SUPREME COURT OF THE UNITED STATES
_________________
No. 23–370
_________________
PAUL ERLINGER, PETITIONER
v. UNITED
STATES
on writ of certiorari to the united states
court of appeals for the seventh circuit
[June 21, 2024]
Justice Jackson, dissenting.
In the Armed Career Criminal Act (ACCA), 18
U. S. C. §924(e), Congress directed sentencing judges to
conduct a “multi-factored” inquiry into “a range of circumstances”
to determine whether a particular defendant’s criminal history
suggests that he is the sort of “ ‘revolving door’ felo[n]”
that ACCA was designed to target.
Wooden v.
United
States, 595 U.S. 360, 369, 375 (2022); see also §924(e)(1).
Those kinds of findings have historically been deemed well within
the capacity of a sentencing judge. See
Almendarez-Torres v.
United States,
523 U.S.
224, 243–244 (1998). Today, the Court concludes that
Apprendi v.
New Jersey,
530 U.S.
466 (2000), must be read to suggest otherwise—
i.e., that
under
Apprendi, for sentencing purposes, facts that relate
to a defendant’s prior crimes cannot be determined by judges but
instead must be found by juries. I disagree for several reasons,
including my overarching view that
Apprendi was wrongly
decided. Like many jurists and other observers before me, I do not
believe that Congress exceeds its constitutional authority when it
empowers judges to make factual determinations related to
punishment and directs that a particular sentencing result follow
from such findings.[
1]
I recognize, of course, that
Apprendi is
a binding precedent of this Court, and one that “has now defined
the relevant legal regime” for nearly a quarter century.
Alleyne v.
United States,
570 U.S.
99, 122 (2013) (Breyer, J., concurring in part and concurring
in judgment). Given that reality, untangling the knots
Apprendi has tied is probably infeasible at this point in
our Court’s jurisprudential journey. But considering the flaws
inherent in
Apprendi’s approach, I cannot join today’s
effort to further extend
Apprendi’s holding, particularly
when there is a well-established recidivism exception to the
Apprendi rule that applies to the circumstances of the case
before us now.
I agree with Justice Kavanaugh that, all things
considered, the Court errs in concluding today that ACCA’s
occasions inquiry must be decided by a jury. See
ante, at
3–9 (dissenting opinion). I write separately to provide an
additional critical perspective on the
Apprendi doctrine—one
that is informed by how sentencing has actually worked on the
ground, before and after
Apprendi—and to note that applying
the
Apprendi rule to ACCA’s occasions finding creates all
sorts of practical problems that are easily avoided by simply
allowing judges to do what they have always done. Because the Court
pushes the flawed
Apprendi rule past where it needs to go,
and, incidentally, establishes a procedural requirement that is
likely impossible to implement in real life, I respectfully
dissent.
I
In
Apprendi, this Court held that
“[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable
doubt.” 530 U. S., at 490. For the reasons others have
skillfully articulated, see n. 1,
supra, and also the
reasons that follow, I think the
Apprendi Court was wrong to
interpret the Sixth Amendment’s jury-trial guarantee to limit
legislatures’ ability to define crimes and give judges discretion
to set appropriate punishments based on findings of fact.
Apprendi and its ilk have also needlessly hampered
Congress’s and state legislatures’ pursuit of a fairer and more
rational sentencing system.
A
Our Constitution “protects the accused against
conviction except upon proof beyond a reasonable doubt of every
fact necessary to constitute the crime with which he is charged.”
In re Winship,
397 U.S.
358, 364 (1970). At the outset, it is important to take note of
the scope of this constitutional protection as it has traditionally
been recognized and understood: It is a protection against
conviction without the necessary facts having been
established beyond a reasonable doubt.
Ibid. That is not the
same as a protection against being
sentenced to a certain
level of punishment unless the facts that are relevant to that
sentencing determination have been proved to a jury consistent with
the reasonable-doubt standard.
The facts that must be proved before a defendant
can be convicted are often called elements. See
United
States v.
Gaudin,
515 U.S.
506, 510 (1995). Traditionally, “the elements of a crime are
its requisite (a) conduct (act or omission to act) and (b) mental
fault (except for strict liability crimes)—plus, often, (c)
specified attendant circumstances, and, sometimes, (d) a specified
result of the conduct.” 1 W. LaFave, Substantive Criminal Law
§1.8(b), p. 103, n. 14 (3d ed. 2018); see also 1 J.
Ohlin, Wharton’s Criminal Law §3:1, pp. 48–49 (16th ed. 2021).
As the majority correctly recognizes, such elemental facts have
always been in the purview of the jury. See
ante, at 7. The
Sixth Amendment’s jury-trial guarantee reflects this
well-established understanding of the jury’s domain. See
Sullivan v.
Louisiana,
508 U.S.
275, 277–278 (1993).
Although sometimes the “determination of what
elements constitute a crime . . . is subject to dispute,”
Gaudin, 515 U. S., at 525 (Rehnquist, C. J.,
concurring), it is clear that “[o]nly the people’s elected
representatives in the legislature are authorized to ‘make an act a
crime,’ ”
United States v.
Davis, 588 U.S. 445,
451 (2019) (quoting
United States v.
Hudson, 7 Cranch
32, 34 (1812)). It follows that “ ‘[t]he definition of the
elements of a criminal offense is entrusted to the
legislature.’ ”
Staples v.
United States,
511 U.S.
600, 604 (1994) (quoting
Liparota v.
United
States,
471 U.S.
419, 424 (1985); alteration in original). For that reason, this
Court—at least until recent times—generally deferred to legislative
judgments about which facts constitute elements of the offense. See
McMillan v.
Pennsylvania,
477 U.S.
79, 85 (1986) (“[I]n determining what facts must be proved
beyond a reasonable doubt the . . . legislature’s
definition of the elements . . . is usually
dispositive”).
Once a defendant has been found guilty of a
crime—
i.
e., once a jury has made the requisite
factual findings establishing the elements of the crime—judges have
traditionally been entrusted with substantial discretion to impose
the appropriate sentence. See K. Stith & J. Cabranes, Fear of
Judging: Sentencing Guidelines in the Federal Courts 9 (1998).
Indeed, at the dawn of our Republic, the very first Congress
enacted many criminal laws that prescribed a range of possible
punishments, leaving it to judges to determine the proper sentence.
See An Act for the Punishment of Certain Crimes Against the United
States, ch. 9, 1Stat. 112–118; see also R. Little & T. Chen,
The Lost History of
Apprendi and the
Blakely Petition
for Rehearing, 17 Fed. Sentencing Rep. 69, 72 (2004).[
2]
Significantly for present purposes, judges were
thought to “inherently possess ample right to exercise reasonable,
that is, judicial, discretion to enable them to wisely exert their
authority” in deciding what punishment to impose.
Ex parte
United States,
242 U.S.
27, 41–42 (1916). In fact, a judge’s determination of the
appropriate sentence was long considered to be unreviewable in most
circumstances. See
Dorszynski v.
United States,
418 U.S.
424, 431 (1974).
When exercising their sentencing authority,
judges were also presumed to have the power to find and consider
nearly any fact deemed relevant to the penalty. “[B]oth before and
since the American colonies became a nation, courts in this country
and in England practiced a policy under which a sentencing judge
could exercise a wide discretion in the sources and types of
evidence used to assist him in determining the kind and extent of
punishment to be imposed within limits fixed by law.”
Williams v.
New York,
337 U.S.
241, 246 (1949). A sentencing judge might find, for example,
that a defendant lacked remorse for his crime, or that the conduct
underlying the crime was particularly heinous, and sentence the
defendant accordingly. See
id., at 247. All of those kinds
of factual determinations were considered to be important factors
for imposing the sentence that a person who had been found guilty
of a criminal act would be required to serve. And none of them were
thought to be subject to the Sixth Amendment’s jury-trial
right.
By the late 19th century, sentencing schemes
grew more complex, with the vast majority of States and the Federal
Government adopting so-called indeterminate sentencing systems. A.
Campbell, Law of Sentencing §§1:2–1:3, pp. 9–10 (3d ed. 2004)
(Campbell). In those jurisdictions, “[u]sing broad discretion,
trial courts imposed minimum and maximum [sentences] based on
judicial estimates of how long it would take to rehabilitate
criminal offenders,” which parole boards then used to determine
when an offender would be released.
Id., §1:3, at 10. There,
too, judges were given wide authority to determine an appropriate
sentencing range, and to do so based on judicial findings of fact.
In fact, “judges were encouraged to weigh the character of the
individual offender along with the nature of the offense when
imposing sentence,”
id., §1:2, at 9, considerations that are
immensely factbound. That judges rather that juries made these
factual findings was not thought to be constitutionally
problematic.
Critically, the nature of factfinding
proceedings before a judge at sentencing was—and still
is—fundamentally different from the factfinding that a jury engages
in. Jury factfinding at trial “always ha[s] been hedged in by
strict evidentiary procedural limitations.”
Williams, 337
U. S., at 246. By contrast, such limitations have not, as a
general matter, applied to judges when they find facts for
sentencing purposes. See
ibid. Instead, a sentencing judge
has always been expected to consider a wide range of
information—really, anything relevant to assessing the appropriate
penalty—when determining a sentence.
The difference between jury factfinding at trial
and judicial factfinding for sentencing makes perfect sense.
“Typically, trial disputes center on particular issues of
historical fact,” and juries accordingly “receive limited
information and must choose from limited options to resolve
disputed issues.” D. Berman & S. Bibas, Making Sentencing
Sensible, 4 Ohio St. J. Crim. L. 37, 54 (2006). As a result,
“[r]ules of evidence have been fashioned for criminal trials which
narrowly confine the trial contest to evidence that is strictly
relevant to the particular offense charged.”
Williams, 337
U. S., at 246–247. “A sentencing judge, however, is not
confined to the narrow issue of guilt. His task within fixed
statutory or constitutional limits is to determine the type and
extent of punishment after the issue of guilt has been determined.”
Id., at 247. Thus, sentencing judges “receiv[e] a range of
information about both the offense and the offender and can choose
from various possible dispositions.” Berman & Bibas, 4 Ohio St.
J. Crim. L., at 55. “Highly relevant—if not essential—to [a
judge’s] selection of an appropriate sentence is the possession of
the fullest information possible concerning the defendant’s life
and characteristics.”
Williams, 337 U. S., at 247.
The upshot is that, traditionally, judges and
juries have not only played different factfinding roles, they have
also utilized different tools to carry out those duties. And far
from being ill equipped to find facts for punishment purposes,
judges have long been regarded as having both the power and the
institutional competency to determine the factual bases for the
imposition of sentences. Again: This judicial authority has
traditionally included the ability to make findings of fact related
to both an offender’s characteristics and the criminal conduct at
issue as necessary to determine an appropriate sentence—all while
relying on a wide range of evidence. Historically, none of this was
thought to conflict with or usurp the jury’s distinct role of
determining guilt or innocence.
B
Over time, however, legislatures became
concerned with “the almost wholly unchecked and sweeping powers
. . . give[n] to judges in the fashioning of sentences.”
M. Frankel, Criminal Sentences: Law Without Order 5 (1973).
“[L]egislators . . . decried the perceived inequity of
incarcerating some offenders longer than others for the same
crime,” as well as the possibility that discriminatory
considerations such as race and sex were playing a role in judges’
sentencing determinations. Campbell §1:3, at 11; see also S.
Breyer, The Federal Sentencing Guidelines and the Key Compromises
Upon Which They Rest, 17 Hofstra L. Rev. 1, 4–5 (1988). “The
length of time a person spent in prison appeared to depend on ‘what
the judge ate for breakfast’ on the day of sentencing, on which
judge you got, or on other factors that should not have made a
difference to the length of the sentence.”
Blakely v.
Washington,
542 U.S.
296, 332 (2004) (Breyer, J., dissenting).
Out of this unregulated environment emerged a
legislative development—the identification of what are commonly
referred to as “sentencing factors” (also known as “sentencing
facts”). In an effort “to bring more order and consistency to the
[sentencing] process,” Congress and state legislatures “sought to
move from a system of indeterminate sentencing or a grant of vast
discretion to the trial judge to a regime in which there [were]
more uniform penalties, prescribed by the legislature.”
Jones v.
United States,
526 U.S.
227, 271 (1999) (Kennedy, J., dissenting). Legislatures
recognized that, although judges are fully competent to find facts
and exercise discretion when sentencing, too much discretion could
create unwarranted disparities and therefore have detrimental
effects. New sentencing regimes were implemented to cabin
sentencing discretion by “directly limit[ing] the use
. . . of particular factors in sentencing” and “by
specifying statutorily how a particular factor [would] affect the
sentence.”
Apprendi, 530 U. S., at 560 (Breyer, J.,
dissenting).
Legislatures sometimes specified, for example,
“that a particular factor, say, use of a weapon, recidivism, injury
to a victim, or bad motive, ‘shall’ increase, or ‘may’ increase, a
particular sentence in a particular way.”
Ibid. Conversely,
legislatures also directed judges to disregard certain facts,
including those that were deemed irrelevant for sentencing
purposes. See 28 U. S. C. §994(d) (directing the
U. S. Sentencing Commission to consider whether age,
education, vocational skills, and other factors are relevant to
sentencing); United States Sentencing Commission, Guidelines Manual
§§5H1.2, 5H1.4, 5H1.5, 5H1.6 (Nov. 2023) (noting that education,
drug or alcohol dependence, employment record, and family ties are
ordinarily not relevant in determining the length of a sentence);
see also,
e.
g., Wash. Rev. Code §9.94A.535(e) (2023)
(excluding “[v]oluntary use of drugs and alcohol” as a potential
mitigating factor).
These structured sentencing schemes were not
adopted “to manipulate the statutory elements of criminal offenses
or to circumvent the procedural protections of the Bill of Rights.”
Blakely, 542 U. S., at 316 (O’Connor, J., dissenting).
Rather, Congress and the States that adopted these rules did so
against a backdrop of unbounded judicial discretion that had
proved, in their view, to be unwieldy, unfair, and unwise.
Accordingly, the goal of legislative efforts in this regard was to
constrain judicial discretion by channeling the accepted competency
of judges to set appropriate sentences toward the objective of
achieving more consistent and more equitable outcomes.
This Court dealt a significant blow to these
legislative attempts to promote fairness and consistency in
sentencing with its decision in
Apprendi. As I previously
noted, we concluded—for the first time in history—that “[o]ther
than the fact of a prior conviction, any fact that increases the
penalty of a crime beyond the prescribed statutory maximum” is an
element that “must be submitted to a jury, and proved beyond a
reasonable doubt.” 530 U. S., at 490. We later extended that
rule to cover any “finding of fact” that “alters the legally
prescribed punishment so as to aggravate it,” because—in the
Court’s view—that “fact necessarily forms a constituent part of a
new offense and must be submitted to the jury.”
Alleyne, 570
U. S., at 114–115.
By now, the
Apprendi rule has been
applied to a litany of punishments other than incarceration. See
ante, at 9. Through these cases, the Court has “embrace[d] a
universal and seemingly bright-line rule limiting the power of
Congress and state legislatures to define criminal offenses and the
sentences that follow from convictions thereunder.”
Apprendi, 530 U. S., at 525 (O’Connor, J., dissenting).
By any measure, “[t]he impact of
Apprendi and its progeny
has been extraordinary, disrupting sentences and prompting new
[corrective] legislation across the nation.” 6 W. LaFave, J.
Israel, N. King, & O. Kerr, Criminal Procedure §26.4(i),
p. 1011 (4th ed. 2015).
II
A
I was not a Member of the Court during these
developments. In my view, however, the Court made a serious mistake
when it conflated elements and sentencing factors in this way. As
others have argued, “[t]he Court’s basic error in
Apprendi
. . . was its failure to recognize the law’s traditional
distinction between elements of a crime (facts constituting the
crime, typically for the jury to determine) and sentencing facts
(facts affecting the sentence, often concerning,
e.
g., the manner in which the offender committed the
crime, and typically for the judge to determine).”
Alleyne,
570 U. S., at 122 (Breyer, J., concurring in part and
concurring in judgment). The Sixth Amendment’s jury-trial right
“guarantees a jury’s determination of facts that constitute the
elements of a crime”—no more and no less.
Id., at 123.
To be fair, the principal justification that has
been given for
Apprendi’s conflation of elements and
sentencing factors is a historical one. See,
e.
g.,
ante, at 5–6;
Alleyne, 570 U. S., at 108–111
(opinion of Thomas, J.). The account that has been provided in some
of the Court’s opinions is that, during the founding era,
“ ‘[o]nce the facts of the offense were determined by the
jury, the judge was meant simply to impose the prescribed
sentence.’ ”
Ante, at 7 (quoting
United States
v.
Haymond, 588 U.S. 634, 642 (2019) (plurality opinion);
alteration in original). But the accuracy of this historical
account is debatable. See n. 2,
supra. Scholars have
suggested that, far from the simplistic picture painted by the
Court in
Apprendi, the historical “tradition was not
uniform, suggesting that the common law had no fixed rule on the
subject.” S. Bibas, Judicial Fact-Finding and Sentence
Enhancements in a World of Guilty Pleas, 110 Yale L. J. 1097,
1129 (2001); see also,
e.
g.,
id., at
1123–1132; Little & Chen, 17 Fed. Sentencing Rep., at 69–70;
J. Mitchell, Apprendi’s Domain, 2006 S. Ct. Rev. 297,
298–299.
In any event, the Constitution itself does not
mention sentencing at all—let alone the work of courts when
sentencing—and it certainly “does not freeze 19th-century
sentencing practices into permanent law.”
Apprendi, 530
U. S., at 559 (Breyer, J., dissenting). Moreover, “[a]n
essential aspect of the Constitution’s endurance is that it
empowers the political branches to address new challenges by
enacting new laws and policies.”
Consumer Financial Protection
Bureau v.
Community Financial Services Assn. of America,
Ltd., 601 U.S. 416, 446 (2024) (Jackson, J., concurring). In my
view, the People’s elected representatives should be able to pursue
new and innovative approaches to sentencing and sentencing reform
“without undue interference by courts,”
ibid., especially
given that unfair and disparate sentences are a persistent societal
problem that the legislature is indisputably authorized to
address.
Nor is there a functional, policy-based
justification for the constitutional rule that
Apprendi and
its progeny enshrined. The Court has repeatedly characterized
Apprendi as preserving “the right of jury trial” in the
past,
Blakely, 542 U. S., at 305, and persists with
that mantra to this day,
ante, at 5–8. As the reasoning
goes, because the
Apprendi rule recognizes that it is
“ ‘unconstitutional for a legislature to remove from the jury
the assessment of facts that increase the prescribed range of
penalties to which a criminal defendant is exposed,’ ” 570
U. S., at 490,
Apprendi “preserves the historic role of
the jury as an intermediary between the State and criminal
defendants,”
Alleyne, 570 U. S., at 114.
But, in reality, the
Apprendi rule does
no such thing. A sentencing judge today remains free, consistent
with
Apprendi, to impose any punishment within a prescribed
sentencing range based on whatever facts she deems relevant. See
530 U. S., at 481 (conceding that judges may “exercise
discretion—taking into consideration various factors relating both
to offense and offender—in imposing a judgment within the range
prescribed” (emphasis deleted)). So, “[u]nder the
Apprendi
doctrine, the jury plays only one role with respect to sentencing,
and it is an indirect one: If the defendant does not plead guilty,
then the jury must determine the presence or absence of the verdict
facts that operate to constrain
the outer limit of the
judge’s authority to impose sentence.” B. Priester,
Apprendi Land Becomes Bizarro World: “Policy Nullification”
and Other Surreal Doctrines in the New Constitutional Law of
Sentencing, 51 Santa Clara L. Rev. 1, 47 (2011) (emphasis
added). Meanwhile, the judge continues to be the sole decisionmaker
with respect to determining the facts she will rely upon to
sentence within the typically broad statutory sentencing range. See
United States v.
Booker,
543
U.S. 220, 246 (2005). “The jury plays no role in extraverdict
factfinding, nor in calculating the specific sentence to be imposed
within the outer limit authorized by the verdict facts.” Priester,
51 Santa Clara L. Rev., at 48.
Apprendi’s distinction between
permissible and impermissible judicial factfinding therefore
neither aligns with the doctrine’s rationale nor achieves its
stated goals. As a result, the
Apprendi rule does little
actual work. Even after
Apprendi, a sentencing judge can
still find and consider any fact—including sentencing factors
defined by the legislature—so long as the consequence of that fact
is not mandatory but rather left to the judge’s discretion. And
after
Apprendi, just as before, criminal defendants
routinely stipulate to facts that are relevant to statutory
maximums and minimums as part of binding plea agreements, making
factfinding with respect to these newfound elements irrelevant. So,
really, the only change that
Apprendi has wrought is that
legislatures may no longer limit judicial discretion as a matter of
law by
requiring that a particular sentencing fact have a
particular effect on the sentence. See
Blakely, 542
U. S., at 303–304.
At bottom, then, all the
Apprendi
doctrine has done is “shiel[d] the sentencing power of judges from
legislative encroachment.” Priester, 51 Santa Clara L. Rev.,
at 49. Given this, it is no wonder that, for all its exhortations
about the right to jury factfinding for sentencing purposes, the
Apprendi line of cases appears to have had no appreciable
effect on “the number of criminal jury trials” or on “the number of
sentence-affecting facts decided by juries in those trials that do
occur.” F. Bowman, Debacle: How the Supreme Court Has Mangled
American Sentencing Law and How It Might Yet Be Mended, 77
U. Chi. L. Rev. 367, 461 (2010).
B
In terms of the impact on the functioning of
our criminal justice system, however, the consequences of the
Court’s decisions in this area have been palpable. Most notably for
present purposes,
Apprendi has prevented legislatures from
developing innovative methods to achieve fairness in sentencing and
thus, in my view, has stunted our collective pursuit of justice.
What I mean by this is that, while “[l]egislatures may set the
available penalties for offenses using verdict facts,” they must
now be essentially hands off “once that scope of punishment is
established.” Priester, 51 Santa Clara L. Rev., at 50. Far
from the mystical myth that the Sixth Amendment vests juries with
sentencing power, the reality is that, through its
Apprendi
doctrine, the Court has merely managed to oust the legislature from
its rightful place in the sentencing policy sphere, thereby
effectively “insist[ing] that the power to consider sentencing
facts and assess their normative worth must rest [solely] with
judges.” Priester, 51 Santa Clara L. Rev., at 50.
The People’s representatives are left with “a
binary choice” when crafting legislation due to the
Apprendi
doctrine—“a fact is either of a type that triggers the full panoply
of procedural protections that comes with the Sixth Amendment
jury-trial right, or it is of no constitutional consequence and can
be found and relied on by a judge with virtually no procedural
safeguards at all.” Bowman, 77 U. Chi. L. Rev., at 466;
see also
Blakely, 542 U. S., at 330–340 (Breyer, J.,
dissenting) (outlining the limited options that legislatures have,
all of which “ris[k] either impracticality, unfairness, or harm to
the jury trial right”). But not every fact fits neatly into this
dichotomy. Moreover, and importantly, judges and juries engage with
facts differently in the context of their distinct roles.
“Juries provide democratic legitimacy, common
sense, and fresh perspectives.” Berman & Bibas, 4 Ohio St. J.
Crim. L., at 62. Meanwhile, “[j]udges are experts, can more
effectively and consistently apply complex rules, and have
flexibility in how they consider evidence.”
Id., at 62–63.
But under the
Apprendi rule, the policymaking branches of
our government can no longer devise more nuanced, creative
approaches to factfinding at sentencing that better reflect the
differing competencies of jurors and judges.
In short, the Court’s all-or-nothing approach to
the jury-trial right in
Apprendi and its kin “pose[s] a
serious obstacle to [legislative] efforts to create a sentencing
law that would mandate more similar treatment of like offenders,
that would thereby diminish sentencing disparity, and that would
consequently help to overcome irrational discrimination (including
racial discrimination) in sentencing.”
Booker, 543
U. S., at 329 (Breyer, J., dissenting in part). The Court has
also “deprive[d] Congress and state legislatures of authority that
is constitutionally theirs.”
Id., at 330.
C
I recognize that many criminal defendants and
their advocates prefer the
Apprendi regime, which provides
some defendants with more procedural protections at sentencing. In
no way am I suggesting that the defense bar has “been ‘somehow
duped’ into advocating for a rule that would be ‘unfair to criminal
defendants.’ ”
Ante, at 24 (quoting
Blakely, 542
U. S., at 312). Defendants’ embrace of the
Apprendi
doctrine is perfectly rational because procedural rights like the
right to have a jury determine certain sentencing facts “hel[p]
some defendants—and probably rais[e] the overall level of defense
victories—by giving their lawyers claims and arguments that
otherwise would not exist.” W. Stuntz, The Uneasy Relationship
Between Criminal Procedure and Criminal Justice, 107 Yale
L. J. 1, 45 (1997).
In my view, however, the benefit that some
criminal defendants derive from the
Apprendi rule in the
context of their individual cases is outweighed by the negative
systemic effects that
Apprendi has wrought, when compared to
“the greater fairness of a sentencing system that a more uniform
correspondence between real criminal conduct and real punishment
helps to create.”
Blakely, 542 U. S., at 338 (Breyer,
J., dissenting). An individual defendant may, of course, benefit
from a reduced sentence based on a jury’s verdict under the
Apprendi rule, but that favorable outcome for one person
does little to ensure systemic fairness, consistency, and
transparency in sentencing. See Stuntz, 107 Yale L. J., at
75.
The U. S. Sentencing Commission has
documented the impact of the
Apprendi rule in the wake of
our decision in
United States v.
Booker,
543 U.S.
220, which applied
Apprendi to the Federal Sentencing
Guidelines. In
Booker, we found certain judicial factfinding
in the Guidelines context unconstitutional under
Apprendi,
but to remedy that violation, we also held that the Guidelines must
be treated as advisory rather than mandatory. 543 U. S., at
244–245. After
Booker, sentencing disparities of all manner
have increased significantly. Otherwise similarly situated
defendants appear to receive vastly different sentences depending
on the court in which they are prosecuted and what judge is
assigned to their case. See,
e.
g., United States
Sentencing Commission, Inter-District Differences in Federal
Sentencing Practices 7 (Jan. 2020) (“Variations in sentencing
practices across districts increased in the wake of the Supreme
Court’s 2005 decision in
Booker”); United States Sentencing
Commission, Intra-City Differences in Federal Sentencing Practices
7 (Jan. 2019) (“In most cities, the length of a defendant’s
sentence increasingly depends on which judge in the courthouse is
assigned to his or her case”). Given the history of sentencing
reform in our Nation, see Part I–B,
supra, it was
foreseeable that
Apprendi’s interference with legislative
control over judicial sentencing discretion would contribute to
these kinds of disparities.
Among the evidence that has been amassed
concerning
Apprendi’s negative downstream impact on
sentencing fairness, one statistic is particularly sobering: In the
federal criminal justice system, racial disparities in sentencing
have been a persistent problem, but the gap between similarly
situated Black and White male defendants “was narrowest” before the
Court applied
Apprendi to the Guidelines. K. Klein & S.
Klein, A Racially Biased Obstacle Course:
Apprendi
Transformed the Federal Sentencing Guidelines into a Series of
Judicial Obstacles; Can Shame Reduce the Racial Disparities? 99
N. C. L. Rev. 1391, 1412 (2021); see also United States
Sentencing Commission, Demographic Differences in Sentencing: An
Update to the 2012 Booker Report 6 (Nov. 2017). And
Apprendi
appears to have made things appreciably worse. See Klein &
Klein, 99 N. C. L. Rev., at 1412 (“Currently, for every
fifty-one months a judge gives a White man, a similarly situated
Black man receives eight more”).
So, while the defense bar might like
Apprendi because its rule can benefit individual defendants
in certain cases, that rule might also be inhibiting our collective
achievement of a fairer sentencing system more broadly.
I do acknowledge, however, that there are risks
involved with legislative innovation in this area, since not all
legislative action in the sentencing realm will be made in pursuit
of greater systemic fairness. Legislatures are sometimes
incentivized to adopt more punitive measures, such as mandatory
minimums or severe recidivism-based sentencing enhancements. See W.
Stuntz, The Pathological Politics of Criminal Law, 100 Mich.
L. Rev. 505, 530–531 (2001). And at least in some
circumstances, the
Apprendi rule operates to blunt such
measures. See
Alleyne, 570 U. S., at 123–124 (Breyer,
J., concurring in part and concurring in judgment). But problems
created by the legislature can also be addressed through the
democratic process; indeed, legislators have recently retreated
from harsh sentencing laws. See,
e.g., First Step Act of
2018, Pub. L. 115–391, 132Stat. 5194; see also
Pulsifer v.
United States, 601 U.S. 124, 155 (2024) (Gorsuch, J.,
dissenting) (discussing the First Step Act’s attempt to
“recalibrate [Congress’s] approach” to sentencing). Meanwhile,
Apprendi’s constitutional rule operates to constrain
legislative reforms while also potentially perpetuating the
unfairness caused by unwarranted disparities.
To be clear, my skepticism of
Apprendi
should not be taken to suggest that I believe that legislatures
should have unbridled authority to write laws that distinguish
between sentencing factors and elements. There is, of course, “a
risk of unfairness involved in permitting [legislatures] to make
this labeling decision.”
Blakely, 542 U. S., at 344
(Breyer, J., dissenting). Sentencing policymakers could, perhaps,
“permit [a sentencing factor] to be a tail which wags the dog of
the substantive offense.”
McMillan, 477 U. S., at 88.
For example, in the most extreme circumstances, a legislature
“might permit a judge to sentence an individual for murder though
convicted only of making an illegal lane change.”
Blakely,
542 U. S., at 344 (Breyer, J., dissenting).
But, to me, the most logical solution to that
problem is not to invoke the jury-trial right, as the Court has
held. “The jury-trial right addresses only
who makes certain
determinations, not
how these determinations are made.”
Berman & Bibas, 4 Ohio St. J. Crim. L., at 58–59; see also
Bibas, 110 Yale L. J., at 1177–1180. By contrast, “the Due
Process Clause is well suited” to address unfair sentencing
procedures.
Blakely, 542 U. S., at 344 (Breyer, J.,
dissenting); see also
Morrissey v.
Brewer,
408 U.S.
471, 481 (1972) (“[D]ue process is flexible and calls for such
procedural protections as the particular situation demands”). Other
constitutional provisions, like the Eighth Amendment’s prohibition
against excessive fines and cruel and unusual punishments, also
play an obvious role in limiting the types of punishments that can
be imposed based on sentencing factors. See,
e.
g.,
Ring v.
Arizona,
536 U.S.
584, 619 (2002) (Breyer, J., concurring in judgment);
United
States v.
Bajakajian,
524 U.S.
321, 334–335 (1998).
In other words, to my mind, not every sentencing
problem is a nail requiring an
Apprendi hammer. To the
contrary, applying
Apprendi to address these and other
concerns seems to simply erect further roadblocks for policymakers
who might otherwise act to promote more fairness in sentencing.
III
So what do my concerns about
Apprendi
have to do with my analysis of the question presented in this case?
The doubts I have make me reluctant to join a ruling that extends
Apprendi’s holding unnecessarily. And, here, we need not
conclude that the occasions finding in ACCA is one to which the
Apprendi rule applies, as Justice Kavanaugh explains.
Ante, at 3 (dissenting opinion). Indeed, we have already
recognized that “[j]udges may,” consistent with the
Apprendi
rule, “resolve questions about a defendant’s past crimes
. . . that are relevant not to the defendant’s guilt for
the present offense but rather to the length of the defendant’s
sentence.”
Ante, at 3; see also
Almendarez-Torres,
523 U. S., at 239, 247.
I will use this opportunity to make one
additional observation: Not only is the majority’s approach to
ACCA’s occasions finding inconsistent with our precedent (as
Justice Kavanaugh observes,
ante, at 3–4), it is also
unworkable in practice, due to the limitations inherent in jury
presentations. That is, for all the majority’s talk of
constitutional theory, it gives little thought to “proportionality,
uniformity, and administrability,” which “are all aspects of that
basic ‘fairness’ that the Constitution demands.”
Apprendi,
530 U. S., at 559 (Breyer, J., dissenting).
As a reminder, ACCA directs sentencing courts to
impose a 15-year mandatory minimum for a violation of 18
U. S. C. §922(g) if the defendant has three qualifying
prior convictions “committed on occasions different from one
another.” 18 U. S. C. §924(e)(1). In
Wooden, we
explained that ACCA’s occasions finding is not a simple up-or-down
assessment; rather, the factfinder must consider “a range of
circumstances,” including the timing, location, character, and
relationship of the crimes. 595 U. S., at 369. The majority
now concludes that, “given the intensely factual nature of this
inquiry . . . , a jury must resolve it.”
Ante, at 4. I come to exactly the opposite conclusion, based
on the nature of the factfinding that judges and juries engage
in—and their relative competencies. In my view, “the intensely
factual nature of this inquiry,”
ibid., when combined with
the fact that ACCA’s occasions finding often pertains to long-past
prior criminal behavior by the defendant, is precisely why a jury
is poorly situated to make such a finding, as opposed to a judge.
As I explain below, the particular factfinding determination that
the occasions inquiry requires is unsuitable for juries to decide
in terms of both fairness and efficiency—two crucial criteria for
procedural requirements in a criminal justice system.
A
As to fairness, ACCA’s occasions determination
involves facts about a defendant’s past crimes that can prejudice
the jury against the defendant and thereby make it more difficult
for the jury to find in the defendant’s favor with respect to the
occasions issue.
Past criminality on a defendant’s part “is a
traditional, if not the most traditional, basis for a sentencing
court’s increasing an offender’s sentence.”
Almendarez-Torres, 523 U. S., at 243. And there is a
good reason judges have long been entrusted with finding facts
related to recidivism—because “the introduction of evidence of a
defendant’s prior crimes” to a jury “risks significant prejudice.”
Id., at 235. This Court has specifically recognized the
substantial risk of “generalizing a defendant’s earlier bad act
into bad character and taking that as raising the odds that he did
the later bad act now charged.”
Old Chief v.
United
States,
519 U.S.
172, 180–181 (1997). Empirical research has further confirmed
the commonsense conclusion that criminal history is prejudicial.
See,
e.
g., T. Eisenberg & V. Hans, Taking a Stand
on Taking the Stand: The Effect of a Prior Criminal Record on the
Decision To Testify and on Trial Outcomes, 94 Cornell L. Rev.
1353, 1357 (2009) (“Juries appear to rely on criminal records to
convict when other evidence in the case normally would not support
conviction”).
As Justice Kavanaugh notes, such fairness
concerns have long compelled courts to keep facts concerning a
defendant’s criminal history away from juries.
Ante, at
16–17. “Courts that follow the common-law tradition almost
unanimously have come to disallow resort by the prosecution to any
kind of evidence of a defendant’s evil character to establish a
probability of his guilt.”
Michelson v.
United
States,
335 U.S.
469, 475 (1948). This principle—that juries would be prejudiced
by exposure to a defendant’s criminal history—is, in fact, a
cornerstone of criminal procedure.[
3]
The majority seems to agree that past-crimes
evidence is prejudicial, at least to a certain extent. It says
that, when ACCA’s occasions inquiry is set for jury determination
under the
Apprendi rule (as we require today), trial courts
will need “to address the prejudicial effect evidence about a
defendant’s past crimes can have on a jury.”
Ante, at 24. In
the majority’s view, however, the “[m]ost obviou[s]” solution is
bifurcating the proceedings between the §922(g) charge and ACCA’s
occasions determination.
Ibid. But bifurcation is not an
easy fix, as Justice Kavanaugh explains.
Ante, at 18. For
one thing, bifurcation of trial proceedings imposes significant
additional burdens on the criminal justice system.
Ibid. I
will point to an additional problem: Even bifurcation may not
suffice to completely eliminate potential juror prejudice with
respect to the occasions finding.
Consider, if you will, the kinds of evidence the
prosecution might ask a jury to evaluate in a bifurcated trial over
(the comparatively pedestrian) question whether a defendant’s prior
crimes were committed on different occasions. Also imagine the
defendant’s potential arguments in response. Concerning the latter,
in this case, Erlinger’s counsel suggested that his past
crimes—three burglaries that occurred on different dates over an
8-day period—could conceivably constitute a single occasion of
criminality if those break-ins were all committed “to get money to
pay [a] gambling debt.” Tr. of Oral Arg. 25. Under
Wooden’s
inquiry, however, any jury making the occasions determination in
this case would not be directed just to consider whether Erlinger
did, in fact, have a gambling problem—they would also have to
determine exactly what happened during each of Erlinger’s
burglaries.
The jury would be called upon to assess
Erlinger’s credibility and decide whether they believed his
gambling-debt story in light of his criminality, and the potential
prejudice from entertaining evidence about all the sordid details
of Erlinger’s underlying crimes makes a fair credibility finding
much more difficult. In other words, Erlinger’s past criminal
behavior, and the fact that he was previously convicted of these
crimes (more than one of them), conclusively establishes that
Erlinger is a convicted serial burglar—and perhaps a violent one at
that—rendering any credibility finding in the defendant’s favor
significantly more dubious. See
Shepard v.
United
States,
544 U.S.
13, 38 (2005) (O’Connor, J., dissenting) (observing that the
“prejudice is likely to be especially strong in ACCA cases, where
the relevant prior crimes are, by definition, ‘violent’ ”);
see also
Michelson, 335 U. S., at 476 (observing that
prior-crimes evidence can “overpersuade” jurors “to prejudge [a
defendant] with a bad general record and deny him a fair
opportunity to defend against” the Government’s arguments).
To be sure, preventing undue prejudice against
defendants is an important responsibility of judges, and it is
certainly possible that, with the benefit of careful limiting
instructions, jurors would be able to dispassionately consider
evidence about the nature and extent of a defendant’s past
criminality only for the narrow question whether the defendant’s
past crimes were, in fact, committed on separate occasions. See
Spencer v.
Texas,
385 U.S.
554, 562 (1967). But given what
Wooden calls for, it
seems as though some degree of prejudice from the sheer fact of the
defendant’s having been previously convicted of crimes of this
nature is inevitable. See
Krulewitch v.
United
States,
336 U.S.
440, 453 (1949) (Jackson, J., concurring) (“The naive
assumption that prejudicial effects can be overcome by instructions
to the jury, all practicing lawyers know to be unmitigated fiction”
(citation omitted)).
B
The potential for prejudice is not the only
practical problem. At the same time, a jury trial—a highly
regulated, inflexible proceeding—is, by its nature, poorly equipped
to deal with the fine-grained, nuanced determinations based on
sometimes-decades-old evidence that are necessary to fairly
adjudicate factual questions like the one that ACCA’s occasions
inquiry raises. This mismatch, too, persists even in the proposed
world of bifurcated trials. Bifurcated trials or no, it is wildly
inefficient for our system to try to fit the square peg of
factfinding related to past criminality for sentencing purposes
into the round hole of the existing processes that govern jury
determinations.
As I have explained, factfinding at trial
(before a jury) and factfinding at sentencing (before a judge)
differ procedurally in fundamental ways. See Part I–A,
supra. Jury factfinding is restricted and regimented,
because a jury trial is “confine[d] . . . to evidence
that is strictly relevant to the particular offense charged.”
Williams, 337 U. S., at 247. Meanwhile, because “[a]
sentencing judge . . . is not confined to the narrow
issue of guilt,” she is not bound by “strict evidentiary procedural
limitations”; rather, when determining the appropriate sentence, a
judge “exercise[s] a wide discretion in the sources and types of
evidence used to assist [her] in determining the kind and extent of
punishment to be imposed.”
Id., at 246–247.
Again, ACCA’s occasions determination is
illustrative. Recall that
Wooden requires a nuanced
consideration of various factors, such as timing, location, and
character of the past crimes, to determine whether those past
crimes constituted separate “episodes of criminal activity.” 595
U. S., at 369. The “strict evidentiary procedural limitations”
that apply to juries,
Williams, 337 U. S., at 246, make
it impractical for juries to conduct this kind of assessment. To
take just one example, ACCA cases typically involve predicate
crimes that may have occurred years—or even, as here,
decades—ago. See
ante, at 2–3. Erlinger’s sentencing
for the crime to which ACCA potentially applies took place in 2022.
See App. to Pet. for Cert. 14a. The three burglaries that gave rise
to the occasions issue occurred 31 years prior—in 1991.
Id.,
at 21a. Given the rigidity of trials and the frailty of trial
evidence, how—that is,
based on what evidence—is a jury
supposed to go about making the occasions finding in this case?
The majority today boldly relegates this
particular factfinding task to a jury, without pausing to explain
how this assignment will reasonably be accomplished in light of
these practical limitations. “But the real world of criminal
justice . . . can function only with the help of
procedural compromises, particularly in respect to sentencing.”
Apprendi, 530 U. S., at 555 (Breyer, J., dissenting).
Even setting aside that a perfectly competent alternative
participant in the criminal justice process (the judge) stands
ready to do this (and can do it quite well, with the flexibility
her role affords), I foresee many practical obstacles to jury
factfinding concerning this particular recidivism fact, not the
least of which is that evidence required to make the occasions
determination with any reliability may not be in a form suitable
for submission to a jury, or simply may no longer exist.
Issues concerning the state of the evidence with
respect to decades-old past crimes could be why, between
Wooden and now, most sentencing judges have made ACCA’s
occasions finding based solely on so-called
Shepard
documents, which “include judicial records, plea agreements, and
colloquies between a judge and the defendant” from the past
criminal proceeding.
Ante, at 15. In the context of a
sentencing hearing, a judge—who, after all, has professional
familiarity with these kinds of records—can consider such documents
with minimal effort. Judges know how to interpret these sorts of
court records. Additionally, during sentencing proceedings,
parties’ arguments and evidence are not restricted, so based on
what the parties find, as well as what evidence still exists,
arguments can be made directly to the judge about whether the
occasions inquiry is satisfied, including arguments that speak
directly to imperfect recordkeeping and any potentially material
gaps.
Not so for a jury trial—at least not easily.
There is a good reason why lawyers present live witnesses to
juries: Showing the cold record documenting an event to a jury has
much less value. At a minimum, a jury tasked with making the
occasions finding would likely need an explanation of what the
Shepard documents say, and in this adversarial context, that
explanation could probably not be provided by the lawyers on their
own—it would most likely have to take the form of witness
testimony.
And if we were to authorize juries to go beyond
the
Shepard documents related to past crimes in order to
make the occasions finding, that inquiry would probably be even
more difficult to conduct reliably. Why? First, because,
presumably, the original evidence and witnesses related to a
defendant’s past crimes would have to be somehow located and
produced, despite the passage of time and potential
chain-of-custody issues. Then, once we overcome those hurdles, the
rules of evidence would most likely come into play—screening out
potentially probative considerations. By comparison, a sentencing
judge can account for imperfections in the evidentiary records and
is permitted to consider all manner of inadmissible evidence (such
as out-of-court affidavits or hearsay testimony) in order to
sentence. See
Williams, 337 U. S., at 246.[
4]
Also, in terms of the most efficient use of the
justice system’s limited resources, any witnesses could testify in
narrative form when appearing before a sentencing judge as a
factfinder, at a hearing designated for this purpose, without
requiring examination by lawyers. In a jury trial, by contrast,
such evidence would likely have to satisfy “strict evidentiary
procedural limitations,”
ibid., such as direct, cross, and
redirect examination. That may prove particularly and prohibitively
cumbersome for the occasions inquiry, which is one small piece of
the larger sentencing puzzle.
All of these practical considerations lead me to
believe that insisting that juries make factual determinations
about a defendant’s past criminal behavior—and especially the
“intensely factual” one at issue here,
ante, at 4—is not
only unwise but unworkable. Again, how will juries of today
actually determine what happened—and why—with respect to
long-forgotten crimes of yesteryear? Who will testify about those
crimes (who is still around and remembers)? And where is the
physical evidence that was originally used to try those cases
now?
These kinds of challenges present one obvious
reason that, even as the
Apprendi Court held that the
Constitution prohibits judges from finding facts “that increas[e]
the penalty for a crime beyond the prescribed statutory maximum,”
it also included an express exemption—“[o]ther than the fact of a
prior conviction.” 530 U. S., at 490. Perhaps the Court saw
fit to expressly exclude the fact of a prior conviction from its
original holding in
Apprendi because of the reality that
requiring juries to find recidivism facts is simply not doable. See
id., at 555 (Breyer, J., dissenting) (emphasizing “the
impractical nature” of the
Apprendi rule).
But, hey, says today’s majority, why should
unrealistic expectations stop the Court from nonetheless requiring
this to be done? Not one to be attentive to practical realities,
especially when it believes it has constitutional theory on its
side, the majority now plows forward, pushing the
Apprendi
doctrine into the realm of facts related to recidivism, which
Apprendi had excluded, and which lower courts have nearly
uniformly reserved for sentencing judges in the two decades since
that opinion issued.
The bottom line is this: Unlike juries, judges
have the competency, wherewithal, and flexibility to assess facts
related to defendants’ past crimes and to handle, in a balanced
way, the various practical problems that reliance on that kind of
evidence raises. All things considered, then, committing the
factfinding exercise related to ACCA’s occasions inquiry to judges
is by far more efficient, and probably more fair to participants in
the justice system overall, than requiring juries to make that
finding. For this reason, too, this Court should have continued to
allow judges to do what they have always done and what they do
best—make factual findings related to a defendant’s criminal
history, as
Apprendi seems to permit, through its acceptance
of
Almendarez-Torres.
* * *
Judges take into account all kinds of facts
about a criminal offense and the defendant when sentencing—they
always have, and they always will. Doing so is, in fact, how a
judge goes about determining what sentence to impose in a given
case. Thus, the notion that it is possible for judges to find facts
in order to “lower” but not “increase” a defendant’s sentence,
ante, at 10, n. 1 (emphasis deleted), is a theoretical
concept that bears no relationship to how sentencing actually works
in a courtroom.
This might well be why, in reality, judges have
continued to find facts that relate to the penalties they impose on
criminal defendants (even facts that they ultimately rely on to
give a higher sentence than the defendant may have otherwise
received) regardless of this Court’s pronouncements purporting to
vindicate defendants’ constitutional rights by giving juries the
responsibility to make those particular factual determinations.
Ultimately, then, all the
Apprendi rule accomplishes on the
ground is impeding legislative directives to courts about the
exercise of judicial discretion when sentencing—a development that,
in my view, does not redound to the benefit of defendants
collectively, the criminal justice system, or our democratic
society.
In any event, before today, recidivism facts in
particular have been specifically reserved for judges to determine;
Apprendi itself expressly exempted the fact of a prior
conviction from the rule it was announcing. I would not extend the
Apprendi rule to cover this kind factfinding now, especially
since applying
Apprendi to recidivism facts creates a host
of practical problems that pertain to fairness and efficiency.
Because the Court applies the
Apprendi doctrine to
recidivism findings when it did not have to do so, and also reaches
that conclusion without concern for the myriad practical
difficulties that arise from this determination, I respectfully
dissent.