-Torres did not purport to create a rule for nonrecidivism factors.
Lisa S. Gochman: Well, of course, it did not have to. It was only addressing that particular statute.
David H. Souter: Well, it didn't have to, but it didn't have to emphasize the uniqueness of recidivism, either. Whether the distinction is a good one or not, it seems to me the point is you can't rely upon Almendarez-Torres for your position because the Court wrote very narrowly in Almendarez-Torres.
Sandra Day O'Connor: Ms. Gochman, now, in my day as a sentencing judge it was not uncommon to have statutes making a crime, let's say of robbery, punishable for anything from 1 year to life. Let the judge decide. And within that range, it was not uncommon for judges to consider such things as the motive of the crime, or the lack of remorse, if that was the case, by the defendant, or, if you had a defendant that just appeared to be absolutely without remorse, and intending to create as much trouble as he could for black citizens, the judge could take that into consideration and impose the life sentence rather than the 1 year. Now, that was traditional, wasn't it--
Lisa S. Gochman: Yes.
Sandra Day O'Connor: --for a long time around the country.
Lisa S. Gochman: Yes.
Sandra Day O'Connor: And what we see today is a series of sentencing schemes that have imposed greater restrictions on the sentencing judge, given them narrower options, is that correct?
Lisa S. Gochman: That's correct.
Sandra Day O'Connor: And within that, the legislative branch has tried to say, well, if there really is lack of remorse or a bad purpose here, you can increase the sentence. Is that what's happening?
Lisa S. Gochman: That's correct and, indeed, in this particular instance the defendant has probably been given more due process than was given under a--
John Paul Stevens: Let me just interrupt you right there.
Lisa S. Gochman: --more discretionary scheme.
John Paul Stevens: If we go back to the general discretion that Justice O'Connor described, and you apply that in this case, it would be permissible for this additional sentence to be imposed on the basis of a report made by the parole officer in the pre... in the post... in the presentence report, wouldn't it?
Lisa S. Gochman: Not under the New Jersey statute, which requires--
John Paul Stevens: No, but I mean, constitutionally it would be permissible. You'd have everything the same, except you don't need preponderance of the evidence. All you need, the parole officer's recommendation, and the judge could rely on that and increase the sentence by 10 years, if you want to go back to the old way of sentencing.
Lisa S. Gochman: --So long as the defendant had the opportunity to rebut that.
John Paul Stevens: Well, he didn't even need the opportunity to rebut it in the traditional, old days.
Lisa S. Gochman: Well, we've come very far from there, and--
Antonin Scalia: Well, let me ask this about the traditional old days. Suppose... did the defendant in the traditional old days have an entitlement not to get more than 1 year if he was shown to be really remorseful?
Lisa S. Gochman: --I'm not sure, Your Honor. I don't know if that sentencing scheme was fit within a particular crime, or--
Antonin Scalia: Gee, you were very familiar with the traditional scheme when Justice O'Connor described it, and--
Lisa S. Gochman: --Well, I'm not sure about--
Antonin Scalia: --all of a sudden it's not clear. It's a traditional statute for this crime, 1 year to life.
Lisa S. Gochman: --Okay.
Antonin Scalia: Now, if the defendant showed enormous remorse, would he be entitled... entitled... to get only 1 year, or only 20, or only 30? He had no entitlement whatever, did he?
Lisa S. Gochman: That's correct.
Antonin Scalia: If he did the crime, he knew he got life, and if he got any less than life it was a matter of grace and good luck, and if he got a hanging judge, too bad. You did the crime. That's the risk you took. Wasn't that the system?
Lisa S. Gochman: That--
Antonin Scalia: Now, there are no risks here. Here there is an entitlement to get a lesser sentence. Isn't there an absolute entitlement unless you are found to have this state of mind?
Lisa S. Gochman: --Not if it's a sentencing factor, because it's not a state of mind. State of mind goes to the underlying--
Antonin Scalia: You're saying he's not entitled even if--
William H. Rehnquist: --Let her answer.
Antonin Scalia: She's answering the wrong question, Chief Justice. Assuming that the judge does not find by a preponderance of the evidence that this mental state existed, is he not entitled to get the lower sentence?
Lisa S. Gochman: --Yes.
Antonin Scalia: All right, and there was--
Lisa S. Gochman: But he is... it's not an entitlement. It is by statutory prerogative that he must get that letter sentence. The judge must make a finding by a preponderance of the evidence. So yes--
Antonin Scalia: --But if--
Lisa S. Gochman: --the same words. Entitlement or--
Antonin Scalia: --Okay.
Lisa S. Gochman: --Or by statute.
Antonin Scalia: And there was no such entitlement under the traditional 1 year to life system. There was nothing you were entitled to.
Lisa S. Gochman: Well then, we've given defendant more due process than an older system.
Antonin Scalia: Well, that's true, but when you give entitlements, what go along with the entitlements are certain requirements, including the requirement of the Sixth Amendment.
Ruth Bader Ginsburg: May I ask you, Ms. Gochman, a defendant says, I don't understand this because my buddy committed a crime. It was called burglary, and that statute said, with a purpose to, and he went to a jury, and they had to find beyond a reasonable doubt, and I'm being charged with a statute that also says, with a purpose to, and the jury falls away, beyond a reasonable doubt falls away. Explain to me why the legislature, using the very same words, with a purpose to, in the one case can say, oh, this is just for the judge and the other must, as a matter of constitutional right, give it to the jury.
Lisa S. Gochman: The New Jersey supreme court has interpreted the phrase, with a purpose to, in its proper context and that is motive, and this Court is, of course, bound by that court's--
Ruth Bader Ginsburg: It's not motive when it appears in the burglary statute?
Lisa S. Gochman: --It's not the ultimate motive, not at all, in the burglary statute, if a defendant has burglarized a house with a purpose to commit a felony within, but again the prosecution doesn't have to prove why that person wanted to commit the felony. Did he want to commit a robbery because he had a claim of right to that money? Did he want to commit a robbery because he wants to feed his drug habit? Did he want to commit a robbery because he wanted to feed his hungry family? That is motive, and that the prosecution does not have to prove. Yes, we have to show that he entered that residence or business with the purpose to commit another offense, but we don't have to prove why he wanted to do so. That part is motive, and that's distinct from the intent, which is the purpose to in the burglary statute, and when read in its proper context, as the New Jersey supreme court has interpreted it, with a purpose to equals by its motivation, and that is a sentencing factor, because we did not have to prove that to prove--
William H. Rehnquist: Thank you, Ms. Gochman.
Lisa S. Gochman: --Thank you.
William H. Rehnquist: Mr. DuMont, we'll hear from you.
Edward C. DuMont: Thank you, Mr. Chief Justice, and may it please the Court: In this case, what New Jersey did was to convict petitioner of a very traditional, conventional crime, possession of a weapon for an unlawful purpose. It's a crime with a long common law tradition. It seeks to punish him more severely than it otherwise would for that crime for an equally conventional reason, that he acted with a particularly bad purpose. Now, that sentencing policy decision does not, in our view, become unconstitutional simply because the State specified the bad motive factor in a statute and required the judge to find it by a preponderance of the evidence before he was permitted to go over a certain level in the sentence. Now, we all agree, I think, that a legislature normally may define the elements of a crime and fix the minimum and maximum punishments for that crime. What the legislature does in these cases is to make a subsidiary decision that a particular factor is not sufficiently central to guilt or innocence, or perhaps it would be so cumbersome or unfair to present at trial that it should not be sent to the jury as an element of the offense, but that it is important enough, in the legislature's view, to the proper punishment for the offense that the judge should be constrained in his sentencing decisions in that finding this factor by a preponderance... not by reasonable doubt, but by a preponderance... should be necessary before the judge may go over a certain level in sentencing.
Clarence Thomas: Mr. DuMont, that's just the problem. You agree that if it's an element of the offense it goes to the jury.
Edward C. DuMont: Yes.
Clarence Thomas: You agree that if it's an enhancement it can go to the judge.
Edward C. DuMont: Yes.
Clarence Thomas: As a sentencing factor. The difficulty I have is that nowhere have we defined what the distinction is between an element of the offense and an enhancement factor, and if you could do that in your few minutes it would be very helpful.
Edward C. DuMont: Well, it is a tall order. What the Court has said... I think I can give you parameters. The Court has said, on the one hand, that it is almost always the legislature's prerogative to define the elements of the offense. The Court has also said, made very clear in this series of cases, that there are limits past which the legislature may not go consistent with due process and the jury right. An example we would be willing to give, if a legislature tried to define double parking as a petty offense subject to a fine, but then said, if the judge finds that you were double-parked because you were going to escape from a bank robbery, then it's life imprisonment, we think that would be so contrary to our traditions and so obviously abusive, that it would be on the other side of the line. But that line has to be drawn very far out in order to give proper due to the legislature's prerogative.
Antonin Scalia: What's the criterion for the drawing of the line? Now, do you agree with the State of New Jersey? As I understand the State's position, it's that anything can be made a sentencing factor which was not a traditional element, that if it's a traditional element, it has to remain an element. If it's a traditional sentencing factor, it can be made a sentencing factor. Is... do you agree with that line? That's how I understand the State's argument.
Edward C. DuMont: We think tradition and common practice are helpful guides in looking at a particular statute, but no, they don't define a particular line. I guess I would have two answers to the question of what is the line. At the furthest doctrinal level, I think that the best answer I can give you is that if the Court becomes convinced beyond, if I may use the phrase, a constitutional doubt, that a legislature is punishing a defendant for something other than the crime described by the elements of the crime of which he was convicted, then there is reason for grave concern, and possibly that statute is unconstitutional. But it must be remembered that a legislature has wide right to define crimes and to punish them very severely, so the question to be asked, to take Justice Scalia's hypothetical, for instance, from his dissent in Monge, of the statute that says, any intentional causing of harm is a crime, and everything else is a sentencing factor, you have to start with the supposition that the legislature could not enact that offense just as a crime and then say, it is a crime, and the sentence is up to life imprisonment or death in appropriate cases, and the judge decides. Now, if that is constitutionally problematic, which we think it probably would be, it's probably the same constitutional problem that we can see here.
Sandra Day O'Connor: Do you think it's a problem for a legislature to say robbery is punishable by anything from a year to life?
Edward C. DuMont: No. No, not at all. My point is only that at some extreme there may be a due process or a jury trial when the... on even just imposing a crime and imposing a punishment of up to life imprisonment or death. Now--
David H. Souter: How about a narrower example? Instead of saying, all wrongdoing, let's say all theft. All theft is punishable from zero to life.
Edward C. DuMont: --On its face, the statute is constitutional.
David H. Souter: Then you basically, in the real world, are saying the legislature is going to determine when there is a jury right and when there isn't. I mean, I don't see how you can escape that conclusion.
Edward C. DuMont: I think that's correct, and I think that's the way it's always been except for common law crimes, and common law crimes were crimes that were defined by courts, and they were always understood to be at the pleasure of the legislature if the legislature chose to make a different disposition. Now--
Antonin Scalia: Why do you say that's the way it's always been? I don't understand what you mean by that. I don't--
Edward C. DuMont: --Well, take the Federal system. Congress is the only body that can define a crime, so if you don't have a congressional enactment, you don't have a statute, you don't know what the elements are and, in fact, there are no elements. There is no crime. So, of course, whether you get a jury trial right always depends on what the legislature has defined to be a crime. Now, if I can just address for a moment the Jones rule, because I think... we have two points to make about the proposed Jones rule. One is that it would cut out a lot of legislative conduct that to us is perfectly legitimate and even laudable, and if you take the traditional robbery, or, say, a kidnapping statute that says... the Federal one says zero to death, actually, and that's what the statute says now. Suppose Congress says, well, we'd like to bring a little more order to the sentencing process, so we think it's going to be presumptively 25 years, but if a child is involved, or there was bodily injury, then it's going to be 25 to 40, and if someone was killed, if the victim was killed, then it ought to be from 40 to life. Now, you can look at that statute and say, this is terrible for defendants because now they've been deprived of their jury right, or you can look at it and say, that's terrific for defendants, because two-thirds of the defendants now have a 25-year cap on their sentence, so we don't see the fundamental fairness argument here. The second point to be made about the Jones rule--
Antonin Scalia: --Excuse me. In those cases I assume the judge must impose 20 years if a certain factor is found, and must impose 40 years if a certain factor is found. Isn't that right?
Edward C. DuMont: --It can be written either way.
Antonin Scalia: It can be written--
Edward C. DuMont: It can be written either as a mandatory minimum of 20 and then up to 40, or it can be written as, that the range increases to 40 years if somebody was injured, because--
David H. Souter: --But in any event, even on that answer, he may not impose the higher sentence unless the fact is found.
Edward C. DuMont: --That's correct, but what the--
David H. Souter: So there is a limitation on the judge which creates in Justice Scalia's question to your friend a moment ago an entitlement which didn't exist before.
Edward C. DuMont: --But the entitlement is only to have the judge make that determination by a preponderance of the evidence.
David H. Souter: Well, that's a way of defining the problem out of existence. The entitlement is an entitlement not to get a sentence beyond a certain point unless a fact is found. What consequence follows for a judge/jury is another question, but there's an entitlement not to have a sentence beyond a certain point.
Edward C. DuMont: That is true, but the question you have to face is why you should erect a flat constitutional bar to the legislature making that choice, and that is informed by this analysis, I believe. If the legislature knows it has only two choices, zero to life, or make these into elements of the offense and require proof beyond a reasonable doubt, it may decide they're not important enough for that, and that is not very protective of defendants. If the legislature has the option of saying, well, these intermediate steps we think are important enough to be serious sentencing factors but they're not important enough for us to make them elements of the offense, we think constitutionally they ought to have that choice, and that that is not going to be unfair to defendants. In fact, it's going to be fairer to defendants.
Antonin Scalia: So long as you have a reasonable legislature. The problem is, you don't give me any basis for stopping a legislature that wants to make theft a crime and leave, you know, anything from zero to 100 years hang upon whether some judge finds more likely than not that the type of theft was one thing or another.
Edward C. DuMont: Justice Scalia, all I can leave you with is--
Antonin Scalia: And it seems to me the Constitution should not presume a beneficent, well-meaning legislature. You have to give me some way to protect citizens from a legislature that does not like juries.
Edward C. DuMont: --The Constitution first of all--
Antonin Scalia: From an executive that does not like juries.
Edward C. DuMont: --What we know is, the Constitution presumes that legislatures act within the constitutional bounds of their power, and there ought to be a high burden on one who suggests that they have not, and our suggestion is that the rule suggested here, although it has an attractive superficial clarity, will cut out a wide variety of appropriate legislative conduct like the conduct here, and there's no justification for doing that in order to prevent the outlier case. We agree that there can be outlier cases. The Court has always made that clear. It hasn't found one yet.
John Paul Stevens: But why isn't this an outlier case?
Edward C. DuMont: Maybe it will.
John Paul Stevens: Why isn't this an outlier case? There's no precedent for this particular statute, is there?
Edward C. DuMont: It's not an outlier case because all New Jersey did was to decide that something bad, particularly bad purpose which is traditional--
John Paul Stevens: Ups the sentence by 10 years.
Edward C. DuMont: --Thank you.
William H. Rehnquist: Thank you, Mr. DuMont. Mr. O'Neill, you have 2 minutes remaining.
Joseph D. O'Neill: Mr. Chief Justice, I would like, unless the Court has additional questions, to limit my rebuttal to a question posed by Justice Thomas concerning the distinction between element of a crime and a sentencing factor. As we know, the statute in question says the defendant, in committing the crime, acted with a purpose to intimidate because of race. That seems to me that the... if we want to address what the legislature in New Jersey used by choice, the word purpose instead of the word motive, it seems that where purpose or intent is an ingredient of the statute, as it is here, that's a question as to the existence of that motive or intent, and that has to be a jury question, and I think that's the difference. There is a denial by the New Jersey legislature of the defendant's right to have a jury decide this issue of purpose in intimidating a person because of race. If there are no further questions, I would--
William H. Rehnquist: Thank you, Mr. O'Neill. The case is submitted.