The Attributes and Function of the Jury
Criminal Proceedings to Which the Guarantee Applies.— Although the Sixth Amendment provision does not differentiate among types of criminal proceedings in which the right to a jury trial is or is not present, the Court has always excluded petty offenses from the guarantee in federal courts, defining the line between petty and serious offenses either by the maximum punishment available70 or by the nature of the offense.71 This line has been adhered to in the application of the Sixth Amendment to the States72 and the Court has now held "that no offense can be deemed 'petty' for purposes of the right to trial by jury where imprisonment for more than six months is authorized."73 A defendant who is prosecuted in a single proceeding for multiple petty offenses, however, does not have a constitutional right to a jury trial, even if the aggregate of sentences authorized for the offense exceeds six months.74
The Court has also made some changes in the meaning attached to the term "criminal proceeding." Previously, it had been applied only to situations in which a person has been accused of an offense by information or presentment.75 Thus, a civil action to collect statutory penalties and punitive damages, because not technically criminal, has been held to implicate no right to jury trial.76 But more recently the Court has held denationalization to be punishment which Congress may not impose without adhering to the guarantees of the Fifth and Sixth Amendments,77 and the same type of analysis could be used with regard to other sanctions. There is, however, no constitutional right to a jury trial in juvenile proceedings, at least in state systems and probably in the federal system as well.78
70 District of Columbia v. Clawans, 300 U.S. 617 (1937); Schick v. United States, 195 U.S. 65 (1904); Callan v. Wilson, 127 U.S. 540 (1888).
71 District of Columbia v. Colts, 282 U.S. 63 (1930).
72 Duncan v. Louisiana, 391 U.S. 145, 159-62 (1968); Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216 (1968).
73 Baldwin v. New York, 399 U.S. 66, 69 (1970). Justices Black and Douglas would have required a jury trial in all criminal proceedings in which the sanction imposed bears the indicia of criminal punishment. Id. at 74 (concurring); Cheff v. Schnackenberg, 384 U.S. 373, 384, 386 (1966) (dissenting). Chief Justice Burger and Justices Harlan and Stewart objected to setting this limitation at six months for the States, preferring to give them greater leeway. Baldwin, 399 U.S. at 76; Williams v. Florida, 399 U.S. 78, 117, 143 (1970) (dissenting). No jury trial was required when the trial judge suspended sentence and placed defendant on probation for three years. Frank v. United States, 395 U.S. 147 (1969). There is a presumption that offenses carrying a maximum imprisonment of six months or less are "petty," although it is possible that such an offense could be pushed into the "serious" category if the legislature tacks on onerous penalties not involving incarceration. No jury trial is required, however, when the maximum sentence is six months in jail, a fine not to exceed $1,000, a 90-day driver's license suspension, and attendance at an alcohol abuse education course. Blanton v. City of North Las Vegas, 489 U.S. 538, 542-44 (1989) .
74 Lewis v. United States, 518 U.S. 322 (1996).
75 United States v. Zucker, 161 U.S. 475, 481 (1896).
76 Id. See also Oceanic Steam Navigation Co. v. Stranahan, 214 U.S. 320 (1909); Hepner v. United States, 213 U.S. 103 (1909).
77 Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963).
78 McKeiver v. Pennsylvania, 403 U.S. 528 (1971).
In a long line of cases, the Court had held that no constitutional right to jury trial existed in trials of criminal contempt.79 But in Bloom v. Illinois,80 the Court announced that "[o]ur deliberations have convinced us . . . that serious contempts are so nearly like other serious crimes that they are subject to the jury trial provisions of the Constitution . . . and that the traditional rule is constitutionally infirm insofar as it permits other than petty contempts to be tried without honoring a demand for a jury trial." The Court has consistently held, however, that a jury is not required for purposes of determining whether a defendant is insane or mentally retarded and consequently not eligible for the death penalty.3
Within the context of a criminal trial, what factual issues are submitted to the jury has traditionally been determined by whether the fact to be established is an element of a crime or instead is a sentencing factor.4 Under this approach, the right to a jury extends to the finding of all facts establishing the elements of a crime, but sentencing factors may be evaluated by a judge.5 Evaluating the issue primarily under the Fourteenth Amendment’s Due Process Clause, the Court initially deferred to Congress and the states on this issue, allowing them broad leeway in determining which facts are elements of a crime and which are sentencing factors.6
Breaking with this tradition, however, the Court in Apprendi v. New Jersey held that a sentencing factor cannot be used to increase the maximum penalty imposed for the underlying crime.7 “The relevant inquiry is one not of form, but of effect.”8 Apprendi had been convicted of a crime punishable by imprisonment for no more than ten years, but had been sentenced to 12 years based on a judge's findings, by a preponderance of the evidence, that enhancement grounds existed under the state’s hate crimes law. “[A]ny fact that increases the penalty for a crime beyond the prescribed statutory maximum,” the Court concluded, “must be submitted to a jury, and proved beyond a reasonable doubt.”9 The one exception the Apprendi Court recognized was for sentencing enhancements based on recidivism.10
Apprendi’s importance soon became evident as the Court applied its reasoning in other situations. In Ring v. Arizona,11 the Court, overruling precedent,12 applied Apprendi to invalidate an Arizona law that authorized imposition of the death penalty only if the judge made a factual determination as to the existence of any of several aggravating factors. Although Arizona required that the judge's findings as to aggravating factors be made beyond a reasonable doubt, and not merely by a preponderance of the evidence, the Court ruled that those findings must be made by a jury.13
In Blakely v. Washington,14 the Court sent shock waves through the federal as well as state sentencing systems when it applied Apprendi to invalidate a sentence imposed under Washington State’s sentencing statute. Blakely, who pled guilty to an offense for which the “standard range” under the state’s sentencing law was 49 to 53 months, was sentenced to 90 months based on the judge’s determination — not derived from facts admitted in the guilty plea — that the offense had been committed with “deliberate cruelty,” a basis for an “upward departure” under the statute. The 90-month sentence was thus within a statutory maximum, but the Court made “clear . . . that the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. In other words, the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.”15
Then, in United States v. Booker,16 the Court held that the same principles limit sentences that courts may impose under the federal Sentencing Guidelines. As the Court restated the principle in Booker, “[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.”17 Attempts to distinguish Blakely were rejected. Because the Sentencing Reform Act made application of the Guidelines “mandatory and binding on all judges,”18 the Court concluded that the fact that the Guidelines were developed by the Sentencing Commission rather than by Congress “lacks constitutional significance.19 The mandatory nature of the Guidelines was also important to the Court’s formulation of a remedy.20 Rather than engrafting a jury trial requirement onto the Sentencing Reform Act, the Court instead invalidated two of its provisions, one making application of the Guidelines mandatory, and one requiring de novo review for appeals of departures from the mandatory Guidelines, and held that the remainder of the Act could remain intact.21 As the Court explained, this remedy “makes the Guidelines effectively advisory. It requires a sentencing court to consider Guidelines ranges, but it permits the court to tailor the sentence in light of other statutory concerns as well.”22
In Cunningham v. California,23 the Court considered whether California’s determinate state sentencing law, yet another style of legislative effort intended to regularize criminal sentencing, survived the Booker-Blakely line of cases. That law required that the trial judge in the case sentence the defendant to 12 years in prison unless the judge found one or more additional “circumstances in aggravation,” in which case the sentence would be 16 years. Although such aggravating circumstances could include specific factual findings made by a judge under a “preponderance of the evidence” standard in apparent violation of Booker and Blakely, the court was also free to consider “additional criteria reasonably related to the decision being made.”24 The state argued that this latter provision of the Rule was consistent with a still-undeveloped holding by the Court in Booker that even the now-advisory federal sentencing guidelines would remain subject to appellate review to determine “reasonableness.”25 The Court rejected this argument, finding that the discretion afforded the trial court by the California law did not eliminate the unconstitutional requirement that the court make the factual findings that imposed a higher prison term. 26
The Court, however, has refused to apply Apprendi’s principles to judicial factfinding that supports imposition of mandatory minimum sentences.27 The Court has also refused to extend Apprendi to a judge’s decision to impose sentences for discrete crimes consecutively rather than concurrently.28 The Court explained that, when a defendant has been convicted of multiple offenses, each involving discrete sentencing prescriptions, the states apply various rules regarding whether a judge may impose the sentences consecutively or concurrently.29 The rule that was before the Court in Oregon v. Ice presumed that sentences will run concurrently but to allow judges to impose consecutive sentences upon finding certain facts, such as that the defendant’s crimes caused “separate harms” to the victim.30 The Court held that “twin considerations — historical practice and respect for state sovereignty — counsel against extending Apprendi’s rule” to preclude judicial factfinding in this situation as well.31
In Rita v. United States, the Court upheld the application, by federal courts of appeals, of the presumption “that a sentence imposed within a properly calculated United States Sentencing Guidelines range is a reasonable sentence.”32 Even if “the presumption increases the likelihood that the judge, not the jury, will find ‘sentencing facts,’” the Court wrote, it “does not violate the Sixth Amendment. This Court’s Sixth Amendment cases do not automatically forbid a sentencing court to take account of factual matters not determined by a jury and to increase the sentence in consequence. Nor do they prohibit the sentencing judge from taking account of the Sentencing Commission’s factual findings or recommended sentences. See Cunningham v. California … The Sixth Amendment question, the Court has said, is whether the law forbids a judge to increase a defendant’s sentence unless the judge finds facts that the jury did not find (and the offender did not concede)… A nonbinding appellate presumption that a Guidelines sentence is reasonable does not require the judge to impose that sentence. Still less does it forbid the sentencing judge from imposing a sentence higher than the Guidelines provide for the jury-determined facts standing alone.”33
In United States v. Gall,34 the Court held that, “while the extent of the difference between a particular sentence and the recommended Guidelines range is surely relevant, courts of appeals must review all sentences — whether inside, just outside, or significantly outside the Guidelines range — under a deferential abuse-of-discretion standard.”35 The Court rejected “an appellate rule that requires ‘extraordinary’ circumstances to justify a sentence outside the Guidelines range,” and also rejected “the use of a rigid mathematical formula that uses the percentage of a departure as the standard for determining the strength of the justifications required for a specific sentence.” These approaches, the Court said, “come too close to creating an impermissible presumption of unreasonableness for sentences outside the Guidelines range.”36
Subsequently, in Spears v. United States,37 the Court, emphasizing that the Guidelines “are advisory only,” clarified “that district courts are entitled to reject and vary categorically from the . . . Guidelines based on a policy disagreement with those Guidelines.”38 In Spears, a district court had given a defendant a sentence significantly below the Guidelines for distribution of crack cocaine, noting that the Guidelines required 100 times more powder cocaine than crack cocaine to trigger a particular sentencing range. The Supreme Court held that, if a sentencing court believes “that the 100-to-1 ratio embodied in the sentencing guidelines for the treatment of crack cocaine versus powder cocaine creates ‘an unwarranted disparity within the meaning of [18 U.S.C.] § 3553(a),’” then it may vary downward from the Guidelines even when the particular defendant “presents no special mitigating circumstances” to justify a lower sentence.39
The Booker line of cases addresses the role of the Sentencing Guidelines in imposing and reviewing individual sentences. Booker, however, did not overturn the Sentencing Reform Act in its entirety, nor did it abolish the Guidelines themselves. One set of provisions left intact directed the Sentencing Commission to review the Guidelines periodically, authorized it to reduce the Guidelines range for individual offenses and make the reduced ranges retroactive, but also generally foreclosed a court from then reducing a sentence previously imposed to one less than the minimum contained in the amended Guideline range. In Dillon v. United States,40 the Court distinguished this sentence modification process from a sentencing or resentencing, and upheld mandatory limits on judicial reductions of sentences under it.
79 E.g., Green v. United States, 356 U.S. 165, 183-87 (1958), and cases cited; United States v. Burnett, 376 U.S. 681, 692-700 (1964), and cases cited. A Court plurality in Cheff v. Schnackenberg, 384 U.S. 373 (1966), held, asserting the Court's supervisory power over the lower federal courts, that criminal contempt sentences in excess of six months imprisonment could not be imposed without a jury trial or adequate waiver.
80 391 U.S. 194, 198 (1968). Justices Harlan and Stewart dissented. Id. at 215. As in other cases, the Court drew the line between serious and petty offenses at six months, but because, unlike other offenses, no maximum punishments are usually provided for contempts it indicated the actual penalty imposed should be looked to. Id. at 211. And see Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216 (1968). The distinction between criminal and civil contempt may be somewhat more elusive. International Union, UMW v. Bagwell, 512 U.S. 821 (1994) (fines levied on the union were criminal in nature where the conduct did not occur in the court's presence, the court's injunction required compliance with an entire code of conduct, and the fines assessed were not compensatory).
3 Ford v. Wainwright, 477 U.S. 399, 416-417 (1986); Atkins v. Virginia, 536 U.S. 304, 317 (2002); Schriro v. Smith, 546 U.S. 6, 7 (2005). See Eighth Amendment, “Limitations on Capital Punishment: Diminished Capacity,” infra.
4 In Washington v. Recuenco, however, the Court held that “[f]ailure to submit a sentencing factor to the jury, like failure to submit an element [of a crime] to the jury, is not structural error,” entitling the defendant to automatic reversal, but can be harmless error. 548 U.S. 212, 222 (2006).
5 In James v. United States, 550 U.S. 192 (2007), the Court found no Sixth Amendment issue raised when it considered “the elements of the offense . . . without inquiring into the specific conduct of this particular offender.” Id. at 1594 (emphasis in original). The question before the Court was whether, under federal law, attempted burglary, as defined by Florida law, “presents a serious potential risk of physical injury to another” and therefore constitutes a “violent felony,” subjecting the defendant to a longer sentence. Id. at 1591. In answering this question, the Court employed the “categorical approach” of looking only to the statutory definition and not considering the “particular facts disclosed by the record of conviction.” Id. at 1593-94. Thus, “the Court [was] engaging in statutory interpretation, not judicial factfinding,” and “[s]uch analysis raises no Sixth Amendment issue.” Id. at 1600.
6 For instance, the Court held that whether a defendant “visibly possessed a gun” during a crime may be designated by a state as a sentencing factor, and determined by a judge based on the preponderance of evidence. McMillan v. Pennsylvania, 477 U.S. 79 (1986). After resolving the issue under the Due Process Clause, the Court dismissed the Sixth Amendment jury trial claim as “merit[ing] little discussion.” Id. at 93. For more on the due process issue, see the discussion in the main text under “Proof, Burden of Proof, and Presumptions.”
7 530 U.S. 466, 490 (2000).
8 530 U.S. at 494. “[M]erely because the state legislature placed its hate crime sentence enhancer within the sentencing provisions of the criminal code does not mean that the finding of a biased purpose to intimidate is not an essential element of the offense.” Id. at 495 (internal quotation omitted).
9 530 U.S. at 490.
10 530 U.S. at 490. Enhancement of sentences for repeat offenders is traditionally considered a part of sentencing, and a judge may find the existence of previous valid convictions even if the result is a significant increase in the maximum sentence available. Almendarez-Torres v. United States, 523 U.S. 224 (1998) (deported alien reentering the United States is subject to a maximum sentence of two years, but upon proof of a felony record, is subject to a maximum of twenty years). See also Parke v. Raley, 506 U.S. 20 (1992) (if the prosecutor has the burden of establishing a prior conviction, a defendant can be required to bear the burden of challenging its validity).
11 536 U.S. 584 (2002).
12 Walton v. Arizona, 497 U.S. 639 (1990). Ring also appears to overrule some other decisions on the same issue, such as Spaziano v. Florida, 468 U.S. 447 (1984), and Hildwin v. Florida, 490 U.S. 638, 640-41 (1989) (per curiam), and undercuts the reasoning of another. See Clemons v. Mississippi, 494 U.S. 738 (1990) (appellate court may reweigh aggravating and mitigating factors and uphold imposition of death penalty even though jury relied on an invalid aggravating factor).
13 “Because Arizona’s enumerated aggravating factors operate as ‘the functional equivalent of an element of a greater offense,’ . . . the Sixth Amendment requires that they be found by a jury.” 536 U.S. at 609. The Court rejected Arizona’s request that it recognize an exception for capital sentencing in order not to interfere with elaborate sentencing procedures designed to comply with the Eighth Amendment. Id. at 605-07.
14 542 U.S. 296 (2004).
15 542 U.S. at 303-304 (italics in original; citations omitted).
16 543 U.S. 220 (2005).
17 543 U.S. at 244.
18 543 U.S. at 233.
19 543 U.S. at 237. Relying on Mistretta v. United States, 488 U.S. 361 (1989), the Court also rejected a separation-of-powers argument. Id. at 754-55.
20 There were two distinct opinions of the Court in Booker. The first, authored by Justice Stevens and joined by Justices Scalia, Souter, Thomas, and Ginsburg (the same Justices who comprised the five-Justice Blakely majority), applied Blakely to find a Sixth Amendment violation; the other, authored by Justice Breyer, and joined by Chief Justice Rehnquist and Justices O’Connor, Kennedy, and Ginsburg (the Blakely dissenters joined by Justice Ginsburg), set forth the remedy.
21 543 U.S. at 259.
22 543 U.S. at 245-246 (statutory citations omitted).
23 549 U.S. 270 (2007).
24 549 U.S. at 278-79, quoting California Rules 4.420(b), 4.408(a).
25 In Booker, the Court substituted a “reasonableness” standard for the statutory de novo appellate review standard that it struck down. 543 U.S. at 262.
26 “The reasonableness requirement that Booker anticipated for the federal system operates within the Sixth Amendment constraints delineated in our precedent, not as a substitute for those constraints.” 549 U.S. at 292-93. The Court also rejected the argument that the discretion given to the judge made the California system “advisory” and thus consistent with the remedy established in Booker. Id. at 292.
27 Prior to its decision in Apprendi, the Court had held that factors determinative of minimum sentences could be decided by a judge. McMillan v. Pennsylvania, 477 U.S. 79 (1986). Although the vitality of McMillan was put in doubt by Apprendi, McMillan was subsequently reaffirmed in Harris v. United States, 536 U.S. 545, 568-69 (2002). Five Justices in Harris thought that factfinding required for imposition of mandatory minimums fell within Apprendi’s reasoning, but one of the five, Justice Breyer, concurred in the judgment on practical grounds despite his recognition that McMillan was not “easily” distinguishable “in terms of logic.” 536 U.S. at 569. Justice Thomas’ dissenting opinion, id. at 572, joined by Justices Stevens, Souter, and Ginsburg, elaborated on the logical inconsistency, and suggested that the Court’s deference to Congress’ choice to treat mandatory minimums as sentencing factors made avoidance of Apprendi a matter of “clever statutory drafting.” Id. at 579.
28 Oregon v. Ice, 129 S. Ct. 711 (2009).
29 Most states follow the common-law tradition of giving judges unfettered discretion over the matter, while some states presume that sentences will run consecutively but allow judges to order concurrent sentences upon finding cause to do so. “It is undisputed,” the Court noted, “that States may proceed on [either of these] two tracks without transgressing the Sixth Amendment.” 129 S. Ct. at 714.
30 129 S. Ct. at 720 (Scalia, J., dissenting).
31 129 S. Ct. at 717. The Court also noted other decisions judges make that are likely to evade the strictures of Apprendi, including determining the length of supervised release, attendance at drug rehabilitation programs, terms of community service, and imposition of fines and orders of restitution. Id. at 719. Justice Scalia, joined by Chief Justice Roberts and Justices Souter and Thomas, dissented, finding the majority's applying Apprendi “only to the length of a sentence for an individual crime and not to the total sentence for a defendant . . . a strange exception to the treasured right of trial by jury.” Id. at 720.
32 551 U.S. 338, 341 (2007). The Court emphasized that it was upholding “an appellate court presumption. Given our explanation in Booker that appellate ‘reasonableness’ review merely asks whether the trial court abused its discretion, the presumption applies only on appellate review… [T]he sentencing court does not enjoy the benefit of a legal presumption that the Guidelines sentence should apply.” Id. at 2465, quoted in part in Nelson v. United States, 129 S. Ct. 891 (2009) (per curiam), where the Court added, “The Guidelines are not only not mandatory on sentencing courts; they are also not to be presumed reasonable.” Id. at 892 (emphasis in original).
33 551 U.S. at 352, 353 (emphasis in original). The Court added: “The fact that we permit courts of appeals to adopt a presumption of reasonableness does not mean that courts may adopt a presumption of unreasonableness… [A]ppellate courts may not presume that every variance from the advisory Guidelines is unreasonable… Several courts of appeals have also rejected a presumption of unreasonableness… However, a number of circuits adhere to the proposition that the strength of the justification needed to sustain an outside-Guidelines sentence varies in proportion to the degree of the variance… We will consider that approach next Term in United States v. Gall, No. 06-7949.” Id. at 2467.
34 128 S. Ct. 586 (2007) (upholding a sentence of probation where the Guidelines had recommended imprisonment).
35 128 S. Ct. at 591. “As explained in Rita and Gall, district courts must treat the Guidelines as the ‘starting point and the initial benchmark.’” Kimbrough v. United States, 128 S. Ct. 558 (2007) (upholding lower-than-Guidelines sentence for trafficker in crack cocaine, where sentence “is based on a disagreement with the sentencing disparity for crack and powder cocaine offenses”). A district court judge may determine “that, in the particular case, a within-Guidelines sentence is ‘greater than necessary’ to serve the objectives of sentencing.” Kimbrough, 128 S. Ct. at 564.
36 128 S. Ct. at 595. Justice Alito, dissenting, wrote, “we should not forget [that] . . . Booker and its antecedents are based on the Sixth Amendment right to trial by jury… It is telling that the rules set out in the Court’s opinion in the present case have nothing to do with juries or factfinding and, indeed, that not one of the facts that bears on petitioner’s sentence is disputed. What is at issue, instead, is the allocation of the authority to decide issues of substantive sentencing policy, an issue on which the Sixth Amendment says absolutely nothing. The yawning gap between the Sixth Amendment and the Court’ opinion should be enough to show that the Blakely-Booker line of cases has gone astray.” Id. at 605 (Alito, J., dissenting).
37 129 S. Ct. 840 (2009) (per curiam).
38 129 S. Ct. at 842, 843-44.
39 129 S. Ct. at 842.
40 Dillon v. United States, 130 S. Ct. 2683 (2010).
Last modified: June 9, 2014