Amdt6.3.1.2.1.1 When the Right to a Jury Trial Applies: Current Doctrine

Sixth Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

The Sixth Amendment is phrased in terms of all criminal prosecutions, but the Court has always excluded petty offenses from the guarantee to a jury trial in federal courts, defining the line between petty and serious offenses either by the maximum punishment available¹ or by the nature of the offense.² This line has been adhered to in the application of the Sixth Amendment to the states,³ 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.⁴ 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.⁵

The Court has also made some changes in the meaning of the term criminal proceeding. Previously, the term had been applied only to situations in which a person has been accused of an offense by information or presentment.⁶ Thus, a civil action to collect statutory penalties and punitive damages, because not technically criminal, has been held not to implicate the right to jury trial.⁷ Subsequently, however, the Court focused its analysis on the character of the sanction to be imposed, holding that punitive sanctions may not be imposed without adhering to the guarantees of the Fifth and Sixth Amendments.⁸ 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.⁹

In a long line of cases, the Court had held that no constitutional right to jury trial existed in trials of criminal contempt.¹⁰ In Bloom v. Illinois ,¹¹ however, 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 ineligible for the death penalty because of mental illness or intellectual disability.¹²

Within the context of a criminal trial, what factual issues are submitted to the jury was traditionally determined by whether the fact to be established is an element of a crime or instead is a sentencing factor.¹³ Under this approach, the right to a jury had extended to the finding of all facts establishing the elements of a crime, but sentencing factors could be evaluated by a judge.¹⁴ 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.¹⁵

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.¹⁶ The relevant inquiry is one not of form, but of effect.¹⁷ 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. ¹⁸ The one exception Apprendi recognized was for sentencing enhancements based on recidivism.¹⁹ In Alleyne v. United States , the Court extended Apprendi to require that any fact that increases the mandatory minimum [sentence] . . . must be submitted to the jury.²⁰

Apprendi ’s importance soon became evident as the Court applied its reasoning in other situations to strike down state or federal laws on Sixth Amendment grounds.²¹ In Ring v. Arizona , the Court 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.²² Although Arizona had 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 held that a jury must make those findings if existence of particular facts is a precondition for imposing a judgment within a particular range.²³ Similarly, in Hurst v. Florida , the Court applied Apprendi , as well as the precedent of Ring , to invalidate a Florida statute authorizing a hybrid proceeding in which the jury renders an advisory verdict[,] but the judge makes the ultimate sentencing determination[.]²⁴ According to the Court, such proceedings run afoul of the Sixth Amendment because the judge, not the jury, makes the findings of fact that are necessary before imposing death penalty.²⁵

In Blakely v. Washington ,²⁶ the Court applied Apprendi to cast doubt on types of widely adopted reform measures that were intended to foster more consistent sentencing practices. Blakely, who pled guilty to an offense for which the standard range under the Washington 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 conformed to statutory limits, 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.²⁷

Then, in United States v. Booker ,²⁸ the Court held that the same principles limit sentences that courts may impose under the federal Sentencing Guidelines.²⁹ 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.³⁰ Attempts to distinguish Blakely were rejected. The Court concluded that the fact that the Guidelines were developed by the Sentencing Commission rather than by Congress lacks constitutional significance.³¹ Instead, the Guidelines were suspect in application because, on the one hand, they curtailed the role of jury factfinding in determining the upper range of a sentence and, on the other hand, they mandated sentences from which a court could depart only in a limited number of cases and after separately finding the existence of factors not presented to the jury.³² The mandatory nature of the Guidelines was also important to the Court's formulation of a remedy.³³ Rather than engrafting a jury trial requirement onto the Sentencing Reform Act, under which the Guidelines were adopted, the Court instead invalidated two of its provisions, one making application of the Guidelines mandatory, and, concomitantly, one requiring de novo review for appeals of departures from the mandatory Guidelines, and held that the remainder of the Act could remain intact.³⁴ 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.³⁵

In Cunningham v. California ,³⁶ the Court addressed 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, and its implementing rules, 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. 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.³⁷ The state argued that this latter provision conformed the California sentencing scheme to Booker , which contemplated that judges retain discretion to select a specific sentence within a statutory range, subject to appellate review to determine reasonableness. The Court rejected this argument, finding that the scheme impermissibly allocated sole authority to judges to find the facts that permitted imposition of a higher alternative sentence.³⁸

The Court, however, has refused to extend Apprendi to a judge's decision to impose sentences for discrete crimes consecutively rather than concurrently.³⁹ 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.⁴⁰ The Court held that twin considerations—historical practice and respect for state sovereignty—counsel against extending Apprendi 's rule to preclude judicial fact-finding in this situation, as well.⁴¹

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.⁴² 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. . . . 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.⁴³

In United States v. Gall ,⁴⁴ 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.⁴⁵The 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.⁴⁶

Subsequently, in Spears v. United States ,⁴⁷ 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.⁴⁸ 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.⁴⁹

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 ,⁵⁰ the Court distinguished this sentence modification process from a sentencing or resentencing, and upheld mandatory limits on judicial reductions of sentences under it.

A splintered Court extended Apprendi and its progeny to the setting of a supervised release revocation in United States v. Haymond .⁵¹ Haymond centered on the constitutionality of 18 U.S.C. § 3583(k), which provided (among other things) that if a judge finds by the preponderance of the evidence that a sex-offender defendant on supervised release has committed one of several enumerated offenses, including the possession of child pornography, the judge must impose an additional term of imprisonment of at least five years and up to life, regardless of the nature of the initial crime of conviction.⁵² A felon who was found with child pornography while on supervised release and was sentenced under § 3583(k) challenged the constitutionality of that law.⁵³ A four-Justice plurality concluded in an opinion by Justice Gorsuch that the statute was unconstitutional, at least as applied to the defendant’s case.⁵⁴ Citing Apprendi and Alleyne , the plurality reasoned that because the statute compelled a judge to sentence the defendant to a minimum of five years in prison without empaneling a jury or requiring the government to prove his guilt beyond a reasonable doubt, the application of the statute to the defendant violated the Fifth and Sixth Amendments.⁵⁵

Providing a fifth vote on the constitutional question, Justice Breyer concurred only in the judgment of the Court.⁵⁶ His opinion limited the scope of the plurality opinion, which he argued could potentially reach other, more commonplace provisions governing supervised release proceedings.⁵⁷ Specifically, Justice Breyer distinguished ordinary supervised release proceedings, which typically result in fairly limited terms of imprisonment based on the severity of the original crime, from § 3583(k) because the latter (1) mandated that the judge impose a minimum term of imprisonment that (2) applied only when a defendant committed a discrete set of criminal offenses.⁵⁸ Consequently, rather than constituting an ordinary revocation of supervised release, in Justice Breyer’s view the statute more closely resemble[d] the punishment of new criminal offenses without the protection of Fifth and Sixth Amendment rights.⁵⁹