Pennsylvania's Mandatory Minimum Sentencing Act (Act) provides
that anyone convicted of certain enumerated felonies is subject to
a mandatory minimum sentence of five years' imprisonment if the
sentencing judge -- upon considering the evidence introduced at the
trial and any additional evidence offered by either the defendant
or the Commonwealth at the sentencing hearing -- finds, by a
preponderance of the evidence, that the defendant "visibly
possessed a firearm" during the commission of the offense. The Act,
which also provides that visible possession shall not be an element
of the crime, operates to divest the judge of discretion to impose
any sentence of less than five years for the underlying felony, but
does not authorize a sentence in excess of that otherwise allowed
for the offense. Each of the petitioners was convicted of one of
the Act's enumerated felonies, and in each case the Commonwealth
gave notice that at sentencing it would seek to proceed under the
Act. However, each of the sentencing judges found the Act
unconstitutional and imposed a lesser sentence than that required
by the Act. The Pennsylvania Supreme Court consolidated the
Commonwealth's appeals, vacated petitioners' sentences, and
remanded for sentencing pursuant to the Act. The court held that
the Act was consistent with due process, rejecting petitioners'
principal argument that visible possession of a firearm was an
element of the crimes for which they were sentenced, and thus must
be proved beyond a reasonable doubt under
In re Winship,
397 U. S. 358, and
Mullaney v. Wilbur, 421 U. S. 684.
Held:
1. A State may properly treat visible possession of a firearm as
a sentencing consideration rather than an element of a particular
offense that must be proved beyond a reasonable doubt. This case is
controlled by
Patterson v. New York, 432 U.
S. 197, which rejected a claim that, whenever a State
links the "severity of punishment" to the "presence or absence of
an identified fact" the State must prove that fact beyond a
reasonable doubt. While there are constitutional limits beyond
which the States may not go in this regard, the applicability of
the reasonable doubt standard is usually dependent on how a State
defines the offense that is charged in any given case. Here, the
Pennsylvania Legislature has made visible possession of a firearm a
sentencing factor that comes into play only after the defendant has
been found guilty of one of the
Page 477 U. S. 80
enumerated crimes beyond a reasonable doubt, and the
constitutional limits to a State's power are not exceeded by the
Act, which only raises the minimum sentence that may be imposed and
neither alters the maximum sentence nor creates a separate offense
calling for a separate penalty.
Specht v. Patterson,
386 U. S. 605,
distinguished. Pp.
447 U. S.
84-91.
2. There is no merit to petitioners' contention that, even
though States may treat visible possession of a firearm as a
sentencing consideration, rather than an element of a particular
offense, due process nonetheless requires that visible possession
be proved by at least clear and convincing evidence. The
preponderance standard satisfies due process. Sentencing courts
have traditionally heard evidence and found facts without any
prescribed burden of proof at all. Nothing in Pennsylvania's scheme
warrants constitutionalizing burdens of proof at sentencing. Pp.
477 U. S.
91-93.
3. Nor is there merit to petitioners' claim that the Act denies
them their Sixth Amendment right to a trial by jury. There is no
Sixth Amendment right to jury sentencing, even where the sentence
turns on specific findings of fact. P.
477 U. S.
93.
508 Pa. 25,
494
A.2d 354, affirmed.
REHNQUIST, J., delivered the opinion of the Court, in which
BURGER, C.J., and WHITE, POWELL, and O'CONNOR, JJ., joined.
MARSHALL, J., filed a dissenting opinion, in which BRENNAN and
BLACKMUN, JJ., joined,
post, p. 93. STEVENS, J., filed a
dissenting opinion,
post, p.
477 U. S.
96.
JUSTICE REHNQUIST delivered the opinion of the Court.
We granted certiorari to consider the constitutionality, under
the Due Process Clause of the Fourteenth Amendment and the jury
trial guarantee of the Sixth Amendment, of Pennsylvania's Mandatory
Minimum Sentencing Act, 42 Pa.Cons.Stat. § 9712 (1982) (the
Act).
Page 477 U. S. 81
I
The Act was adopted in 1982. It provides that anyone convicted
of certain enumerated felonies is subject to a mandatory minimum
sentence of five years' imprisonment if the sentencing judge finds,
by a preponderance of the evidence, that the person "visibly
possessed a firearm" during the commission of the offense. At the
sentencing hearing, the judge is directed to consider the evidence
introduced at trial and any additional evidence offered by either
the defendant or the Commonwealth. § 9712(b). [
Footnote 1] The Act operates to divest
Page 477 U. S. 82
the judge of discretion to impose any sentence of less than five
years for the underlying felony; it does not authorize a sentence
in excess of that otherwise allowed for that offense.
Each petitioner was convicted of, among other things, one of §
9712's enumerated felonies. Petitioner McMillan, who shot his
victim in the right buttock after an argument over a debt, was
convicted by a jury of aggravated assault. Petitioner Peterson shot
and killed her husband and, following a bench trial, was convicted
of voluntary manslaughter. Petitioner Dennison shot and seriously
wounded an acquaintance and was convicted of aggravated assault
after a bench trial. Petitioner Smalls robbed a seafood store at
gunpoint; following a bench trial, he was convicted of robbery. In
each case, the Commonwealth gave notice that, at sentencing, it
would seek to proceed under the Act. No § 9712 hearing was held,
however, because each of the sentencing judges before whom
petitioners appeared found the Act unconstitutional; each imposed a
lesser sentence than that required by the Act. [
Footnote 2]
Page 477 U. S. 83
The Commonwealth appealed all four cases to the Supreme Court of
Pennsylvania. That court consolidated the appeals and unanimously
concluded that the Act is consistent with due process.
Commonwealth v. Wright, 508 Pa. 25,
494 A.2d
354 (1985). Petitioners' principal argument was that visible
possession of a firearm is an element of the crimes for which they
were being sentenced, and thus must be proved beyond a reasonable
doubt under
In re Winship, 397 U.
S. 358 (1970), and
Mullaney v. Wilbur,
421 U. S. 684
(1975). After observing that the legislature had expressly provided
that visible possession "shall not be an element of the crime," §
9712(b), and that the reasonable doubt standard "
has always
been dependent on how a state defines the offense'" in question,
508 Pa. at 34, 494 A.2d at 359, quoting Patterson v. New
York, 432 U. S. 197,
432 U. S. 211,
n. 12 (1977), the court rejected the claim that the Act effectively
creates a new set of upgraded felonies of which visible possession
is an "element." Section 9712, which comes into play only after the
defendant has been convicted of an enumerated felony, neither
provides for an increase in the maximum sentence for such felony
nor authorizes a separate sentence; it merely requires a minimum
sentence of five years, which may be more or less than the minimum
sentence that might otherwise have been imposed. And consistent
with Winship, Mullaney, and Patterson, the Act
"creates no presumption as to any essential fact, and places no
burden on the defendant"; it "in no way relieve[s] the prosecution
of its burden of proving guilt." 508 Pa. at 35, 494 A.2d at
359.
Petitioners also contended that, even if visible possession is
not an element of the offense, due process requires more than proof
by a preponderance of the evidence. The Supreme Court of
Pennsylvania rejected this claim as well, holding that the
preponderance standard satisfies due process under the approach set
out in
Addington v. Texas, 441 U.
S. 418 (1979). The Commonwealth's interest in deterring
the illegal use of firearms and in sure punishment for those
who
Page 477 U. S. 84
commit crimes with guns is as compelling as a convicted
defendant's contervailing liberty interest, which has been
substantially diminished by a guilty verdict. Moreover, the risk of
error in the context of a § 9712 proceeding is comparatively slight
-- visible possession is a simple, straightforward issue
susceptible of objective proof. On balance, the court concluded, it
is reasonable for the defendant and the Commonwealth to share
equally in any risk of error. The court vacated petitioners'
sentences and remanded for sentencing pursuant to the Act. One
justice concurred and filed a separate opinion.
We granted certiorari, 474 U.S. 815 (1985), and now affirm.
II
Petitioners argue that, under the Due Process Clause as
interpreted in
Winship and
Mullaney, if a State
wants to punish visible possession of a firearm, it must undertake
the burden of proving that fact beyond a reasonable doubt. We
disagree.
Winship held that
"the Due Process Clause 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."
397 U.S. at
397 U. S. 364.
In
Mullaney v. Wilbur, we held that the Due Process
Clause
"requires the prosecution to prove beyond a reasonable doubt the
absence of the heat of passion on sudden provocation when the issue
is properly presented in a homicide case."
421 U.S. at
421 U. S. 704.
But in
Patterson, we rejected the claim that, whenever a
State links the "severity of punishment" to "the presence or
absence of an identified fact," the State must prove that fact
beyond a reasonable doubt. 432 U.S. at
432 U. S. 214;
see also id. at
432 U. S. 207
(State need not "prove beyond a reasonable doubt every fact, the
existence or nonexistence of which it is willing to recognize as an
exculpatory or mitigating circumstance affecting the degree of
culpability or the severity of the punishment"). In particular, we
upheld against a due process challenge New York's law placing
on
Page 477 U. S. 85
defendants charged with murder the burden of proving the
affirmative defense of extreme emotional disturbance.
Patterson stressed that in determining what facts must
be proved beyond a reasonable doubt the state legislature's
definition of the elements of the offense is usually
dispositive:
"[T]he Due Process Clause requires the prosecution to prove
beyond a reasonable doubt all of the elements
included in the
definition of the offense of which the defendant is
charged."
Id. at
432 U. S. 210
(emphasis added). While "there are obviously constitutional limits
beyond which the States may not go in this regard,"
ibid.,
"[t]he applicability of the reasonable doubt standard . . . has
always been dependent on how a State defines the offense that is
charged in any given case,"
id. at
432 U. S. 211,
n. 12. Patterson rests on a premise that bears repeating here:
"It goes without saying that preventing and dealing with crime
is much more the business of the States than it is of the Federal
Government,
Irvine v. California, 347 U. S.
128,
347 U. S. 134 (1954)
(plurality opinion), and that we should not lightly construe the
Constitution so as to intrude upon the administration of justice by
the individual States. Among other things, it is normally"
"within the power of the State to regulate procedures under
which its laws are carried out, including the burden of producing
evidence and the burden of persuasion,"
"and its decision in this regard is not subject to proscription
under the Due Process Clause unless 'it offends some principle of
justice so rooted in the traditions and conscience of our people as
to be ranked as fundamental.'
Speiser v. Randall,
357 U. S.
513,
357 U. S. 523 (1958)."
Id. at
432 U. S.
201-202 (citations omitted).
We believe that the present case is controlled by
Patterson, our most recent pronouncement on this subject,
rather than by
Mullaney. As the Supreme Court of
Pennsylvania observed, the Pennsylvania Legislature has expressly
provided that visible possession of a firearm is not an element
of
Page 477 U. S. 86
the crimes enumerated in the mandatory sentencing statute, §
9712(b), but instead is a sentencing factor that comes into play
only after the defendant has been found guilty of one of those
crimes beyond a reasonable doubt. Indeed, the elements of the
enumerated offenses, like the maximum permissible penalties for
those offenses, were established long before the Mandatory Minimum
Sentencing Act was passed. [
Footnote 3] While visible possession might well have been
included as an element of the enumerated offenses, Pennsylvania
chose not to redefine those offenses in order to so include it, and
Patterson teaches that we should hesitate to conclude that
due process bars the State from pursuing its chosen course in the
area of defining crimes and prescribing penalties.
As
Patterson recognized, of course, there are
constitutional limits to the State's power in this regard; in
certain limited circumstances,
Winship's reasonable doubt
requirement applies to facts not formally identified as elements of
the offense charged. Petitioners argue that Pennsylvania has gone
beyond those limits, and that its formal provision that visible
possession is not an element of the crime is therefore of no
effect. We do not think so. While we have never attempted to define
precisely the constitutional limits noted in
Patterson,
i.e., the extent to which due process forbids the reallocation
or reduction of burdens of proof in criminal cases, and do not do
so today, we are persuaded by several factors that Pennsylvania's
Mandatory Minimum Sentencing Act does not exceed those limits.
We note first that the Act plainly does not transgress the
limits expressly set out in
Patterson. Responding to the
concern that its rule would permit States unbridled power to
redefine crimes to the detriment of criminal defendants, the
Patterson Court advanced the unremarkable proposition that
Page 477 U. S. 87
the Due Process Clause precludes States from discarding the
presumption of innocence:
"'[I]t is not within the province of a legislature to declare an
individual guilty or presumptively guilty of a crime.'
McFarland v. American Sugar Rfg. Co., 241 U. S.
79,
241 U. S. 86 (1916). The
legislature cannot"
"validly command that the finding of an indictment, or mere
proof of the identity of the accused, should create a presumption
of the existence of all the facts essential to guilt."
"
Tot v. United States, 319 U. S.
463,
319 U. S. 469 (1943)."
Patterson, 432 U.S. at
432 U. S.
210.
Here, of course, the Act creates no presumptions of the sort
condemned in
McFarland v. American Sugar Rfg. Co.,
241 U. S. 79 (1916)
(presumption from price sugar refiner paid for sugar that refiner
was party to a monopoly), or
Tot v. United States,
319 U. S. 463
(1943) (presumption that convicted felon who possessed a weapon
obtained it in interstate commerce). Nor does it relieve the
prosecution of its burden of proving guilt; § 9712 only becomes
applicable after a defendant has been duly convicted of the crime
for which he is to be punished.
The Court in Mullaney observed, with respect to the main
criminal statute invalidated in that case, that, once the State
proved the elements which Maine required it to prove beyond a
reasonable doubt, the defendant faced "a differential in sentencing
ranging from a nominal fine to a mandatory life sentence." 421 U.S.
at
421 U. S. 700.
In the present case, the situation is quite different. Of the
offenses enumerated in the Act, third-degree murder, robbery as
defined in 18 Pa.Cons.Stat. § 3701(a)(1) (1982), kidnaping, rape,
and involuntary deviate sexual intercourse are first-degree
felonies subjecting the defendant to a maximum of 20 years'
imprisonment. § 1103(1). Voluntary manslaughter and aggravated
assault as defined in § 2702(a)(1) are felonies of the second
degree carrying a maximum sentence of 10 years. § 1103(2). Section
9712 neither alters the maximum penalty for the crime
Page 477 U. S. 88
committed nor creates a separate offense calling for a separate
penalty; it operates solely to limit the sentencing court's
discretion in selecting a penalty within the range already
available to it without the special finding of visible possession
of a firearm. Section 9712 "ups the ante" for the defendant only by
raising to five years the minimum sentence which may be imposed
within the statutory plan. [
Footnote 4] The statute gives no impression of having been
tailored to permit the visible possession finding to be a tail
which wags the dog of the substantive offense. Petitioners' claim
that visible possession under the Pennsylvania statute is "really"
an element of the offenses for which they are being punished --
that Pennsylvania has in effect defined a new set of upgraded
felonies -- would have at least more superficial appeal if a
finding of visible possession exposed them to greater or additional
punishment,
cf. 18 U.S.C. § 2113(d) (providing separate
and greater punishment for bank robberies accomplished through "use
of a dangerous weapon or device"), but it does not.
Petitioners contend that this Court's decision in
Specht v.
Patterson, 386 U. S. 605
(1967), requires the invalidation of the Pennsylvania statute
challenged here. Again, we think petitioners simply read too much
into one of our previous decisions. Under the Colorado scheme at
issue in
Specht, conviction of a sexual offense otherwise
carrying a maximum penalty of 10 years exposed a defendant to an
indefinite term to and including life imprisonment if the
sentencing judge made a post-trial finding that the defendant posed
"a threat of bodily harm to members of the public, or is an
habitual offender and mentally ill,"
id. at
386 U. S. 607.
This finding could be made, without notice or any "hearing in the
normal sense,"
Page 477 U. S. 89
based solely on a presentence psychiatric report.
Id.
at
386 U. S. 608.
This Court held that the Colorado scheme failed to satisfy the
requirements of due process, and that the defendant had a right to
be present with counsel, to be heard, to be confronted with and to
cross-examine the witnesses against him, and to offer evidence of
his own.
Petitioners suggest that, had
Winship already been
decided at the time of
Specht, the Court would have also
required that the burden of proof as to the post-trial findings be
beyond a reasonable doubt. But even if we accept petitioners'
hypothesis, we do not think it avails them here. The Court in
Specht observed that, following trial, the Colorado
defendant was confronted with "a radically different situation"
from the usual sentencing proceeding. The same simply is not true
under the Pennsylvania statute. The finding of visible possession
of a firearm, of course, "ups the ante" for a defendant, or it
would not be challenged here; but it does so only in the way that
we have previously mentioned, by raising the minimum sentence that
may be imposed by the trial court.
Finally, we note that the specter raised by petitioners of
States restructuring existing crimes in order to "evade" the
commands of
Winship just does not appear in this case
[
Footnote 5] As noted above, §
9712's enumerated felonies retain the same elements they had before
the Mandatory Minimum Sentencing Act was passed. The Pennsylvania
Legislature did not change the definition of any existing offense.
It simply took one factor that has always been considered by
sentencing courts to bear on punishment -- the instrumentality used
in committing a violent felony -- and dictated the precise
weight
Page 477 U. S. 90
to be given that factor if the instrumentality is a firearm.
Pennsylvania's decision to do so has not transformed against its
will a sentencing factor into an "element" of some hypothetical
"offense."
Petitioners seek support for their due process claim by
observing that many legislatures have made possession of a weapon
an element of various aggravated offenses. [
Footnote 6] But the fact that the States have
formulated different statutory schemes to punish armed felons is
merely a reflection of our federal system, which demands
"[t]olerance for a spectrum of state procedures dealing with a
common problem of law enforcement,"
Spencer v. Texas,
385 U. S. 554,
385 U. S. 566
(1967). That Pennsylvania's particular approach has been adopted in
few other States does not render Pennsylvania's choice
unconstitutional. [
Footnote 7]
See Patterson, 432 U.S. at
432 U. S. 211;
cf. Spaziano v. Florida, 468 U. S. 447,
468 U. S. 464
(1984). Nor does the historical test advanced by the
Patterson dissent, on which petitioners apparently also
rely, materially advance their cause. While it is surely true
that,
"[f]or hundreds of years, some offenses have been considered
more serious and the punishment made more severe if the offense was
committed with a weapon or while armed,"
Brief for Petitioners 17, n. 11, petitioners do not contend that
the particular factor made relevant here -- visible possession of a
firearm -- has historically been treated "in the Anglo-American
legal tradition" as requiring proof beyond a reasonable doubt,
Patterson, 432 U.S. at
432 U. S. 226
(POWELL, J., dissenting).
See also id. at
432 U. S.
229,
Page 477 U. S. 91
n. 14 (POWELL, J., dissenting) (approving new scheme under which
State put burden on armed robbery defendant to prove that gun was
unloaded or inoperative in order to receive lower sentence).
We have noted a number of differences between this case and
Winship, Mullaney, and
Specht, and we find these
differences controlling here. Our inability to lay down any "bright
line" test may leave the constitutionality of statutes more like
those in
Mullaney and
Specht than is the
Pennsylvania statute to depend on differences of degree, but the
law is full of situations in which differences of degree produce
different results. We have no doubt that Pennsylvania's Mandatory
Minimum Sentencing Act falls on the permissible side of the
constitutional line.
III
Having concluded that States may treat "visible possession of a
firearm" as a sentencing consideration, rather than an element of a
particular offense, we now turn to petitioners' subsidiary claim
that due process nonetheless requires that visible possession be
proved by at least clear and convincing evidence. Like the court
below, we have little difficulty concluding that, in this case, the
preponderance standard satisfies due process. Indeed, it would be
extraordinary if the Due Process Clause, as understood in
Patterson, plainly sanctioned Pennsylvania's scheme, while
the same Clause explained in some other line of less clearly
relevant cases imposed more stringent requirements. There is, after
all, only one Due Process Clause in the Fourteenth Amendment.
Furthermore, petitioners do not and could not claim that a
sentencing court may never rely on a particular fact in passing
sentence without finding that fact by "clear and convincing
evidence." Sentencing courts have traditionally heard evidence and
found facts without any prescribed burden of proof at all.
See
Williams v. New York, 337 U. S. 241
(1949). Pennsylvania has deemed a particular fact relevant and
prescribed a
Page 477 U. S. 92
particular burden of proof. We see nothing in Pennsylvania's
scheme that would warrant constitutionalizing burdens of proof at
sentencing. [
Footnote 8]
Petitioners apparently concede that Pennsylvania's scheme would
pass constitutional muster if only it did not remove the sentencing
court's discretion,
i.e., if the legislature had simply
directed the court to
consider visible possession in
passing sentence. Brief for Petitioners 31-32. We have some
difficulty fathoming why the due process calculus would change
simply because the legislature has seen fit to provide sentencing
courts with additional guidance. Nor is there merit to the claim
that a heightened burden of proof is required because visible
possession is a fact "concerning the crime committed," rather than
the background or character of the defendant.
Ibid.
Sentencing courts necessarily consider the circumstances of an
offense in selecting the appropriate punishment, and we have
consistently approved sentencing schemes that mandate consideration
of facts related to the crime,
e.g., Proffitt v. Florida,
428 U. S. 242
(1976), without suggesting that those facts must be proved beyond a
reasonable doubt. The Courts of Appeals have uniformly rejected due
process challenges to the preponderance standard under the federal
"dangerous special offender" statute, 18
Page 477 U. S. 93
U.S.C. § 3575, which provides for an enhanced sentence if the
court concludes that the defendant is both "dangerous" and a
"special offender."
See United States v. Davis, 710 F.2d
104, 106 (CA3) (collecting cases),
cert. denied, 464 U.S.
1001 (1983).
IV
In light of the foregoing, petitioners' final claim -- that the
Act denies them their Sixth Amendment right to a trial by jury --
merits little discussion. Petitioners again argue that the jury
must determine all ultimate facts concerning the offense committed.
Having concluded that Pennsylvania may properly treat visible
possession as a sentencing consideration, and not an element of any
offense, we need only note that there is no Sixth Amendment right
to jury sentencing, even where the sentence turns on specific
findings of fact.
See Spaziano v. Florida, 468 U.S. at
468 U. S.
459.
For the foregoing reasons, the judgment of the Supreme Court of
Pennsylvania is affirmed.
It is so ordered.
[
Footnote 1]
Section 9712 provides in full:
"(a) Mandatory sentence. -- Any person who is convicted in any
court of this Commonwealth of murder of the third degree, voluntary
manslaughter, rape, involuntary deviate sexual intercourse, robbery
as defined in 18 Pa.C.S. § 3701(a)(1)(i), (ii) or (iii) (relating
to robbery), aggravated assault as defined in 18 Pa.C.S. §
2702(a)(1) (relating to aggravated assault) or kidnapping, or who
is convicted of attempt to commit any of these crimes, shall, if
the person visibly possessed a firearm during the commission of the
offense, be sentenced to a minimum sentence of at least five years
of total confinement notwithstanding any other provision of this
title or other statute to the contrary."
"(b) Proof at sentencing. -- Provisions of this section shall
not be an element of the crime and notice thereof to the defendant
shall not be required prior to conviction, but reasonable notice of
the Commonwealth's intention to proceed under this section shall be
provided after conviction and before sentencing. The applicability
of this section shall be determined at sentencing. The court shall
consider any evidence presented at trial and shall afford the
Commonwealth and the defendant an opportunity to present any
necessary additional evidence and shall determine, by a
preponderance of the evidence, if this section is applicable."
"(c) Authority of court in sentencing. -- There shall be no
authority in any court to impose on an offender to which this
section is applicable any lesser sentence than provided for in
subsection (a) or to place such offender on probation or to suspend
sentence. Nothing in this section shall prevent the sentencing
court from imposing a sentence greater than that provided in this
section. Sentencing guidelines promulgated by the Pennsylvania
Commission on Sentencing shall not supersede the mandatory
sentences provided in this section."
"(d) Appeal by Commonwealth. -- If a sentencing court refuses to
apply this section where applicable, the Commonwealth shall have
the right to appellate review of the action of the sentencing
court. The appellate court shall vacate the sentence and remand the
case to the sentencing court for imposition of a sentence in
accordance with this section if it finds that the sentence was
imposed in violation of this section."
"(e) Definition of firearm. -- As used in this section 'firearm'
means any weapon (including a starter gun) which will or is
designed to or may readily be converted to expel a projectile by
the action of an explosive or the expansion of gas therein."
[
Footnote 2]
McMillan was sentenced to a term of 3 to 10 years for aggravated
assault; he was also convicted of possession of instruments of
crime, 18 Pa.Cons.Stat. § 2503 (1982), for which he received a
concurrent term of 2 1/2 to 5 years. Peterson received a sentence
of 1 to 6 years on the manslaughter charge, as well as a concurrent
term of 6 to 18 months for possession of instruments of crime.
Dennison received concurrent sentences of 11 1/2 to 23 months for
aggravated assault and possession of instruments of crime. Smalls
was sentenced to concurrent 4- to 8-year terms for robbery and
criminal conspiracy; he was also convicted of violating the Uniform
Firearms Act, § 6101
et seq., and reckless endangerment, §
2705, for which he was sentenced to concurrent terms of 2 1/2 to 5
years and 1 to 2 years, respectively. He received a suspended
sentence for possession of instruments of crime.
[
Footnote 3]
The elements of the enumerated offenses were established in
essentially their present form in 1972.
See 1972 Pa. Laws
No. 334, which compiled, amended, and codified the Pennsylvania
"Crimes Code." The Mandatory Minimum Sentencing Act was passed in
1982.
[
Footnote 4]
By prescribing a mandatory minimum sentence, the Act
incidentally serves to restrict the sentencing court's discretion
in setting a maximum sentence. Pennsylvania law provides that a
minimum sentence of confinement "shall not exceed one-half of the
maximum sentence imposed." 42 Pa.Cons.Stat. § 9706(b) (1982). Thus,
the shortest maximum term permissible under the Act is 10
years.
[
Footnote 5]
We reject the view that anything in the Due Process Clause bars
States from making changes in their criminal law that have the
effect of making it easier for the prosecution to obtain
convictions.
"From the vantage point of the Constitution, a change in law
favorable to defendants is not necessarily good, nor is an
innovation favorable to the prosecution necessarily bad."
Jeffries & Stephan, Defenses, Presumptions, and Burden of
Proof in the Criminal Law, 88 Yale L.J. 1325, 1361 (1979).
[
Footnote 6]
The Commonwealth argues that the statutes on which petitioners
rely typically differ from that at issue here. In particular, most
of the statutes are directed at all deadly weapons, rather than
just firearms, and most treat the armed crime as a higher grade of
offense than the unarmed crime. Brief for Respondent 11.
[
Footnote 7]
At least two States -- New Jersey,
see N.J.Stat.Ann. §
2C:43-6c (West 1982);
State v. Gantt, 186 N.J.Super. 262,
452 A.2d 477 (1982),
aff'd, 195 N.J.Super. 144,
478 A.2d 422 (App.Div.1984), and Kansas,
see
Kan.Stat.Ann. § 21-4618 (1981);
State v. Mullins, 223 Kan.
798,
577 P.2d 51
(1978) -- have statutory schemes similar to Pennsylvania's.
[
Footnote 8]
Addington v. Texas, 441 U. S. 418
(1979), and
Santosky v. Kramer, 455 U.
S. 745 (1982), which respectively applied the "clear and
convincing evidence" standard where the State sought involuntary
commitment to a mental institution and involuntary termination of
parental rights, are not to the contrary. Quite unlike the
situation in those cases, criminal sentencing takes place only
after a defendant has been adjudged guilty beyond a reasonable
doubt. Once the reasonable doubt standard has been applied to
obtain a valid conviction, "the criminal defendant has been
constitutionally deprived of his liberty to the extent that the
State may confine him."
Meachum v. Fano, 427 U.
S. 215,
427 U. S. 224
(1976). As noted in text, sentencing courts have always operated
without constitutionally imposed burdens of proof; embracing
petitioners' suggestion that we apply the clear-and-convincing
standard here would significantly alter criminal sentencing, for we
see no way to distinguish the visible possession finding at issue
here from a host of other express or implied findings sentencing
judges typically make on the way to passing sentence.
JUSTICE MARSHALL, with whom JUSTICE BRENNAN and JUSTICE BLACKMUN
join, dissenting.
I agree with much in JUSTICE STEVENS' dissent,
post at
477 U. S. 96-98.
Whether a particular fact is an element of a criminal offense that,
under
In re Winship, 397 U. S. 358
(1970), must be proved by the prosecution beyond a reasonable doubt
is a question that must be decided by this Court, and cannot be
abdicated to the States.
"[I]f
Winship were limited to those facts that
constitute a crime as defined by state law, a State could undermine
many of the interests that decision sought to protect without
effecting any substantive change in its law."
Mullaney v. Wilbur, 421 U. S. 684,
421 U. S. 698
(1975). The deference that the majority gives to the Pennsylvania
Legislature's statement that the visible possession of a firearm
should not be considered an element of the crime defined by 42
Pa.Cons.Stat. § 9712 (1982) is thus wholly inappropriate.
Page 477 U. S. 94
I would not, however, rely in this case on the formalistic
distinction between aggravating and mitigating facts. The
"continued functioning of the democratic process,"
post at
477 U. S. 100
(STEVENS, J., dissenting), might provide us with some assurance
that States will not circumvent the guarantee of
Winship
by criminalizing seemingly innocuous conduct and then placing the
burden on the defendant to establish an affirmative defense. But
this Court nonetheless must remain ready to enforce that guarantee
should the State, by placing upon the defendant the burden of
proving certain mitigating facts, effectively lighten the
constitutional burden of the prosecution with respect to the
elements of the crime.
See Patterson v. New York,
432 U. S. 197,
432 U. S.
206-207 (1977) (allowing State to require defendant to
prove extreme emotional disturbance by preponderance of the
evidence but noting that this affirmative defense "does not serve
to negative any facts of the crime which the State is to prove in
order to convict of murder").
I would put off until next Term any discussion of how mitigating
facts should be analyzed under
Winship. This issue will be
aired when the Court considers
Martin v. Ohio, No.
85-6461, cert. granted, 475 U.S. 1119 (1986), in which a defendant
challenges Ohio's requirement that the accused bear the burden of
proving a claim of self-defense by a preponderance of the evidence.
For now, it is enough to agree with JUSTICE STEVENS that,
"if a State provides that a specific component of a prohibited
transaction shall give rise both to a special stigma and to a
special punishment, that component must be treated as a 'fact
necessary to constitute the crime' within the meaning of our
holding in
In re Winship,"
post at
477 U. S. 103.
Pennsylvania has attached just such consequences to a finding that
a defendant "visibly possessed a firearm" during the commission of
any aggravated assault, and, under
Winship, the
prosecution should not be relieved of proving that fact beyond a
reasonable doubt. I dissent.
Page 477 U. S. 95
JUSTICE STEVENS, dissenting.
Petitioner Dennison, a 73-year-old man, committed an aggravated
assault upon a neighborhood youth whom he suspected of stealing
money from his house. After a trial at which the Commonwealth
proved the elements of the offense of aggravated assault beyond a
reasonable doubt, the trial judge imposed a sentence of
imprisonment of 11 1/2 to 23 months. Because he had concluded that
Pennsylvania's recently enacted Mandatory Minimum Sentencing Act,
42 Pa.Cons.Stat. § 9712 (1982), was unconstitutional, the trial
judge refused to impose the 5-year minimum sentence mandated by
that Act whenever the Commonwealth proves -- by a preponderance of
the evidence -- that the defendant "visibly possessed a firearm
during the commission of the offense," 9712(b).
The judge presiding over Dennison's trial, as well as the judges
in the other three petitioners' trials and the Superior Court
Judges hearing the appeals, all concluded that visible possession
of a firearm was an element of the offense. "
V
isibly possessed a firearm' is inarguably language which refers to
behavior which the legislature intended to prohibit." App. to Pet.
for Cert. A35. As a consequence, the prohibited conduct had to be
established by proof beyond a reasonable doubt. The Pennsylvania
Supreme Court agreed that visible possession of a firearm is
conduct that the Pennsylvania General Assembly intended to
prohibit,
Commonwealth v. Wright, 508 Pa. 25, 42,
494
A.2d 354, 363 (1985) (Larsen, J., concurring);
id. at
49, 494 A.2d at 366 (concurring opinion joined by the majority
opinion), and it recognized that evidence of such conduct would
mandate a
minimum sentence of imprisonment more than twice
as severe as the
maximum the trial judge would otherwise
have imposed on petitioner Dennison,
id. at 29, n. 1, 494
A.2d at 356, n. 1. But it nonetheless held that visible possession
of a firearm was not an element of the offense because the
Pennsylvania
Page 477 U. S. 96
General Assembly had the foresight to declare in § 9712(b) that
"Provisions of this section shall not be an element of the
crime."
It is common ground that
"the Due Process Clause requires the prosecution to prove beyond
a reasonable doubt all of the elements included in the definition
of the offense of which the defendant is charged."
Patterson v. New York, 432 U.
S. 197,
432 U. S. 210
(1977). Today, the Court holds that state legislatures may not only
define the offense with which a criminal defendant is charged, but
may also authoritatively determine that the conduct so described --
i.e., the prohibited activity which subjects the defendant
to criminal sanctions -- is not an element of the crime which the
Due Process Clause requires to be proved by the prosecution beyond
a reasonable doubt. In my view, a state legislature may not
dispense with the requirement of proof beyond a reasonable doubt
for conduct that it targets for severe criminal penalties. Because
the Pennsylvania statute challenged in this case describes conduct
that the Pennsylvania Legislature obviously intended to prohibit,
and because it mandates lengthy incarceration for the same, I
believe that the conduct so described is an element of the criminal
offense to which the proof beyond a reasonable doubt requirement
applies.
Once a State defines a criminal offense, the Due Process Clause
requires it to prove any component of the prohibited transaction
that gives rise to both a special stigma and a special punishment
beyond a reasonable doubt. This much has been evident at least
since
In re Winship, 397 U. S. 358
(1970). In that case, the Court "explicitly" held that
"the Due Process Clause 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."
397 U. S. @ at
364. In reasoning to this conclusion, the Court reviewed the
heritage of the rule that Justice Frankfurter characterized as
"basic in our law and rightly one of the boasts of
Page 477 U. S. 97
a free society," [
Footnote 2/1]
and -- of critical importance to the decision before us --
explained the reasons that undergird the rule:
"The reasonable doubt standard plays a vital role in the
American scheme of criminal procedure. It is a prime instrument for
reducing the risk of convictions resting on factual error. The
standard provides concrete substance for the presumption of
innocence -- that bedrock 'axiomatic and elementary' principle
whose 'enforcement lies at the foundation of the administration of
our criminal law.'
Coffin v. United States,
[
156 U.S.
432,]
156 U. S. 453 [1895]. As the
dissenters in the New York Court of Appeals observed, and we
agree,"
"a person accused of a crime . . . would be at a severe
disadvantage, a disadvantage amounting to a lack of fundamental
fairness, if he could be adjudged guilty and imprisoned for years
on the strength of the same evidence as would suffice in a civil
case."
24 N.Y.2d [196], 205, 247 N.E.2d [253], 259 [1969].
"The requirement of proof beyond a reasonable doubt has this
vital role in our criminal procedure for cogent reasons. The
accused during a criminal prosecution has at stake interests of
immense importance, both because of the possibility that he may
lose his liberty upon conviction and because of the certainty that
he would be stigmatized by the conviction. Accordingly, a society
that values the good name and freedom of every individual should
not condemn a man for commission of a crime when there is
reasonable doubt about his guilt."
Id. at
397 U. S.
363-364.
Page 477 U. S. 98
In re Winship thus took a purposive approach to the
constitutional standard of proof when the State threatens to
stigmatize or incarcerate an individual for engaging in prohibited
conduct, it may do so only if it proves the elements of the
prohibited transaction beyond a reasonable doubt. [
Footnote 2/2]
It is true, as the Court points out, that
"[t]he applicability of the reasonable doubt standard . . . has
always been dependent on how a State defines the offense that is
charged in any given case."
See ante at
477 U. S. 85
(quoting
Patterson v. New York, 432 U.S. at
432 U. S. 211,
n. 12). A State's freedom in this regard, however, has always been
understood to reflect the uncontroversial proposition that a State
has power, subject of course to constitutional limits, to attach
criminal penalties to a wide variety of objectionable transactions;
when it does so, the prosecution need establish beyond a reasonable
doubt only the constituent elements of the specified criminal
transaction. Nothing in
Patterson or any of its
predecessors authorizes a State to decide for itself which of the
ingredients of the prohibited transaction are "elements" that it
must prove beyond a reasonable doubt at trial.
Indeed, contrary to the supposition of the majority,
Patterson v. New York is entirely in keeping with the
limit on state definitional power implied in
Winship.
Patterson was charged with second-degree murder, a crime which in
New York included two elements: "
intent to cause the death of
another person'" and "`caus[ing] the death of such person or of a
third person.'" 432 U.S. at 432 U. S. 198
(quoting N.Y.Penal Law § 125.25 (McKinney 1975)). "Malice
aforethought [was] not an element of the crime." 432 U.S. at
432 U. S. 198.
Because
Page 477 U. S.
99
"causing the death of another person with intent to do so,"
id. at 432 U. S. 205,
was "an act which . . . the State may constitutionally criminalize
and punish," id. at 432 U. S. 209;
accord, id. at 432 U. S. 208,
and because New York in fact proscribed and punished that conduct,
id. at 432 U. S. 206,
the Court upheld the State's refusal to
"prove beyond a reasonable doubt every fact, the existence or
nonexistence of which it [was] willing to recognize as an
exculpatory or mitigating circumstance affecting the
degree of culpability or the severity of the punishment,"
id. at
432 U. S. 207
(emphasis added) -- in that case, the affirmative defense of
extreme emotional disturbance. The Court explained that "the Due
Process Clause did not invalidate every instance of burdening the
defendant with proving
an exculpatory fact."
Id.
at
432 U. S. 203,
n. 9 (emphasis added).
"To recognize at all a
mitigating circumstance does not
require the State to prove its nonexistence in each case in which
the fact is put in issue."
Id. at
432 U. S. 209
(emphasis added).
Patterson thus clarified that the Due
Process Clause requires proof beyond a reasonable doubt of conduct
which exposes a criminal defendant to greater stigma or punishment,
but does not likewise constrain state reductions of criminal
penalties -- even if such reductions are conditioned on a
prosecutor's failure to prove a fact by a preponderance of the
evidence or on proof supplied by the criminal defendant. [
Footnote 2/3]
Page 477 U. S. 100
The distinction between aggravating and mitigating facts has
been criticized as formalistic. But its ability to identify genuine
constitutional threats depends on nothing more than the continued
functioning of the democratic process. To appreciate the difference
between aggravating and mitigating circumstances, it is important
to remember that, although States may reach the same destination
either by criminalizing conduct and allowing an affirmative defense
or by prohibiting lesser conduct and enhancing the penalty,
legislation proceeding along these two paths is very different,
even if it might theoretically achieve the same result. Consider,
for example, a statute making presence "in any private or public
place" a "felony punishable by up to five years' imprisonment" and
yet allowing "an affirmative defense for the defendant to prove, to
a preponderance of the evidence, that he was not robbing a bank."
Dutile, The Burden of Proof in Criminal
Page 477 U. S. 101
Cases: A Comment on the
Mullaney-Patterson Doctrine, 55
Notre Dame Law. 380, 383 (1980). No democratically elected
legislature would enact such a law, and if it did, a broad-based
coalition of bankers and bank customers would soon see the
legislation repealed. [
Footnote
2/4] Nor is there a serious danger that a State will soon
define murder to be the
"mere physical contact between the defendant and the victim
leading to the victim's death, but then set up an affirmative
defense leaving it to the defendant to prove that he acted without
culpable
mens rea."
Patterson v. New York, 432 U.S. at
432 U. S. 224,
n. 8 (POWELL, J., dissenting). No legislator would be willing to
expose himself to the severe opprobrium and punishment meted out to
murderers for an accidental stumble on the subway. For similar
reasons, it can safely be assumed that a State will not "define all
assaults as a single offense, and then require the defendant to
disprove the elements of aggravation."
Mullaney v. Wilbur,
421 U. S. 684,
421 U. S.
699,
Page 477 U. S. 102
n. 24 (1975). The very inconceivability of the hypothesized
legislation -- all of which has been sincerely offered to
illustrate the dangers of permitting legislative mitigation of
punishment in derogation of the requirement of proof beyond a
reasonable doubt -- is reason enough to feel secure that it will
not command a majority of the electorate. [
Footnote 2/5]
It is not at all inconceivable, however, to fear that a State
might subject those individuals convicted of engaging in antisocial
conduct to further punishment for aggravating conduct not proved
beyond a reasonable doubt. As this case demonstrates, a State may
seek to enhance the deterrent effect of its law forbidding the use
of firearms in the course of felonies by mandating a minimum
sentence of imprisonment upon proof by a preponderance against
those already convicted of specified crimes. But
In re
Winship and
Patterson teach that a State may not
advance the objectives of its criminal laws at the expense of the
accurate factfinding owed to the criminally accused who suffer the
risk of nonpersuasion.
It would demean the importance of the reasonable doubt standard
-- indeed, it would demean the Constitution itself -- if the
substance of the standard could be avoided by nothing more than a
legislative declaration that prohibited conduct is not an "element"
of a crime. A legislative definition of an offense named "assault"
could be broad enough to encompass every intentional infliction of
harm by one person upon another, but surely the legislature could
not provide that only that fact must be proved beyond a reasonable
doubt, and then specify a range of increased punishments if the
prosecution could show by a preponderance of the evidence that the
defendant robbed, raped, or killed his victim "during the
commission of the offense."
Page 477 U. S. 103
Appropriate respect for the rule of
In re Winship
requires that there be some constitutional limits on the power of a
State to define the elements of criminal offenses. The high
standard of proof is required because of the immense importance of
the individual interest in avoiding both the loss of liberty and
the stigma that results from a criminal conviction. It follows, I
submit, that, if a State provides that a specific component of a
prohibited transaction shall give rise both to a special stigma and
to a special punishment, that component must be treated as a "fact
necessary to constitute the crime" within the meaning of our
holding in
In re Winship.
Pennsylvania's Mandatory Minimum Sentencing Act reflects a
legislative determination that a defendant who "visibly possessed a
firearm" during the commission of an aggravated assault is more
blameworthy than a defendant who did not. A judicial finding that
the defendant used a firearm in an aggravated assault places a
greater stigma on the defendant's name than a simple finding that
he committed an aggravated assault. And, not to be overlooked, such
a finding with respect to petitioner Dennison automatically
mandates a punishment that is more than twice as severe as the
maximum punishment that the trial judge considered
appropriate for his conduct.
It is true, as the Court points out, that the enhanced
punishment is within the range that was authorized for any
aggravated assault. That fact does not, however, minimize the
significance of a finding of visible possession of a firearm
whether attention is focused on the stigmatizing or punitive
consequences of that finding.
See Mullaney v. Wilbur, 421
U.S. at
421 U. S.
697-698. [
Footnote 2/6]
The finding identifies conduct that the legislature specifically
intended to prohibit and to punish by a
Page 477 U. S. 104
special sanction. In my opinion, the constitutional significance
of the special sanction cannot be avoided by the cavalier
observation that it merely "ups the ante" for the defendant.
See ante at
477 U. S. 88,
477 U. S. 89. No
matter how culpable petitioner Dennison may be, the difference
between 11 1/2 months and 5 years of incarceration merits a more
principled justification than the luck of the draw.
I respectfully dissent.
[
Footnote 2/1]
Leland v. Oregon, 343 U. S. 790,
343 U. S. 803
(1952) (Frankfurter, J., dissenting). Later in his opinion, he
noted that the
"duty of the State of establishing every fact of the equation
which adds up to a crime, and of establishing it to the
satisfaction of a jury beyond a reasonable doubt, is the decisive
difference between criminal culpability and civil liability."
Id. at
343 U. S.
805.
[
Footnote 2/2]
"The combination of stigma and loss of liberty involved in a
conditional or absolute sentence of imprisonment sets that sanction
apart from anything else the law imposes."
Packer,
Mens Rea and the Supreme Court, 1962 S.Ct.Rev.
107, 150. The requirement that conduct subjecting an individual to
a special stigma and a special punishment be proved beyond a
reasonable doubt therefore casts no doubt on the constitutionality
of criminal restitution ordered on a lesser standard of proof.
[
Footnote 2/3]
The
Patterson Court also recognized other
"constitutional limits beyond which the States may not go in this
regard," 432 U.S. at
432 U. S. 210,
citing
Tot v. United States, 319 U.
S. 463,
319 U. S. 469
(1943), and other cases invalidating statutory presumptions. It was
on the basis of these cases that
Patterson distinguished
the Maine statute struck down in
Mullaney v. Wilbur,
421 U. S. 684
(1975). The Maine murder statute prescribed life imprisonment for
"Whoever unlawfully kills a human being
with malice
aforethought," Me.Rev.Stat.Ann., Tit. 17, § 2651 (1964)
(emphasis added), and the trial judge had charged the jury that
"
malice aforethought is an essential and indispensable element
of the crime of murder,'" 421 U.S. at 421 U. S. 686
(quoting App. in No. 74-13, O.T. 1974, p. 40). Likewise, the
Government conceded that the federal enactment in Tot
proscribed only receipt of firearms in interstate commerce. See
Tot v. United States, 319 U.S. at 319 U. S. 466.
Patterson clarified that Mullaney, like
Tot, stood for the proposition that
"shifting of the burden of persuasion with respect to a fact
which the State deems so important that it must be either proved or
presumed is impermissible under the Due Process
Clause."
432 U.S. at
432 U. S. 215
(emphasis added).
Cf. United States v. Romano,
382 U. S. 136,
382 U. S. 138,
382 U. S. 144
(1965). Thus, although Maine could have punished all unlawful,
intentional killings with life imprisonment, just as Congress in
Tot could have punished possession of a firearm by one
convicted of a crime of violence, in neither case did the
legislature do so. This explanation, although not entirely
satisfactory,
see State v. Lafferty, 309 A.2d
647, 664-665 (Me.1973);
id. at 672-673 (Wernick, J.,
concurring), is consistent with the Maine Supreme Court's
explanation on direct appeal that state law presumed malice.
See State v. Wilbur, 278 A.2d
139, 145-146 (Me.1971). The state court downplayed this
presumption because
"no burden is imposed upon defendant until the State has first
convinced the jury beyond a reasonable doubt that defendant is
guilty of a voluntary and intentional homicide,"
at which point the issue "is no longer guilt or innocence of
felonious homicide, but rather the degree of the homicide."
Id. at 146. As we held in
Mullaney,
"[t]he safeguards of due process are not rendered unavailable
simply because a determination may already have been reached that
would stigmatize the defendant and that might lead to a significant
impairment of personal liberty."
421 U.S. at
421 U. S. 698.
Accord, Specht v. Patterson, 386 U.
S. 605,
386 U. S.
608-611 (1967).
[
Footnote 2/4]
Cf. Ashford & Risinger, Presumptions, Assumptions,
and Due Process in Criminal Cases: A Theoretical Overview, 79 Yale
L.J. 165, 178 (1969) ("In the first statute, a legislature has
deemed three factors germane to punishment: (a) presence of the
individual; (b) the presence of narcotics in the house; and (c) the
defendant's knowledge. In the second statute, only two factors are
deemed germane to whether an individual will be punished: (a)
presence of the individual; (b) the presence of narcotics in the
house. The electorate might approve of the passage of the first
statute, but not the passage of the second. The fact that a
legislature might pass the second statute does not mean that, given
the political temperament of the state, the legislature would, in
fact, have passed it. If the legislature nominally recognizes
knowledge as germane (as it did in the first statute) and further,
as the type of germane issue to be proved by the state, and then
arranges its process so that most of those who lack knowledge are
still sent to jail (as though the second statute had been passed),
then those individuals are being punished for a crime which has
never undergone the political checks guaranteed by representative
government"); Note, The Constitutionality of Affirmative Defenses
after
Patterson v. New York, 78 Colum.L.Rev. 655, 667
(1978) ("[A]lthough a state legislature might have decided to
define an offense without the mitigating or exculpatory factor,
there is no reason to suppose it would have done so, or given the
political climate of the state, could have done so").
[
Footnote 2/5]
See J. Ely, Democracy and Distrust 183 (1980)
("constitutional law appropriately exists for those situations
where representative government cannot be trusted, not those where
we know it can").
See also id. at
477 U. S.
182-183.
[
Footnote 2/6]
It is likewise irrelevant that petitioners had first been
convicted of predicate felonies.
"Under our system of criminal justice, even a thief is entitled
to complain that he has been unconstitutionally convicted and
imprisoned as a burglar."
Jackson v. Virginia, 443 U. S. 307,
443 U. S.
323-324 (1979).
See 477 U.S.
79fn2/3|>n. 3,
supra.